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    Friday, 20 October 2017

    Actus Reus and Mens Rea

    1. INTRODUCTION
    It is a general principle in criminal law that for a person's liability to be established it must be shown that the defendant possessed the necessary Mens Rea at the time-the Actus Reus was committed. The Actus Reus is the amounts to be a crime only when it is accompanied by the appropriate Mens Rea. To cause an Actus Reus without the requisite Mens Rea is not a crime but may be an innocent Act.

    2. GENERAL PRINCIPLE
    The general principle in criminal law Actus Reus and Mens Rea is Latin maxim, which is "Actus Non Facit Reum Nisi Mens Sit Rea."

    It means that, "Any act does not make a man guilty unless his mind be also guilty."

    This principle is based on the fact-that alone Actus Reus or Mens Rea cannot create liability; so there must be coincidence of both at the time of occurrence of crime.

    Example 
    A since two months is carrying Mens Rea for killing B. One day A was driving car fast. The car of A hits a person. But A . does not know at that time it was B because his back was towards A. Here there is Actus Reus but not Mens Rea. Though A has been carrying Mens Rea for B since two months but when A cal. hits B i.e. at the time of occurrence there was no Mens Rea but only Actus Reus, so A will not be liable for murder but will be liable for killing recklessness.

    3. ACTUS REUS

    The Actus Reus of an offence includes all elements of crime except the mental element. It can be an act a circumstance, an omission, a state of affairs or an occurrence. Actus Reus is a Latin phrase that literally means "the guilty act". But generally means "the forbidden conduct." It also has a well known definition "Such results of human conduct as the law seeks to prevent." e.g. the Actus Reus of murder and manslaughter is unlawful killing of any person.

    4. MEANING OF ACTUS REUS

    (i) Literal Meaning
    Actus Reus means "Such result of human conduct as the law seeks to prevent."

    (i) Legal Meaning
    Actus Reus means "An act done in furtherance of intention or due culpable to prevent"

    5. ANATOMY OF ACTUS REUS

    (I) CONDUCT

    (i) Act
    The core element of any Actus Reus is defendant's conduct, such conduct usually consists of some act or act on the part of D which any necessary consequences / result in any necessary circumstances.

    (a) It must be Voluntary Act
    Muscular movement of defendant must be willed by his conscious mind. If they are not willed by the defendant's conscious mind then they would be regarded as involuntary act, until and unless sit is proved, that the behavior of the criminal was to inflict harm, it will not constitute liability.

    (b) Atitonsatism
    A person is automation when has no control over his muscular movements."
    Most of the cases falling under involuntary act concern automatism. Automatism is divided into different kinds/types such as:
    (i) Automatism due to insanity
    (ii) Automatism due to other reasons, and
    (iii) Self induced automatism.

    The plea of insanity is avoided by defendants as it usually results in going to a mental institution at pleasure of authorize.

    (ii) Omission
    It is possible to be criminally liable for a failure to act but it is still for less common than liability for a positive act. In this situation a person will be liable where a specific statutory provision imposes a duty to act.
    Example: A willful neglect of child or failing to report a motor accident.

    (a) Specific Statutory Provisions
    A person will be only liable where a specific statutory provision imposes a duty to act. There are some special, situations where courts deem the defendant to act in a particular way. An in such occasion defendant's omission may be punished under a statute that speaks in terms of positive acts.

    (b) Contract
    Similarly, a legal duty may arise out of a contract.

    Example
    A life guard is hired by city to guard a beach. Internationally life guard fails to save the victim from drawing, life guard will probably by criminlally liable despite the fact that this conduct was an omission rather than an act, his contract with city council imposed a duty to take action.

    c. Relationship
    In close blood relationship, the defendant will be criminally liable for a failure to act.

    d. Where Defendant (D) creates a Dangerous Situation
    If the defendant (D) creates a danger himself then generally he has a duty to save the life of other person.

    Example
    D digs a hole in the road in front of his house with boundary of the house, acting legally under building permit. If D sees that person A is about to step in unforeseen hole and he steps in and dies. Then D will be held criminally liable, because he created the situation.

    (iii) Possession
    Law recognizes various degrees of this Act. Actually possession means physically on your person. Constructive possession means physically under you control knowing possession means you know what you are possessing. Unwilling possession is where something has been planted on your. The only punishable types of possession are the ones that are conscious and knowable e.g possession of narcotics.

    (II) CIRCUMSTANCES
    Whether the crime is a result crime or a conduct crime, it would almost certainly require the presence of some defined surrounding circumstances. These circumstances may constitute a w "state of affairs" that makes the act of accused unlawful when we talk about circumstances in relation to Actus Reus it means only those which are legally relevant i.e. those which are laid down in the offence's definition. It is clear that no crime can be committed unless all the elements of Actus Reus are present including any prescribed circumstances.

    (i) Before Occurrence:
    Section 378 of the Pakistan Penal Code, 1860 (PPC 1860):
    Theft: "Whoever, intending to take dishonesty any movable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft and will be punished for a period of 3 years. Here the Actus Reus of theft is appropriate property" belonging to another, which to be deprived dishonestly. The conduct which is the central feature of the crime is "appropriate property" and an essential circumstance before the occurrence, which must be present in that the "property belongs to another".

