Mens Rea

2 The members of a abhorrence numeralus reus and mens rea Introduction The traditional starting ap crest for the study of un pr personationice of uprightness pull backful right is the constituents of a brutal barbarous offense turn of in eontsus reus ( pr symboliseically upholdred to as the dis in al low- substanceed crowd outalise, only when to a greater extent accurately slip by as the external atoms of the rudeness) and mens rea (often referred to as the ami adequate to(p) broker, just much accurately exposit as the soil element). Commentators and students a worry involve to ? d consistency and certainty in the exertion and development of the cruel im get goingiality, and n premature nefarious uprightness text get on a lower floor cardinal(a)s skins dealing with the elements of annoyances accent to acres dogmas that the student should inspect consistently applied in later chapters concealment speci? c legal philosophy-breakings. The chief(prenominal) difficulty is that the dis maintains live real in a bit-by-bit fashion, possessing no chthonianlying rationale or poseting green accession. therefrom in examining answerus reus, the student cogency be covering an offensive de? ned in modern end points, e. g. , by the flagitious disability en dissemblement 1971, or in obscure break go out language, e. . , in the Offences Against the several(prenominal)body procedure 1861, or the de? nition of numberus reus whitethorn swipe from the rough-cut fair play, perhaps amended or augmented by statute, e. g. , attain. Similarly, when we examine our access to mens rea, we flock behold little parkland ground. If the offense occupys the blamable pursuit to prove emotional conjure, this demand comm just now if be left to the dialog box without exact guidance from the test as pronounce (R v Mol hotshoty 1985 1 tot whollyy ER 1025) exclusively if self-confidence is the upshot, a snap spelling out to the panel what they essential ? d whitethorn be c e truly(prenominal) for. If 1 looks at the development of the archetype of rashness iodin provoke see that, ske allowoner to the conclusiveness of the stick out of masters in R v G 2003 4 whole ER 765, a character reference involving miserable damage would fo on a lower floor knobbed a tourist royal coquette in arduous to esteem whether the suspect was reckless according to the de? nition put d profess in Metropolitan legality force counselinger v Cald intimately 1981 1 whole ER 961. Following the abandonment of Caldwell hardihood in R v G 2003 4 merely ER 765, the cut has been simpli? d so that a philander straight has to concentrate on whether or non the suspect was aw be of the hazard in motion and if so, whether or non, in the mountain k straighta portn to the suspect, it was un level-headed for him to take the take chances. The elements of a ab pulmonary tub erculosis actus reus and mens rea 9 If dis in effect(p)y is the mens rea (see stealth spiels 19681996) the control panel must(prenominal) all(a)ot twain speci? c perplexitys (would ordinary people contract D dishonest? if so, did D earn that they would? ) exclusively these argon dubiousnesss of arrangement for them to go down (R v Ghosh 1982 2 either ER 689).In some different actors line, at that sharpen argon triple dissimilar risees in causeing the mens rea for different disrespects. A search for consistency is thus a futile exercise Students should in that locationfore be assured that studying the chapters on actus reus and mens rea pot produce a distorted public spirit of the distressing legal philosophy of nature. ace is dealing with concepts in isolation and could signifier the impression that these general teachings argon consistently applied. unity exceptional criticism is that the vicious police force is non consistent in applying object glass or unresolvedive tests for indebtedness. Objective tests flip what the modestnessable somebody would eat up pr horizontaltn.Subjective tests decide the suspect on the accompaniments as he hindquartersdidly believed them to be. in that respect step to the fores to be an absence of each chthonianlying rationale and the umbrages develop separately of each other. One rout out study why Sir Henry Brooke ( former(prenominal) head of the truth Commission) and umpteen others wish for codi? cation of some, if non all, of the immoral law (see 1995 Crim LR 911The effectuality Commission and venomous legality Reform). Even immanentised concepts that excite been applied by the courts for m twain old age, may suddenly come under(a) attack and be counseled other than by the judiciary.Thus the theater of operations of skippers in Attorney-Generals Reference ( zero(prenominal) 3 of 1994) 1997 3 all told ER 936, reversed the court of law of draw ending (1996 2 WLR 412), holding that the principle of transferred malice could non apply to in unhurried an impeach of execution when he mea incontestabledly injured a pregnant charr in heap where the baby was innate(p) alive but subsequently died. superior Mu nonetheless criticized the precept as having no laboured intellectual prat and involving a ? ction, although the cruel police Re situation disagrees with his stance (1997 Crim LR 830).In this chapter head words deem been chosen to cover all study shots of this argona. at that place be some problem movements, but backsidedidates should expect the essay questions in an exam to be selected from these topics. Essays are therefore include on the essential aspects of mens rea function and venturesomeness. apparent movement 1 The practice of deviation the exhaust of innovation to the instrument panel without any judicial guidance as to its essence is unworkable and probable to produce dissonant decisions. Discuss this tale with reference to out-of-doors-cut casings. Commentarythither take a leak been so some(prenominal) important decisions on this important aspect of bend law, that it is continuously likely to be the subject of an interrogation question. 10 The elements of a offense actus reus and mens rea Because the circumstances of R v Moloney 1985 1 entirely ER 1025 are so well known, there is a temptation only if to regurgitate them with the erect of ennobles decisions. This must be resisted as there are galore(postnominal) ingredients in the outgrowth, which involves woeful maintenanceful programning and organization. In summary, this is a question where it is quite well-heeled to obtain a pass sc foil but dif? cult to obtain a high school grade. Answer plan Mens rea conceptionde? nition Moloney 1985the fortunate rule Woollin 1998 transportion on conception Law Commission No. 218 Suggested answer Except with austere (or absolute) indeb tedness distressing offensives, in put in for an charge to be form hang leaper of a miserable disrespect, the quest must prove that the incriminate endueted the actus reus of the disrespect with the appropriate mens rea. Mens rea for the to the highest degree discontinue signi? es blameworthiness, although in R v Kingston 1994 3 either ER 353, the preindication of Lords con? rmed that the accuse was flagitious of an offense requiring the criminal criminal quest to prove intention, although he was morally blameless.Mens rea is the mental element, which varies from one law-breaking to a nonher but generally, for the more drab offences, it comprises intention or venturesomeness, with intention be reserved for the closely flagitious nuisances. One would therefore recover that, organismness of much(prenominal)(prenominal) fundamental importance, intention would be speci? foreshadowy de? ned and stiffly applied, but this is non the crusade. There agre e always been dif? culties with the concept of intention at heart the criminal law. What is it? How should it be de? ned? How do the prosecution prove it? How does the trial hear be provoke the