Professional Documents
Culture Documents
SUBMITTED BY:
NAKUL KUMAR BAJPAI
2013/B.A. LL.B./028
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TABLE OF CONTENTS
1.
2.
3.
4.
5.
6.
7.
CONCLUSION ................................................................................................................... 23
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SUBJECTIVE AND OBJECTIVE ELEMENTS OF CRIME
TABLE OF AUTHORITIES
CASES
KING EMPEROR V SREE NARAYAN & ORS, AIR 1949 ORI 48 -------------------------------- 14
R V BRADY [2006] ALL ER (D) 239. -------------------------------------------------------------------- 9
R V CUNNINGHAM, [1957] 2 QB 396. ----------------------------------------------------------------- 19
R V G AND ANOTHER, [2003] UKHL 50.------------------------------------------------------------- 19
R V GIBBINS AND PROCTOR (1918) 13 CAR 134. ------------------------------------------------- 15
R V INSTAN (1893) 1 QB 450. --------------------------------------------------------------------------- 16
R V LARSONNEUR [1933], 24 CR APP REP 74. ------------------------------------------------------ 9
R V LE BRUN [1991] 4 ALL ER 673 -------------------------------------------------------------------- 13
R V PITTWOOD(1902) 19 TLR 37. ---------------------------------------------------------------------- 15
R V WOOLLIN AC 82 HOUSE OF LORDS. ----------------------------------------------------------- 17
SECRETARY OF STATE FOR TRADE V MARKUS [1976] AC 35. ----------------------------- 10
STEANE 1947 KB 997. ------------------------------------------------------------------------------------- 18
THABO MELI V R [1954] 1 ALL ER 373, PRIVY COUNCIL ------------------------------------- 13
TREACY V DPP [1971] AC 537 AT 560. --------------------------------------------------------------- 10
WOOLMINGTON V DPP [1935] AC 462 HL(E). ------------------------------------------------------ 8
STATUTES
28, TOWN POLICE CLAUSES ACT 1847. ---------------------------------------------------------- 10
ILLUSTRATION (B), 299, INDIAN PENAL CODE, 1860. ---------------------------------------- 12
OTHER AUTHORITIES
BLACK'S LAW DICTIONARY, 5TH ED. ----------------------------------------------------------------------- 13
CORPUS AT 16. ------------------------------------------------------------------------------------------------- 6
GORDON, 61. -------------------------------------------------------------------------------------------------- 10
HALBSBURYS LAWS OF ENGLAND, 3RD ED, P. 271. ------------------------------------------------------ 7
HARDEN [1963] 1 QB 8. ------------------------------------------------------------------------------------- 11
KENNY, OUTLINES, 17. --------------------------------------------------------------------------------------- 10
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1. RESEARCH HYPOTHESIS
Every criminal act requires four elements i.e. human being, actus reus, mens rea and injury. Actus
reus is Latin for wrongful act and Mens rea means guilty mind. For any crime to be complete these
two are the requisites. Sine qua non the two, the person could not be convicted. For conferring
punishment it must be proved beyond reasonable doubt.
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3. DEFINITIONS OF CRIME
Though it is different to give a precise definition of crime, many scholars have, from time to time,
while focusing on one or the other dimension of a prohibited act, defined the term crime.
William Blackstone, in his book, Commentaries on the Laws of England, has defined Crime as,
an act committed or omitted in violation of public law forbidding or commanding it.3 However,
the term public law has different accepted connotations. Austin perceived it to be identical with
constitutional law, while some other jurists equate it with positive law or municipal law. Each of
these interpretations has their own merits and demerits. Perhaps, visualizing these inadequacies,
Blackstone gave another definition, a violation of the public rights and duties due to the whole
community considered as a community.4 Sergeant Stephen, modified this definition to read, A
crime is a violation of a right, considered in reference to the evil tendency of such violation as
regards the community at large. Again, this definition is inadequate as the essential characteristic
of a crime is not the violation of a right, but the doing of prohibited acts (e.g. possession of
counterfeit coins).
