Take, for example, the mentes reae (plural of mens rea) of murder and common assault. Murder requires the intention to kill or cause grievous bodily harm (GBH), whereas the offence of common assault requires the intention to cause the apprehension of unlawful physical force or be reckless as to the thought of such apprehension occurring. As can be seen, both offences are unique in what is required to satisfy the mental element of the crime. The distinction between the two offences arises as a result of their classification as ‘specific’ and ‘basic’ intent offences, which we shall consider in Chapter 3.
Despite this, however, there are a number of concepts on which the mental element of a criminal offence is based; these are:
•intention;
•foreseeability;
•recklessness; and
•negligence.
We shall deal with each of these concepts in greater detail in Chapter 3 alongside the requirement of contemporaneity (or coincidence) of the actus reus and mens rea.
Importantly, as made clear above, there are offences that do not require any form of mens rea or fault. These offences are known as ‘strict liability offences’ and shall also be dealt with in Chapter 3. In summary, a defendant may be liable for a criminal offence simply by satisfying the actus reus without any corresponding mens rea. We shall also look at the term ‘absolute liability’ in Chapter 2 and compare that with strict liability.
1.8.3 No defence
The final element required for a defendant to be liable for an offence is the lack of a ‘defence’.
in practice
When defence counsel first reads the papers regarding the alleged offence committed by their client, they will consider primarily whether the defendant has actually committed any offence, before then considering the potential defences that may be raised. The same applies to the study of criminal law and a simple exercise will always keep this process in mind: before there can be a defence, there has to be an offence.
Defences operate with different requirements, outcomes and burdens. With some defences, the defendant remains liable for a less serious offence, whereas, with other defences, the defendant escapes liability completely. Further, some defences impose the legal burden of proof on the defendant, whereas others merely impose an evidential burden of proof (see above at 1.7.2.3).
Table 1.12 demonstrates these distinctions with examples, and we shall consider these in greater depth in Chapter 7 when we consider defences.
Table 1.12Distinguishing defences
| Type of defence | Outcome | Example |
| ‘Complete’ | Defendant is rendered ‘not guilty’ | Self-defence |
| ‘Partial’ | Defendant’s offence may be ‘reduced’ to a less severe offence | Intoxication |
| ‘Special’ | Reduces a potential murder conviction to a conviction of voluntary manslaughter | Diminished responsibility |
A point of interest that we shall return to in Chapter 7 is whether defences form part of the definition of a crime (ie the constituent elements) or whether they are outside the definition, operating independently. Williams (Criminal Law: The General Part (Steven & Son, 1961)) takes the former view and argues that defences are not a separate element of liability as they simply form part of the actus reus. Kadish (‘The Decline of Innocence’ (1968) 26 Camb Law Journal 273), on the other hand, argues that there must be an absence of a defence (as a distinct element) given that the mens rea requires an element of blameworthiness. The latter view is also adopted by Lanham (‘Larsonneur Revisited’ [1976] Crim LR 276).
In respect of this argument, one would have to distinguish between those defences which are justificatory in nature, those defences which provide the defendant with an excuse for his crime, and those which negate an element of the offence. For example, intoxication is not a defence per se but rather is a denial of the mens rea of an offence (R v Heard [2008] QB 43). This is because intoxication acts to demonstrate that the defendant could not have formed the necessary mens rea for the offence, eg intention, because he was intoxicated. As a result, the ‘defence’ of intoxication is better understood as an element of an offence (in that it extinguishes mens rea), rather than as a distinct defence to a crime. This can be compared to self-defence (also known as private defence) which, if successful, amounts to a justification for the defendant’s actions. This is because the defendant, through self-defence, is not claiming that he lacked the necessary mental element. Rather, he is seeking to ‘justify’ why he acted in such a manner. In this respect, we can say that self-defence, unlike intoxication, is a true defence. It is therefore a separate and distinct element which removes the already established liability from the defendant. At the same time, however, one could argue that the effect of self-defence is to make the defendant’s conduct ‘lawful’. The offence of battery, for example, requires the ‘unlawful application of physical force’. If the defendant’s conduct of acting in self-defence makes his conduct lawful, that would mean that self-defence was an element of the offence, and not a defence. Further discussion of this argument is made in Chapter 8.
To help with this distinction, let us look at three examples involving Jack and Jill with slightly different facts:
(1) Jill stabs Jack in the chest, and Jack dies as a result. Jill possesses the actus reus of murder and intended to kill Jack. Jill is liable for murder.
(2) Jill stabs Jack in the chest, and Jack dies as a result. Jill was intoxicated and claims that she had no idea what she was doing. Jill possesses the actus reus of murder but, as a result of her intoxication, may not have had the intention to kill or harm Jack. Jill may not liable for murder.
(3) Jill stabs Jack in the chest, and Jack dies as a result. Jill acted in defence of herself when Jack came home intoxicated and began to attack her. Jill feared for her life and stabbed Jack. Jill possesses the actus reus of murder, and the mens rea, given her intention to cause GBH to Jack (to stop him). Jill is liable for murder unless she was acting in defence of herself and her conduct is considered reasonable and necessary in the circumstances. Jill may therefore not be liable for murder.
It is these three components (actus reus, mens rea and defences) that shall form the bulk of our discussion in Part I of this text. In Part II, we shall consider how these principles apply to specific offences against the person, and in Part III how they apply to specific offences against property.
in practice
The prosecution must prove all elements of an offence in order for a defendant to be liable. By ‘prove’, we simply mean that the prosecution must convince the magistrate or jury that each element of the offence has been made out from the evidence to the appropriate standard (ie beyond reasonable doubt). Take the offence of assault occasioning actual bodily harm. Whilst the prosecution may succeed in proving that the defendant committed an assault, if it fails to prove that the victim actually suffered harm (eg the prosecution fails to ask the victim whether they suffered injury/harm), then the offence has not been proven. It