    (ii) After occurrence
    The circumstances after the occurrence in the above stated illustration is that nothing needs to result from defendant's act of taking the property and therefore theft is conduct crime.

    (iii) Consequences/Result
    Some are well known crimes require that defendant causes a particular prohibited consequences/result. Crimes which do require the production of prescribed consequences are known "result crimes".. In this consequences/results are always relevant, as we connect consequences and conduct.

    Example:
    Section 302 of PPC 1860 if 'A' shoots 'B' and 'B' dies, we can say the consequences/results is connected with conduct and result crime. While in conduct crimes once a person does a prohibited act it ends after one commits it. In this consequences are not always relevant.

    6. MENS REA

    Although Mens Rea is generally "thought" as meaning "guilty mind or criminal intention" and actually it means whatever state of mind D(defendant) must be proved to have according to the definition of the crime charged. It is the mental state required for a crime. It is as crucial as that of Act Reus. It symbolizes the requirement that there be a "culpable state of mind." But other crimes required merely as "negligence" & 'recklessness' which is not really a state of mind at all.

    7. FORMS OF MENS REA

    The Men's Rea may assume one or other of two distinct forms namely.
    (i) Wrongful intention.
    (ii) Culpable negligence.
    The offender may either have done the wrongful action purpose or he may do it carelessly and in each case the mental attitude of the doer is such as to make punishment effective.

    (I) INTENTION / KNOWLEDGE
    Intention is an essential ingredient on a charge of attempting to commit an offence. it is the highest point faint for blame worthiness. Knowledge is near to it. It includes the maximum voluentiariness in it and so it takes to the conclusion of Act. That is why severe punishments are attached with the crimes does with intention. This so because accuse is well aware fo his conduct and in many cases can reasonably foresee its consequences, knowledge determines the reasonably foresee its consequences, knolwedge dtermines the certainty of result.

    (i) General Intent
    A crime requiring merely "general intent" is a crime for which it must be shown that defendatn (D) desired to consist the act which served as teh Actus Reus.

    (ii) Specific Intent
    Where a crime requires specific intent means that D in addition to bring about the Actus Reus must have desired to do somethign further.

    (II) RECKLESSNESS
    Recklessness means unjustifiable risk taking i.e actions involved a risk of the prohibited conduct or consequence / result occurrence and it is unreasonable in the circumstances to take that risk. It involves a substantial risk, a risk of which D is consciously aware and he ignores it. The risk must be one which in all circumstances is unreasonable to take.

    (i) Subjective Recklessness
    Key element in subjective recklessness is that D must know that he is taking a risk of the forbidden consequence/result occurring. He recognizes that there is a risk and he is aware of its happing. It means that he foresees the possibility of its occurring and still he ignores it and takes unjustifiable risk.

    (ii) Objective Recklessness
    In objective recklessness, the defendant is blamed for failing to think and act in accordance with ordinary standards of conduct laid down by the courts.

    (III) NEGLIGENCE
    Negligence means the failure to take due care which a person in expected to take in the circumstances of a particular situation. If the defendant was aware if the risk and decided to take it, he was reckless; if he was unaware of the risk but ought to have been aware of it, he was negligent. Under the common law, the reckless man was liable, the negligent was not. There are two types/kinds of negligence:

    (i) Gross Negligence
    If the defendant falls seriously short of the standard i.e. expected of the ordinary prudent person, it is Gross Negligence or Extreme Carelessness.

    (ii) Ordinary Negligence
    On the other hand, ordinary negligence is not a serious one and it is Average Carelessness.

    (IV) STRICT LIABILITY
    Strict liability is the case where no Mens Rea is required. Defendant is held liable for the criminal offence at the same time when he does that illegal act. These are not very grave offences and not have a long or grave punishment.

    8. COINCIDENCE OF ACTUS REUS AND MENS REA / IMPOSED OF CRIMINAL LIABILITY

    Generally, in order to impose criminal liability upon a person the following expression must be proved;
    Actus Reus + Mens Rea = Criminal Liability
    It means that criminal liability can be imposed only when there is coincidence of Actus Reus and Mens Rea, no liability can be imposed if any of them is not present at the time of occurrence. They must coincide it the time of occurrence.

    This principle is based on the following Latin maxim;
    Actus non Tacit reum nisi mens sit rea
    It means that an act does not make a man guilty of a crime unless his mind is also guilty.

    9. EXCEPTIONS TO GENERAL RULE
    Generally it is true that criminal liability can be imposed only where Actus Reus coincide the Mens Rea. But in some cases  one can be held liable in the presence of either of the elements.

    (i) Without Actus Reus
    In case of conspiracy against state, there is no Actus Reus but only Mens Rea, nevertheless the defendant would be held liable for criminal act. There is no need to prove Actus Reus in this case.

    (ii) Without Mens Rea
    In case of strict liability, where there is not Mens Rea but only Actus Reus nevertheless criminal liability would be imposed on the defendant. e.g. violation of traffic rules etc.

    10. CONCLUSION
    There are two basic essentials / elements of crime viz. Actus Reus and Mens Rea. The prosecution is generally required to prove Actus Reus and Mens Rea and existing of the two at the same time; when these conditions are fulfilled, only then the criminal liability can be imposed.
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