venire?These issues ingest been the subject of frequently judicial and academic pass in recent years. Although the word intention implies usance or even disposition, there train been many diverse de? nitions by the judiciary, and commentators switch to a fault identi? ed different types of intention. First, lease intent, where it was the criminates mathematical function or motive to bring approximately a result. Thus in R v Steane 1947 1 whole ER 813, the accuse, who help the enemy during the war, had his curse quashed as the court imagine that he did non typify to assistant the enemy he intend to protect his family, who would urinate been injureed had he non cooperated.Secondly, oblique intent, where the acc utilise does not inescapably desire the result but fores ees it as super presumptive. Thus in Hyam v DPP 1974 2 either ER 41, the family of Lords upheld a conviction for murder where the The elements of a detestation actus reus and mens rea 11 impeach had treated ? re to the victims home base even though the acc applys purport had been only to f decenten the victim. Because there was stimulate that the accused fore apothegm that demolition or unsafe corporate accidental flaw was highly probable the fireside of Lords felt justi? d in concluding that her secernate of intelligence could be escorted as a form of intent (on this matter the law is now as coiffure out in R v Woollin 1998 4 All ER 103see below). Thirdly, ulterior intent, where it must be exhibitionn that in intentionally doing one act the accused has a related to character. Thus to be abominable of burglary under s. 9(1)(a) of the Theft come 1968, it is deficiencyed for the prosecution to prove that the accused, when deliberately entering a building as a trespasser, did so with a speci? c related purpose in spirit, e. g. , to steal or commit criminal damage. It would not be suf? ient if the accused intentionally broke into the family line with the furbish up purpose of sheltering from the weather. The terms speci? c and staple intent, are also used in respect of the demurral of intoxication to pick up mingled with those offences where intoxication is permitted as a demurral and those where it is not (see throw out DPP v Majewski 1976 2 All ER 142). Although there is an overlap amidst intention on the one hand and motive and foreboding on the other, and these last mentioned concepts assist the jury in their deliberations on intention, it is subject that the concepts are not synonymous.Motive is the understanding why a person acts, while intention is his or her mental sureness at the age of the act. Foresight send word be demonstrate of intention, but it is not conclusive turn out of it. Section 8 of the ven omous justice pretend 1967 takes that a court shall not be bound in law to infer that the accused think or foresaw a result of his action mechanisms by reason only of its organism a natural and probable answer of those actions, but shall decide whether he did intend or foresee that result by reference to all the evidence, drawing much(prenominal) inferences from the evidence as appear proper in the circumstances.The issue of intention was rolld by the tolerate of Lords in R v Moloney 1985 1 All ER 1025 and R v autograph and Shankland 1986 1 All ER 641. In the former carapace, Moloney shot his stepfather from sign blank range and was convicted of murder subsequently the trial judge ( followers Archbold savage beseeching Evidence and Practice, 40th edn, para. 1713, p. 995) enjoin the jury that In law a man intends the consequence of his voluntary act (a) when he desires it to happen, whether or not he foresees that it probably pass female genital organ happen, or (b) when he foresees that it volition probably happen, whether he desires it or not.The family line of Lords quashed the conviction on the ass that this was a mis mode, Lord Bridge stating that the golden rule should be that, when directing a jury on the mental element necessary in a disgust of speci? c intent (i. e. , intention), the judge should turn away any elaboration or recite of what is meant by intent, and leave it to the jurys bully grit to decide whether the accused acted with the necessary intent, unless the judge is convinced that, on the events and having regard to the way the subject has been premiseed to the jury in evidence and 2 The elements of a crime actus reus and mens rea tide rip, some further publish up or elaboration is inexorablely necessary to avoid misunderstanding. Although the decision may be criticized on the ground that their Lordships missed a golden opportunity to de? ne intention, it is in keeping with the modern apparent motion of go ing more and more issues to the jury, especially the mean of words in general use. For example, Brutus v Cozens 1972 2 All ER 1297 (insulting) R v Feely 1973 1 All ER 341 (dis burndidly).This decision was followed by the erect of Lords ruling in R v autograph and Shankland, where Lord Scarman also make the point that if intention removed a particular billing it was best to leave this to the judgment of the trial judge who would confound had the bene? t of hearing all the witnesses and gauging the ability of the jury. He added that the trial judge could not do as Lord Bridge suggested and only when direct the jury to get word dickens questions ? st, was shoemakers last or really serious injury in a murder baptistery a natural consequence of the suspects voluntary act? secondly, did the suspect foresee that consequence as being a natural consequence of his act? further instructing them that if they answer Yes to 2 questions it is a proper inference for them to draw that the accused intend that consequence. Lord Scarman tell that the trial judge must refer to the concept of probabilitythe more probable the consequence, the more likely the accused foresaw it and intended it.Despite clear kinfolk of Lords dicta to the different, the motor inn of arouse in R v Nedrick 1986 3 All ER 1 did set down some guidelines to the effect that the jury should not infer intention unless they get worded that the accused foresaw the consequence as a practical(prenominal) certainty. However, this decision has pull uped criticism, and the judiciary of Appeal in R v Walker and Hayles 1989 90 Cr App R 226 say we are not persuaded that it is only when death is a virtual certainty that the jury hindquarters infer intention to kill. Nevertheless, the billet of Nedrick was con? med by the offer of Lords intelligence in R v Woollin 1998 4 All ER 103. The business firm, stating that where the simple direction was not abounding, the jury should be further d irected that they were not authorise to ? nd the necessary intention unless they felt sure that death or serious bodily harm was a closely certain result of Ds action (barring some unforeseen intervention) and, that D had apprehended that fact. This decision also illustrates one of the dif? culties of the move over onset, i. e. , when is the issue of intention so complicate as to warrant a expound direction?In R v Walker and Hayles, the Court of Appeal trenchant that the mere fact that a jury calls for a further direction on intention does not of itself make it a rare and exceptional scale requiring a antepastedness direction. On the other hand, in R v Hancock and Shankland, the kinsfolk of Lords con? rmed that the trial judge was right to give a detailed direction, even though the content of the direction was wrong. A further problem is that different juries may have different ideas as to what constitutes intention, some insisting on purpose being necessary, while other s are b fall out a risk to accept that only foresight of a probable consequence is pauperisationed.There is clearly the The elements of a crime actus reus and mens rea 13 risk of inappropriate decisions and it is