For the majority of crimes, there are three key elements that must be satisfied before a defendant can be liable for an offence. These are:
•actus reus;
•mens rea;
•no defence.
Figure 1.3 Elements of a criminal offence
Where a defendant is charged with a criminal offence and has pleaded not guilty, the prosecution is obligated to prove (beyond a reasonable doubt) that the defendant satisfied each element of the offence in question. This will involve proof of the actus reus, mens rea and a lack of defence. Failure to prove one of these elements (or a sub-element therein) will mean that the defendant is ‘not guilty’ or ‘not liable’ for the offence in question.
We shall now consider each of these elements in brief detail before then developing these key concepts in their respective chapters.
in practice
The difference between ‘liability’ and ‘guilt’ is important. It is often expressed that if an individual is ‘liable’ for an offence, they are also ‘guilty’ of that offence. However, this is a misnomer. Whether an individual is liable is a question of both fact and law, observing the circumstances of the case. The police will identify an individual as ‘liable’ for an offence when charging them with such. The Crown Prosecution Service will identify an individual as ‘liable’ for an offence when it proceeds with the prosecution. However, neither of these parties will identify the ‘guilt’ of that individual; guilt (if contested) is to be determined by the arbiters of fact at trial (whether they be the jury or the magistrates). For the purposes of this text, therefore, we shall be referring only to whether an individual is ‘liable’ for a criminal offence (and you are advised to do the same in your own criminal work) – whether they are ‘guilty’ of that offence or not is out of our hands.
1.8.1 Actus reus
Rather loosely used to describe the ‘guilty act’, the actus reus (plural: actus rei) of an offence is often the physical element of a crime requiring the defendant to perform a certain act or engage in certain conduct in order to commit a criminal offence. The word ‘act’, however, is far too narrow a concept to be applicable in all circumstances.
Refer back to our example of Jack and Jill at 1.2.1, where Jill pushes Jack down the hill. Jill’s conduct of pushing Jack is an ‘act’, and thus the actus reus, or one element of the actus reus, for a potential offence against Jack may have been satisfied. Suppose, however, that Jack were to fall and asked Jill to help him to prevent him tumbling down the hill. Should Jill refuse to help, she has not performed an ‘act’. Rather, Jill has failed to act, also known as an omission.
Whether the failure to act will result in criminal charges being brought against Jill is a matter dependent on the circumstances. However, what can be made clear at this moment is that to define the actus reus as a ‘guilty act’ fails to account for the other circumstances and surrounding facts that may play a part in a criminal offence. As a result, therefore, it is more appropriate to use the term ‘guilty conduct and circumstances’ instead. An even broader definition of the actus reus is provided by Ormerod and Laird (Smith, Hogan, & Ormerod’s Criminal Law, 15th edn (OUP, 2018)) who comment that it includes ‘all the elements in the definition of the crime except D’s mental element’.
The following can be characterised as potentially amounting to the actus reus of a particular crime:
•acts;
•conduct;
•omissions;
•consequences;
•surrounding circumstances; and
•state of affairs.
When dealing with criminal offences in Parts II and III of this text, it will be made clear what form of actus reus we are concerned with. For the most part, we are concerned with what can helpfully be described as the ‘three Cs’.
We can examine the three Cs in more detail now:
Table 1.10Detailing the three C s
| Word | Explanation |
| Conduct | Represents any acts or omissions required by the defendant in order to commit the respective actus reus of the offence. For example, the offence of theft requires an ‘appropriation’. |
| Circumstances | Represents any surrounding factual circumstances or matters that must be present for the offence to take place. For example, the offence of theft requires property to ‘belong to another’. |
| Consequences | Represents the requirements for an end result to occur in order for an offence to be committed. Many offences do not require it. For example, the offence of theft does not require the actual property to be stolen; a mere intention to steal is sufficient. |
Certain offences may involve numerous different elements. As a quick example, take the offence of burglary. Burglary is a statutory offence contained within s 9 of the Theft Act (TA) 1968. Burglary is divided into two forms, contained in s 9(1)(a) and 9(1)(b) respectively. For our example, we shall consider s 9(1)(b), which concerns the circumstances where ‘having entered any building or part of a building as a trespasser, the defendant steals or attempts to steal anything in the building or that part of it or inflicts or attempts to inflict on any person therein any grievous bodily harm’.
Table 1.11 demonstrates the individual elements of the actus reus of a s 9(1)(b) burglary. This is but one example of many that will arise throughout this text. There may be offences which do not contain all of the ‘three Cs’, for example rape does not require the existence of an ‘end result’ or ‘consequence’. Rape requires the intentional penetration of the vagina, anus or mouth of another person with a penis (conduct) and such conduct must be done without consent and without a reasonable belief in consent (circumstance). Further examples are provided in Chapter 2.
Table 1.11Elements of the offence of burglar y
| Elements of burglary | Form of actus reus |
| Entry | Act/conduct |
| Building or part of a building | Surrounding circumstance |
| As a trespasser | Surrounding circumstance |
| Commits or attempts to commit theft or GBH | Act/conduct and consequence |
1.8.2 Mens rea
Rather loosely used to describe the ‘guilty mind’, the mens rea of an offence is the mental element of a crime, often requiring a defendant to intend the end result. Intention alone, however, does not satisfactorily encompass the spectrum of the mens rea. The first point to note is that the mens rea, like the actus reus, is unique to each particular crime. This was made clear by Lord