Both Blackstone and Stephens have stressed on the harm or injury committed to the community at
large. Though this may be true for many crimes, not all crimes affect community at large. Also,
there may be acts that are illegal and cause harm to a large section of community, but still are not
considered crimes. E.g., the negligent management of a companys affairs.5
John Gillin, has also defined crimes in terms of harm done to others. Crimes, he says, is an act
that has been shown to be actually harmful to society, or that is believed to be socially harmful by
a group of people that has the power to enforce its beliefs, and that places such act under the ban
of positive penalties.6
Sir William Blackstone, Commentaries on the Laws of England, vol. 4, 17th ed, 1830, p. 5.
Ibid.
5
Corpus at 16.
6
John Gillin, Criminology and Penology, 3rd edn, New York, p. 9.
4
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VOLUNTARY CONDUCT
If the accused is to be held liable of a crime, his or her behavior must be voluntary in committing
the actus reus. Where the accused was not in control of his or her own body (when the defense of
insanity or automatism may be available) or where there is extremely strong pressure from
someone else, such as a threat that the accused will be killed if he or she does not commit a
particular offence (when the defense of duress may be available). In such cases the behavior is said
to be involuntary.
Some accidents may be viewed by the court as amounting to involuntary conduct that does not
give rise to criminal liability. However, in R v Brady16 the Court of Appeal considered the case
where a young man had drunk heavily and taken drugs and then sat on a low railing on a balcony
that overlooked a dance floor. He lost his balance and fell, breaking the neck of a dancer below
who was subsequently wheelchair-bound. While the fall was a tragic accident the Court of Appeal
pointed to his earlier voluntary conduct of becoming heavily intoxicated and sitting precariously
on the railing and considered that this voluntary conduct was sufficient to be treated as having
caused the injuries.17
In a much criticized decision of R v Larsonneur,18 a Frenchwoman was arrested as an illegal
immigrant by the authorities in Ireland and brought back to the UK in custody, where she was
charged with being an alien illegally in the UK and convicted. This is not what most of us would
describe as acting voluntarily, but it apparently fitted the courts definition at the time. It is
probably stricter than a decision would be today, but it is important to realize that the courts do
define involuntary quite narrowly at times.19
16
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20
Gordon, 61.
Kenny, Outlines, 17.
22
Lord Diplock in Treacy v DPP [1971] AC 537 at 560.
23
28, Town Police Clauses Act 1847.
24
Secretary of State for Trade v Markus [1976] AC 35.
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25
Supra at 15.
Harden [1963] 1 QB 8.
27
Ibid.
28
Smith (Wallace Duncan) (No. 4) [2004] QB 1418).
29
Supra at 7.
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Ibid.
Black's Law Dictionary, 5th ed.
36
Jeremy Horder & Andrew Ashworth, Principles of Criminal Law 103 (7th ed. 2013).
37
R v Le Brun [1991] 4 All ER 673; See also, Thabo Meli v R [1954] 1 All ER 373, Privy Council.
35
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As a general rule of law, there is no obligation on the part of any person to act to prevent
the. Citizens are generally not required to be their brothers keeper. For example: If a pedestrian
consequently dies, and a bystander could have prevented this by reaching out and pulling the
pedestrian from the road but chooses not to, notwithstanding how inhumane, or morally
reprehensible this may be considered, no criminal proceedings can generally ensue from the
bystanders omission to act. However an omission may give rise to criminal responsibility in
certain circumstances; these circumstances largely being:(i) Where statute either expressly or
38
King Emperor v Sree Narayan & Ors, AIR 1949 Ori 48.
Supra at 20.
40
Peter Seago, Criminal Law, 3rd ed.
39
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MENS REA
Mens rea is the Latin for guilty mind and traditionally refers to the state of mind of the person
committing the crime. The required mens rea varies depending on the offence, but there are two
main states of mind which separately or together can constitute the necessary mens rea of a
criminal offence: intention and recklessness. When discussing mens rea, we often refer to the
difference between subjective and objective tests. Put simply, a subjective test involves looking at
what the actual defendant was thinking (or, in practice, what the judge or jury believe the defendant
was thinking), whereas an objective test considers what a reasonable person would have thought
in the defendants position. The courts today are showing a strong preference for subjective tests
for mens rea.