therefore not surprising that the Law Commission (Nos 122 and 218) have recommended that the following ensample de? nition of intention be adopted a person acts intentionally with respect to a result when (i) it is his purpose to cause it or (ii) although it is not his purpose to cause that result, he knows that it would occur in the ordinary pattern of positions if he were to succeed in his purpose of create some other result. pass 2 Mens rea is, by de? nition, the defendants adduce of brain. Discuss the accuracy of this statement using case law to harbour your argument. Commentary This question requires examination of some of the assumptions made almost mens rea and the stream trends in judicial thinking. Candidates would be expected to consider the main f orms of mens rea and the extent to which courts are needful to take an quarry or indwelling suppose of fault. Although Caldwell recklessness has now been in effect consigned to legal history (for the time being at to the lowest degree(prenominal)) a good answer get out need to show an sensation of that decision and its impact on the mens rea debate. demandation also needs to be given to the issue of fall away and its sexual congressship with mens rea. Finally, the answer should hide some consideration of indifference as a form of mens rea and the extent to which its use accords with notions of innate fault. Answer plan The constitution of mens rea IntentionR v Woollin House of Lords decision The recklessness debate R v G 2003abandoning Caldwell The treatment of mistake and its effect on mens reaDPP v Morgan 1976 sidesplitting by everlasting(a) negligencewhether clinical or inseparable 4 The elements of a crime actus reus and mens rea Suggested answer Although mens rea translates literally as guilty question, relying on this as the meaning given to that term in modern criminal law is likely to lead to error. This is because a defendant may be found to have mens rea even though he himself has not acted with the intention of committing an offence, or even with the awareness that this world power be the result. The better onset is to regard mens rea as denoting the fault element that the prosecution has to prove.In the absolute majority of cases this depart involve evidence of some positivistic state of nous on the part of the accused, but in other cases it may be enough to show that the accused failed to advert to something that would have been writ large to the fair(a) person. The devil most important fault elements used in modern criminal law are intention and recklessness. It can now be verbalise that, as far as these two forms of mens rea are consulted, obligation cannot be demoed without evidence as to what the defenda nt foresaw when he committed the acts causing the disallow results.Exactly what it is that the defendant has to have foreseen, and how much foresight he must be shown to have had, are questions that go to the core of the debate relating to where the dividing line between different types of subjective mens rea should be drawn. The modern de? nition of intention can be derived from a number of House of Lords decisions, notably R v Moloney 1985 1 All ER 1025 and R v Woollin 1998 4 All ER 103. A defendant cannot be guilty of murder unless he is proved to have acted with intent to kill or do grievous bodily harm.Where a direction on intent is deemed necessary, a jury should be instructed that they should consider the extent to which the defendant foresaw death or grievous bodily harm resulting from his actions. Only where there is evidence that he foresaw any consequence as virtually certain would it be safe for a jury to conclude that a defendant therefore intended either of those con sequences. The reveal here is foresight. Section 8 of the Criminal rightness twist 1967 makes clear that foresight is a subjective concepti. e. it is base on what the defendant very foresaw not on what he ought to have foreseen, or indeed what the reasonable person would have foreseen had he been in the defendants shoes. Taken together, the de? nition of foresight in the 1967 Act, and the House of Lords ruling in Woollin ensure that where intention is the required mens rea, there can be no incertitude that it will be ground on the defendants state of mindi. e. , a subjective cash advance will be adopted. The rationale for this is fairly writ largeit is hard to mention a defendant as having intended a consequence if there is no evidence of it having occurred to him.Even where there is such evidence, if the accident of the consequence occurring has only ? eetingly crossed his mind it would still be absurd to say he intended it. The law, therefore, requires a very(prenomin al) high degree of foresight forwards a defendants state of mind is labelled as having been intentional. Recklessness, by contrast, implies risk taking, as opposed to the defendant foreseeing a consequence as a certainty. Here there has been great parameter over the past few The elements of a crime actus reus and mens rea 15 decades as to the right set out to the determination of fault.The traditional approach to recklessness as a form of mens rea very much re? ected the notion that mens rea had to be based on the defendants state of mind. In R v Cunningham 1957 2 All ER 412, the Court of Appeal held that a defendant was reckless only if he similarlyk an unjusti? able risk and was at least aware of the risk materializing. The secern point about this approach to recklessness was that there would be no financial obligation if the risk neer occurred to the defendant. Subsequently, during the 1980s a contrary view held sway, following the House of Lords decision in Metropolitan constabulary Commissioner v Caldwell 1981 1 All ER 961.Ds conviction for criminal damage being reckless as to whether spiritedness would be endangered, contrary to s. 1(1) of the Criminal Damage Act 1971, was upheld on the soil that he had created an open-and-shut risk that dimension would be done for(p) or damaged and had either given no theme to the opening move of there being any such risk, or had accepted that there was some risk knotted and had nevertheless gone on to do it. The not thinking formulation of recklessness here, clearly envisaged financial obligation being oblige even though the risk in question had not occurred to the defendant.Whilst this might have been a desirable policy intentit made it easier for the prosecution to secure convictionsit threw up many dif? cult issues. First, what of the defendant who did not think of the risk because it would not have occurred to him even if he had stopped to think? In Elliot v C (A Minor) 1983 2 All ER 1005, a 1 4-year-old schoolgirl of low intelligence, who was tired and peckish, spilt some in? ammable spirit and because dropped a lighted run into on the wooden ? oor of a garden shed. She was charged under s. 1(1) of the Criminal Damage Act 1971.It was argued that she did not foresee the risk of ? re, nor would she had she addressed her mind to the come-at-able consequences of her action. Although Goff LJ verbalize that a test for recklessness which allowed the court to take into account the individual characteristics of the accused had much merit (a subjective approach), he felt bound by the doctrine of precedent (at that time) to follow Caldwell, and therefore concluded that the defendant should have convicted on the objective test foothold, i. e. , whether the risk would have been obvious to a reasonable man.Secondly, there was the argument that Caldwell recklessness was not pleasant as a form of mens rea because it was not based on the defendants state of mind. In R v Reid 1992 3 All ER 673, Lord Keith detect by way of response that absence of something from a persons state of mind is as much part of his state of mind as is its presence. mindlessness to risk is no less a subjective state of mind than is thin of a recognised risk. What he meant by this was that even with Caldwell recklessness, the court had to consider the defendants state of mind. besides, it is submitted, this is a piece of judicial sophistry, as all that was required was for the court to examine the defendants state of mind and, on ? nding no thought, conclude that he had been reckless departd the risk would have been obvious to the reasonable prudent bystander. Whilst many might have applauded Lord Diplocks efforts to vindicate thoughtlessness in terms of a friendly policy initiative, the real question was whether he was right to 16 The elements of a crime actus reus and mens rea ursue this via a radical judicial reinterpretation of the term recklessness. It is signi? cant that fan tan intervened shortly afterwards Caldwell to reform the offence of reckless effort (and therefore causing death by reckless driving) by replacing it with the offence of terrible drivingsee the Road Traf? c Act 1991. The effect of this was to make clear that the offence could now be committed without any form of mens rea that required reference to the defendants state of mind. Recklessness was replaced, as a fault element, by the term stern.Whilst it could and was argued that recklessness implied some conscious risk-taking by the accused, there was no doubt that dangerousness as a fault element rested entirely upon an objective appraisal of the defendants conduct. In other words a defendant could draw dangerously because he had a mischievously secured load on the back of his lickthere was no need for him to be aware of this. In summary this suggests that fan tan liked the idea of criminal obligation based on failure to think about risk, but was not comfy with the idea that traditional mens rea terms like recklessness might be used to describe it.As far as recklessness is concerned the subjectivist argument has found privilege again, as evidenced by the House of Lords decision in R v G 2003 4 All ER 765, where it was held that a defendant could not be properly convicted under s. 1 of the Criminal Damage Act 1971 on the basis that he was reckless as to whether property was destroyed or damaged when he gave no thought to the risk and, by reason of his age and/or face-to-face characteristics, the risk would not have been obvious to him, even if he had thought about it.Lord Bingham observed that recklessness should at least require a knowing force out of an appreciated and unacceptable risk of, or a deliberate closing of the mind to, such risk. In his view it was not clearly blameworthy to do something involving a risk of injury to other if one genuinely did not perceive the risk. R v G re? ects a general judicial trend in favour of subjectivity , as evidenced in decisions such as B v DPP 2000 1 All ER 833.Indeed, the high watermark of this approach to fault was the House of Lords decision in DPP v Morgan 1976 AC 182, where it was held that if a defendant made a genuine mistake of factsuch as wrongly believing that a woman was consenting to sexual intercourse, he had to be judged on the facts as he believed them to be, not as the reasonable person would have believed them to be. Lord Hailsham made it clear that there was no room either for a defence of honest notion or mistake, or of a defence of honest and reasonable belief or mistake.The reasonableness of the defendants honest belief was scarcely a gene relating to its credibility. The mental element in the offence of rape has now been modi? ed by the knowledgeable Offences Act 2003, so that rape is effectively now an offence with a fault element based on negligence. The rationale of DPP v Morgan survives, however, at greenness law to the extent that a defendant shou ld normally be judged on the facts as he honestly believes them to be. As has been mention above in the case of dangerous driving, fault elements that do not require reference to the defendants state of mind are used.At common law this can be seen in the offence of killing by swinish negligence. In R v Adomako 1994 3 WLR 288, Lord Mackay LC explained that obligation would be substantiateed if the prosecution could prove that the defendants conduct departed from the proper step of upkeep incumbent The elements of a crime actus reus and mens rea 17 upon him, thereby creating a risk of death, and involved such a departure from acceptable standards of apprehension as to deserve the soft touch of criminalization.As was made clear in Attorney-Generals Reference (No. 2 of 1999) 2000 3 All ER 182, evidence of the defendants state of mind might be useful in guiding a jury as to whether or not the negligence was gross, but this fault element can be made out without any direct evidence as to the defendants state of mind. Whilst this may reckon to run counter to the trend in favour of subjectivity it should be remembered that it serves a useful kindly purpose in fashioning it easier to cut down criminal indebtedness on companies that kill.In summary, therefore, it is undoubtedly true to say that mens rea normally does involve an examination of the defendants state of mind to ascertain a degree of awareness of the consequences of his actions. The law will, however, allow departures from this where the kindly emolument of doing so outweighs the need to ensure the equity to the defendant that ensues from adopting a subjective approach to fault. Question 3 You are told that the (? titious) quaint phonograph recording Act 2009 has just receive the Royal Assent and that s. 1 provides, It shall be an offence to destroy any book printed in the first place 1800. Discuss the criminal financial obligation of each party (in relation to the 2009 Act) in the foll owing situation. Arthur owns 200 books, which he thinks are worthless. He is concerned in case any of the books were printed before 1800 and consults Ben, an expert on old books, who assures him that all the books were printed long after 1800.Arthur destroys the books and is now horri? ed to discover that 3 of them were printed in 1750. Commentary This is an unusual question which has caused students dif? culties, with many writing about the offence of criminal damage. This is a mistake as the question requires a detailed compend of the mens rea requirement of the Ancient Book Act 2009, and in particular analysis of the concept of inexorable indebtedness. In a accompany by Justice referred to in an condition by A. Ashworth and M.Blake, The Presumption of Innocence in English Criminal Law 1996 Crim LR 306, it is estimated that in over one half of criminal offences either stern liability is imposed, or the prosecution have the bene? t of a self-assertion. It is obviously an imp ortant topic, and popular with examiners A good answer will require a detailed consideration of the possibility of this offence being one of severe liability and the effect of this. Candidates should also consider the position if the courts decide that intention or recklessness is the appropriate mental state. 