INTENTION
Intention is a subjective concept: a court is concerned purely with what the particular defendant
was intending at the time of the offence, and not what a reasonable person would have intended in
the same circumstances.
To help comprehension of the legal meaning of intention, the concept can be divided into two:
direct intention and indirect intention. Where the consequence of an intention is actually desired,
it is called direct intent where, for example, Ann shoots at Ben because Ann wants to kill Ben.
However, a jury is also entitled to find intention where a defendant did not desire a result, but it is
a virtually certain consequence of the act, and the accused realizes this and goes ahead anyway.
This is called indirect intention (or sometimes oblique intention). An example might be where Ann
throws a rock at Ben through a closed window, hoping to hit Ben on the head with it. Ann may not
actively want the window to smash, but knows that it will happen. Therefore, when Ann throws
the rock Ann intends to break the window as well as to hit Ben. It should be noted that Lord Steyn
suggested obiter, in the House of Lords judgment of R v Woollin44 (1998), that intention did not
necessarily have precisely the same meaning in every context in the criminal law. He suggested
that for some offences nothing less than purpose (direct intention) would be sufficient. He gave a
44
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RECKLESSNESS
In everyday language, recklessness means taking an unjustified risk. Its legal definition has
radically changed in recent years. It is now clear that it is a subjective form of mens rea, so the
focus is on what the defendant was thinking.
A subjective test:
Following the House of Lords judgment of R v G and another46, recklessness will always be
interpreted as requiring a subjective test. In this case, the House favoured the definition of
recklessness provided by the Law Commissions Draft Criminal Code Bill in 1989 under which a
person acts recklessly with respect to
(i) a circumstance when he is aware of a risk that it exists or will exist;
(ii) a result when he is aware of a risk that it will occur;
and it is, in the circumstances known to him, unreasonable to take the risk. Defendants must always
be aware of the risk in order to satisfy this test of recklessness. In addition, their conduct must have
been unreasonable. It would appear that any level of awareness of a risk will be sufficient, provided
the court finds the risk taking unreasonable. Until the case of R v G and another47, the leading case
on subjective recklessness was R v Cunningham48. In R v Cunningham49, the defendant broke a
gas meter to steal the money in it, and the gas seeped out into the house next door. Cunninghams
prospective other-in-law was sleeping there, and became so ill that her life was endangered.
Cunningham was charged under s.23 of the Offences against the Person Act 1861 with
maliciously administering a noxious thing so as to endanger life.
5. COINCIDENCE OF ACTUS REUS AND MENS REA
The mens rea of an offence must be present at the time the actus reus is committed. So if, for
example, Ann intends to kill Ben on Friday night, but for some reason fails to do so, then quite
accidentally runs Ben over on Saturday morning, Ann will not be liable for Bens murder.
However, there are two ways in which the courts have introduced flexibility into this area:
46
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50
51
Supra at 37.
Ibid.
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7. CONCLUSION
Thus actus reus and mens rea are the two most important element in crime and any court could
punish a person only if he is found to perform certain act with the guilty mind. If the act was
performed without guilty mind then the person would not be convicted. The coincidence of actus
reus and mens rea is necessary for conviction of an accused.
The law declares tests to be used to determine the substantive nature of crime as if any of the
elements of crime are missing or their presence and working is not proved beyond reasonable
doubt, the whole trial would fall. Similarly the law cannot be made strict as the freedom of innocent
needs to be preserved.
In common law the accused is presumed innocent until proven guilty beyond reasonable doubt.
For a person to be convicted, both the objective and the subjective test are used by the Indian
courts. Decisions are given both on direct as well as circumstantial evidence.
The elements of crime are the best way to sentence a person as it gives substantive realty of the
situation and the accused and at the same time helps law in not making mistakes or misjudging a
person by pronouncing him guilty only at the stage of preparation or incarcerating an innocent.
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