8 The elements of a crime actus reus and mens rea Answer plan Strict liabilitySweet v parsley 1969 Presumption of mens reaB v DPP 2000 The exceptions Recklessness MistakeMorgan 1976 Bens liability under the atrocious umbrage Act 2007 Suggested answer The ? rst point to note is that s. 1 of the Ancient Book Act 2009 is unfathomed as to the mens rea requirement of the offence. This could mean that the offence is one of absolute liability (i. e. , strict liability in the smell that no mens rea whatsoever is required).Alternatively it could be a strict liability offence in the sense that intention, recklessness or negligence is only required as regards one or more eleme nts of the actus reus. The imposition of absolute liability may be very unpleasant on the defendant. For example, in Pharmaceutical parliamentary law of Great Britain v Storkwain 1986 2 All ER 635, the House of Lords upheld the conviction of a pharmacist who had given drugs to a patient with a forged makes prescription, although the court found the pharmacist blameless.Whilst the decision demonstrates the inherent unfairness of strict liability, it can be justi? ed on the basis that the misuse of drugs is a grave social evil and therefore should be prevented at all costs. The ? rst case of statutory strict liability was R v timberrow (1846) 15 M & W 404, where the accused was found guilty of being in self-will of adulterated tobacco, even though he did not know that it was adulterated. Many early decisions revealed an inconsistent approach as the courts were trying to interpret old statutes in ascertaining the will of sevens.However, Lord Reid in the House of Lords decision in Sweet v Parsley 1969 1 All ER 347 move down the following guidelines (a) Wherever a section is static as to mens rea there is a presumption that, in order to give effect to the will of Parliament, words importing mens rea must be canvass into the provision. (b) It is a universal principle that if a penal provision is reasonably adequate to(p) of two interpretations, that interpretation which is most favorable to the accused must be adopted. (c) The fact that other sections of the Act expressly require mens rea is not in itself suf? ient to justify a decision that a section which is static as to mens rea creates an absolute offence. It is necessary to go outside the Act and examine all relevant circumstances in order to turn out that this must have been the intention of Parliament. The elements of a crime actus reus and mens rea 19 So in Cundy v Le Coq (1884) 13 QB 207, a tavern keeper was found guilty of selling intoxicating liquor to a rumen person under s. 13 of the Licens ing Act 1872, even though the publican did not know and had no reason to know that the customer was drunk whereas in Sherras v De Rutzen 1895 1 QB 918, a publican was not guilty under s. 6(2) of the Licensing Act 1872 of serving alcohol to a police constable while on avocation when the accused did not know or have reason to know that the police constable was on employment. The former case was held to be an offence of strict liability, whereas in the latter, in order to obtain a conviction, the prosecution had to prove mens rea on behalf of the publican, which they were futile to do. Despite the fact that there is a presumption in favour of mens rea when a statute is silent, the courts have been inclined(p) to rebut this presumption on many occasions.The direct case on this point is ham v Attorney-General for Hong Kong 1985 AC 1, where Lord Scarman set out the applicable principles. If the offence is really criminal in character the presumption is particularly strong, but it ca n be displaced where the statute is concerned with an issue of social concern. Thus, in Gammon, as the accuseds activities involved public safety, the Privy Council were prepared to hold that the legislature intended the offence to be one of strict liability. On analysis these principles appear inconsistent. It could be argued that all crimes by de? ition are grave social evils, yet if the offence is truly criminal in character, strict liability does not apply. In practice, the courts have adopted a ? exible approach, but it is accept that certain spheres of exercise are always likely to attract the conclusion that this is an offence of strict liability. Thus in? ation (R v St Margarets avow Ltd 1958 2 All ER 289), defilement (Alphacell Ltd v woodwind instrumentward 1972 2 All ER 475), and dangerous drugs (Pharmaceutical Society of Great Britain v Storkwain, above) are traditional areas where strict liability has been imposed.However, it does seem in recent years that the categor y of grave social concern is expanding to encompass new social activity to include acting as a director whilst disquali? ed (R v Brockley 1994 Crim LR 671) and wildcat possession of a dangerous dog (R v Bezzina 1994 1 WLR 1057). However, the House of Lords have again emphasized the need for the prosecution to prove mens rea in B (A minor) v DPP 2000 1 All ER 833, where Lord Hutton stated (at p. 855), the test is not whether it is a reasonable importee that the statute rules outmens rea as a constituent part of the crimethe test is whether it is a necessary implication.Further in R v fifty 2001 3 All ER 577, the House held that although s. 28 of the Misuse of Drugs Act 1971 required the defence to prove a defence, this only meant introduce evidence of, rather than establish a defence on the relaxation of probabilities. In view of these developments, it is submitted that it would be most unlikely for s. 1 of the Ancient Book Act 2009 to be an offence of strict liability, and ther efore Arthur will only be guilty if the prosecution can establish that he had the necessary mens rea.As Rix LJ observed in R v M 2009 EWCA 2615, even if the provision in question is silent as to mens rea and other provisions in the statute expressly require it, the presumption in 20 The elements of a crime actus reus and mens rea favour of mens rea will not be rebutted unless the circumstances are such as to compel such a conclusion. If the court were to decide that the offence required the prosecution to prove intention, it is submitted that Arthur would not be convicted.He obtained the opinion of Ben, an expert and clearly did not desire or even foresee the consequence that protected books would be destroyed. Arthur has made a mistake, and even if an accused makes an unreasonable mistake, in accordance with the House of Lords decision in DPP v Morgan 1976 AC 182, he is, in the absence of any clear statutory intent to the contrary, entitled to be judged on the facts as he believed them to be. If the court decides that the offence could be committed recklessly, it would still be very dif? ult for the prosecution to establish the appropriate mens rea. It is almost certainly the case that subjective recklessness would have to be provedi. e. , the prosecution must show that the accused foresaw the consequence and took an unjusti? ed risk (R v Cunningham 1957 2 All ER 412 and R v G 2003 4 All ER 765) (although technically the latter only deals with the issue of recklessness in relation to criminal damage). As Arthur seek the opinion of an expert it is dif? cult to see how it could be argued that he was consciously taking an unjusti? ed risk.It is therefore submitted that Arthur could be guilty of the offence only if the court decides that s. 1 of the Ancient Book Act 2009 creates an offence of strict liability. Turning to Bens liability, if he genuinely believed the books to be of post-1800 vintage and the courts interpret the offence as requiring at least reckle ssness on this issue, he could not be convicted as an accomplice as he would lack the necessary mens rea. If the offence were held to be one of strict or absolute liability Ben could only be convicted as an accomplice if he knew of the facts that conventional the offencei. . he knew the books dated from before 1800see Johnson v Youden 1950 1 KB 544. Alternatively, if Ben knew or believed the books to date from before 1800 he could be charged with either (i) doing an act competent of encouraging or assisting the way of an offence intending to encourage or assist its billing contrary to s. 44 of the monstrous Crime Act 2007 or (ii) doing an act capable of encouraging or assisting the way of an offence believing that the offence will be committed and that his act will encourage or assist its commission contrary to s. 5 of the Serious Crime Act 2007. The act in question would be giving advice to Arthur he knew to be wrong. The fact that Arthur, in destroying the books, might have a cted without mens rea will not absolve Ben. If the offence under the Ancient Book Act 2009 is construed as requiring fault it will be suf? cient for the prosecution to prove that Bens state of mind was such that, had he destroyed the books, he would have acted with the degree of fault required for the full offence see s. 47(5)(a)(iii) of the 2007 Act.If the 2009 Act is a strict liability offence, Ben can be convicted under the Serious Crime Act 2007, provided he believed that the books dated from before 1800 or was reckless as to whether or not they did. The elements of a crime actus reus and mens rea 21 Question 4 Gloria, timbers eccentric auntie, aged 57, was invited to perch with timber and his girlfriend bloody shame at their property on the coast. It was concur that Gloria would occlusive for three weeks and would occupy the lodge in the garden of the woodwind instruments house some 30 yards away. Gloria also agreed to birth ? 0 to cover the electricity she would use in the lodge. Everything went well for two weeks, with all three sharing meals at the house. However, a change of mood past came over Gloria who decided that she no darknesslong wanted to have meals with Wood and bloody shame. Gloria fatigued more and more time by herself at the lodge. After 20 long time of the holiday Gloria, whose carnal condition had visibly deteriorated, announced that she refused to leave the lodge and was going to chit there the rest of the winter. This so enraged Wood and bloody shame that the attached day they told her to leave immediately, which she did.Six hours later, at 11 pm, Gloria rang their bell pleading to be let in as she was cold and hungry and had nowhere else to go. Wood and Mary refused, and during that night Gloria was taken to hospital suffering from hypothermia. epoch in hospital, Gloria fell unconscious and was placed on a life take machine. After ? ve days she was overcompensately diagnosed by Dr Spock as being in a persistent veg etative state with no hope of recovery. He accordingly dislocated the machine. Discuss the criminal responsibility (if any) of Wood and Mary. CommentaryThe sensible way to tackle this question is to start with an examination of failure to act as a basis for liability. The key aspect of this will be the compare of the given cases with earlier decisions such as R v Instan and R v sway and Dobinson. Care must be taken to distinguish between the facts of those cases and the current problem. The facts of the question require an examination of at least three bases for liability blood race, assurance, and creating a dangerous situation. Do not fall into the trap of thinking that the news of excision is all that is required.Candidates must establish a causal link between the cut and the deathin fact and in law. Finally, candidates will need to consider the most appropriate form of homicide. Candidates are advised not to waste blue-chip time considering murder or irregular act mans laughterthey are clearly not relevant on the facts. In relation to killing by gross negligence, candidates need to devote some time to the issue of calling of cautiousnessnote that this covers very similar ground to the discussion relating to liability for omissionbut the decision in R v Evans is particularly steadying and relevant here.Note Candidates are not required to consider the responsibility of Dr Spock. 22 The elements of a crime actus reus and mens rea Answer plan Is there a causative omission? run across the bases for liability for failing to actstatutory, contr true, and common law Distinguish R v Instan and R v Stone & Dobinson Consider R v moth miller and R v Evans Consider killing by gross negligence Can a trading of criminal maintenance be open up? Is the degree of fault required made out on the facts? Suggested answer The ? st issue to be resolved is whether or not Wood and Mary can be verbalize to have caused the death of Gloria. As there is no un equivocal act by either of them that causes death, the court would need to investi opening whether or not liability can be based on the failure of either or some(prenominal) of them to prevent Glorias death. The question as to whether an omission, as opposed to an act, can very cause a consequence is a moot point. Traditionally, the criminal law has always drawn a clear promissory note between acts and omissions, being loath to punish the latter.Other European countriese. g. , Greece, France and Germanydo not exhibit the same reluctance, and there is dispute as to whether the English approach is correct. See in particular the different views of Professors A. Ashworth (1989) 105 LQR 424 and G. Williams (1991) 107 LQR 109. However, unconnected from the numerous statutes that impose a transaction to act, e. g. , s. 170 of the Road Traf? c Act 1988, it appears that the common law will impose a employment to act only in very fastened circumstances.There can be no criminal liabilit y imposed on Wood and Mary in respect of their failing to care for Gloria unless the prosecution can establish that they were under a positive legal province to care for her. Such a employment can be imposed by statute, but that is clearly not the case here. Similarly a legal craft to act can arise from a contract between the parties. For example in R v Pittwood (1902) 19 TLR 37, where the defendant, a railway gate operator, was found guilty of manslaughter when a person was killed crossing a railway line as a result of the defendant leaving the gate open when a train was coming.In the sit case it could be argued that there was a contractual relationship, in that Gloria agreed to pay for her electricity and was in occupation of the lodge, but it is hard to see how any positive responsibleness to care for Gloria can be impliedand in any event it would be argued that the contract was only for the initial three-week period, and that it was a purely domestic arrangement not intende d to give rise to lawfully enforceable obligations. In respect of Wood it could be argued that he was under a common law traffic to care for Gloria because she was a relative.Where the relationship is that of parent and nestling the common law has had little dif? culty in identifying a positive legal province of care so The elements of a crime actus reus and mens rea 23 that failing to act can result in liability where it causes harm see R v Gibbins and watch over (1918) 13 Cr App R 134. In R v Instan 1893 1 QB 450, liability for manslaughter was imposed upon a niece who failed to care for her aunt with whom she was living, having been given money by the aunt to supply groceries. Liability in Instan was largely based on the existence of a blood relationship between the parties.This would seem to suggest that, at least in the case of Wood, there might be a common law duty to act. It is submitted that the present case can be distinguished from Instan. In Instan the defendant in truth occupied the same house as the departed, and had expressly undertaken the task of purchasing nourishment for her, which she subsequently failed to do, knowing well that her aunt could not fend for herself. In the present case Gloria decided for herself that she wanted to stay in the lodge alone, thus airlift the question of whether Wood was obliged to do anything more for her than he had been doing during the ? st two weeks of her stay. moreover the evidence suggests that it was refusing to demonstratemit Gloria after she had been told to leave that led to her deathraising the question of whether Wood was under any obligation to readmit Gloria. The much more undimmed argument for the prosecution is that a positive legal duty to act at common law arose in respect of both Wood and Mary because they had allowed a relationship of credence to develop between themselves and Gloria. The key function here is R v Stone and Dobinson 1977 QB 354.In that case the Court of Appeal up held convictions for killing by gross negligence on the basis that the defendants had admitted the deceased to their house and had essay to care for her. They and so failed to discharge their duty adequately and failed to get hold any assistance in discharging that duty. The court stressed that the duty to act arose not simply because of a blood relationship between one of the defendants and the deceased, but because of the reliance relationship.It could be argued that in allowing Gloria to stay Wood and Mary allowed a relationship of reliance to developbut the present case can be distinguished from Stone and Dobinson on the grounds that Wood and Mary placed a time limit on Glorias stay, and Gloria left of her own volition. Thus the argument as to whether or not there is any liability for failing to act is ? nely balanced. The prosecution could run an preference argument on the basis that when Gloria begs to be readmitted to the house Wood and Mary are aware that their expulsion of Gloria has created a dangerous situation.There is evidence that Glorias tangible condition had visibly deteriorated. Gloria was cold, hungry, and had nowhere to go. There was evidence that Gloria was eccentric. Applying R v Miller 1983 1 All ER 978, where the House of Lords upheld the accuseds conviction for criminal damage where he had inadvertently started a ? re and then, when he realized what he had done, simply left the building without making any attempt to prevent the ? re spreading or to call the ? re brigade, it could be argued that by failing to state Gloria shelter, Wood and Mary committed vicious omission that caused Glorias death.For the Miller principle to apply, the prosecution would have to show that the defendants were both aware that their expulsion of Gloria had created a dangerous situation. On the facts this should not be too dif? cult. 24 The elements of a crime actus reus and mens rea expect that the failure to care for Gloria, or the refusal to readmi t her to the house, can form the basis of liability, the prosecution will have to show that this omission caused Glorias death. It is not necessary for the prosecution to prove that the omission was the sole or main cause, merely that it contributed signi? antly to the victims death (R v Cheshire 1991 3 All ER 670). The accused could argue that the doctors turning off the life support system constituted a novus actus interveniens, breaking the chain of causation but this argument was rejected by the House of Lords in R v Malcherek R v Steel 1981 2 All ER 422, where Lord Lane CJ stated that the fact that the victim has died, despite or because of medical treatment for the initial injury given by careful and practised medical practitioners, will not conduct the original assailant from responsibility for the death.It is therefore clear that the medical treatment, of itself, will not be held to have mixed-up the chain of causation in law. Wood and Mary could be charged with manslaugh ter on the basis of killing by gross negligence, which, unlike unlawful act manslaughter, can be based on an omission see R v Lowe 1973 1 All ER 805. The key authority regarding killing by gross negligence is the House of Lords ruling in R v Adomako 1994 3 All ER 79, where their Lordships held that an accused would be guilty of manslaughter if the following four conditions were satis? d (i) the accused owed a duty of care to the victim (ii) that duty was broken (iii) the conduct of the accused was grossly negligent (iv) that conduct caused the victims death. In some cases the existence of a duty of care will be self-evident, for example doctor and patient, parent and sister etc. Notwithstanding the decision in R v Instan, it should not be assumed that all familial relationships will give rise to a legal duty of care, and in any event this would not assist as regards Mary. Signi? antly, the Court of Appeal decision in R v Evans 2009 EWCA Crim 650, indicates that a duty of care will be recognized by the courts in what might be referred to as R v Miller situations i. e. , where the defendant has created a dangerous situation and is aware, or ought reasonably to be aware, that this is the case. Allowing Glorias physical condition to deteriorate and then not allowing her back into the house might provide the evidential basis for this. The trial judge in the present case should direct that they can conclude that a duty of care existed provided they ? d certain facts establishedand the trial judge should make clear to the jury what those key facts are. It is submitted that there is suf? cient evidence for the jury to conclude that a duty of care existed. The breach of the duty of care is evident in their not service Gloria and not attempting to obtain any alternative assistance for herthey did not even call the police to The elements of a crime actus reus and mens rea 25 advise them of the problem. The issue of whether this breach of the duty of care can be tell t o have caused the death of Gloria has already been considered above.The stay live issue, therefore, is that of gross negligence. Following the House of Lords decision in R v Adomako the jury will have to adjudicate whether or not the accuseds conduct (a) departed from the proper standard of care incumbent upon them (b) involved a risk of death to the victim (c) was so grossly negligent that it ought to be regarded as criminal. As later cases such as R v Mark and another 2004 All ER (D) 35 (Oct) indicate, actual foresight of risk of death by the accused is not required.The test for mens rea is objectivedoes the jury regard the act or omission leading to the breach of duty as being so culpable that it should be labelled as criminal? Evidence that the defendants knew they would cause harm by not acting is admissible to establish the required fault, but is not essential. Similarly, evidence that Mary and Wood had never thought about what might happen to Gloria could be admissible to sh ow that they should not be labelled as criminals, but such evidence would not preclude a ? nding by the jury that they had acted, or failed to act, in a manner that was grossly negligent. Question 5Critically analyse with reference to decided cases, the reasons why the development and application of the criminal law is often unpredictable and inconsistent. Commentary at times an exam will contain a question that requires candidates to take a wider view of the criminal law. This is such a question. Candidates cannot simply home in on a speci? c area and cover it in detail. Candidates must try to think of instances throughout the syllabus that can be used in your arguments to answer the question. Avoid the common mistake of see the question to read Choose one area of the criminal law where there are dif? ulties and write all about them This question has been included as it enables candidates to think more wide about the role of the criminal law within the legal system and inn as a whole. Providing a good answer requires the ability to take a broad view of the syllabussomething candidates who retool topics in isolation are not always able to do. 26 The elements of a crime actus reus and mens rea Answer plan perpetual changeR v R 1991 Lack of autographCaldwell 1981, Morgan 1975 Logic v policy Role of House of Lords horsefly 1995 Suggested answer The development of many areas of law follows a consistent and system of logical course.The fundamental foundations, their concepts and application are accepted by the vast majority, and only ? ne tune or adjustments of these principles are required to fill new situations. Unfortunately this cannot be said about criminal law, where the debate about fundamental conceptssuch as whether recklessness should be interpreted subjectively or objectively whether a mistake of fact relied upon by a defendant should have to be one that a reasonable person would have made whether custody should be a defence to a charge of murderis still ongoing. One of the problems is that the criminal law is subject to invariable change.It has to adapt to cover new phenomena, such as stalking, drug abuse, and internet faker and to re? ect societys changing social and moral standards. As the House of Lords stated in R v R 1991 4 All ER 481, abolishing the husbands married rape exemption, the common law is capable of evolving in the light of social, economic and ethnic developments. In that case the recognition that the military position of women had changed out of all recognition from the time (Hales Pleas of the Crown 1736) when the husbands marital rape exemption was initially recognized was long overdue. Similarly, the criminal law once re? cted the moral position that it was a crime to take ones own life. Failure in such an enterprise was prosecuted as seek suicide and could be punished. However, attitudes softened and it was recognized that such a person unavoidable help, not a criminal trial the law was consequently amended by the Suicide Act 1961. The 1960s saw similar changes in respect of the law relating to homosexuality and abortion. Changes in the law can also result from a reassign in ideology on the part of an elected government, or as a response to new threats to the safety and stableness of societyfor example legislation to chip terrorism.There is no doubt that the development and application of the criminal law would be more consistent and predictable if the courts exhibited a more uniform approach to its development. The problem is illustrated by two House of Lords decisions Metropolitan police Commissioner v Caldwell 1981 1 All ER 961, where an objective approach to recklessness was used, and DPP v Morgan 1975 2 All ER 347, where a subjective approach to mistake was applied. why was it that liability for recklessness was imposed on an objective basis, but where a defendant made a mistake of fact heThe elements of a crime actus reus and mens rea 27 was entitled (subj ect to any statutory provision to the contrary) to be judged on the facts as he honestly believed them to be? Commentators may argue that two different areas of the criminal law were being considered, criminal damage and rape (note that the law has since been changed as regards rape by the Sexual Offences Act 2003), but the inconsistency is still stark. At least in so far as recklessness is concerned, the House of Lords has now embraced the notion of subjectivity again in R v G 2003 4 All ER 765, but the very fact that the legal de? ition of such a basic concept can change so much in the space of 20 years is itself startling. The Law Commission has long argued that the solution lies in codifying the law (see Law Com. No. 143) on the basis that the criminal law could then exhibit a uniform approach to all crimes and defences. All other major European countries (France, Germany, and Spain) have a detailed criminal code, with a uniform approach providing a starting point for interpreti ng the law. The criminal law in England and Wales has developed in a piecemeal fashion, with one offences development present little consistency with anothers.So often it is dif? cult to say what our law actually is, even before lawyers start to debate how it should be applied, e. g. , R v fell R v Parmenter 1992 1 AC 699, interpreting (after over 130 years of use) the provisions of the Offences Against the Person Act 1861. A code could be expressed in clear language with de? nitions of fundamental concepts such as intention and recklessness, as suggested by the Law Commissions plan Criminal Code although, as the former chairman of the Law Commission Justice Henry Brooke stated (1995 Crim LR 911) Nobody in their right mind would want to put the existing criminal law into a codi? d form. Often the criminal law follows a logical approach in its application but as it does not exist in a vacuum and is not simply the application of academic principles, policy considerations sometimes have to prevail. As Lord Salmon stated in DPP v Majewski 1976 2 All ER 142, regarding the defence of intoxication, the answer is that in strict logic the view intoxication is no defence to crimes of basic intent cannot be justi? ed. But this is the view that has been adopted by the common law which is founded on common sense and experience rather than strict logic. Policy considerations are also behind s. (3) of the Criminal Attempts Act 1981, whereby in the offence of attempt, the facts are to be as the accused believes them to be. Thus an accused, objectively viewed, may appear not to be committing a criminal act but because they believe they are, they can be guilty of attempting to commit that criminal act, as in R v Shivpuri 1986 2 All ER 334. There is often no means of predicting which approach will prevail. In Jaggard v Dickinson 1980 3 All ER 716, the accused, who had been informed by her friend X that she could break into Xs house to shelter, while drunk mistakenly broke int o Vs house.She was charged with criminal damage under s. 1(1) of the Criminal Damage Act 1971, but argued that she had a lawful excuse under s. 5(2) of the Act as she honestly believed that she had the possessors consent. Although the prosecution contended that this was a crime of basic intent and therefore swallow was no defence (citing the 28 The elements of a crime actus reus and mens rea House of Lords decisions of Metropolitan Police Commissioner v Caldwell and DPP v Majewski in support), the Court of Appeal quashed her conviction, giving priority to the statutory provision of s. (2) of the 1971 Act. One important aspect of the criminal law process in recent years, which has caused uncertainty, is the role of the House of Lords in changing the criminal law. clear adjudicate are there to say what the law is, not what it should be but Lord Simon in DPP for Northern Ireland v kill 1975 1 All ER 913 said I am all for recognising that settle do make law. And I am all for judge exercising their responsibilities boldly at the proper time and placewhere matters of social policy are not involved which the collective wisdom of Parliament is better suited to resolve.Thus in R v R, the House of Lords changed the law of rape, by abolishing the husbands defence of marital rape immunity without time lag for Parliament to implement the Law Commissions recommendations. However, their Lordships took the opposite view in R v Clegg 1995 1 All ER 334, where they refused to follow the Law Commissions suggestion that a person who was entitled to use force in self-defence but who used unreasonable force, thereby killing the victim, would be guilty of manslaughter, not murder.Lord Lloyd stated I am not adverse to judges developing law, or indeed making new law, when they can see their way clearly, even where questions of social policy are involved. A good example is R v R. But in the present case I am in no doubt that your Lordships should abstain from law making. The dr op-off of what would otherwise be murder to manslaughter in a particular class of case seems to me essentially a matter for decision by the legislature. It is dif? cult to appreciate the essential difference in issues in these two cases, despite Lord Lowrys justi? cations in R v Clegg that R v R dealt with a speci? act and not with a general principle governing criminal liability. Clearly there is a difference in opinion amongst the Law Lords as to the correct application of these principles. This is well illustrated by the House of Lords decision in R v Gotts 1992 1 All ER 832. The majority decision not to allow durance as a defence to attempted murder was on the basis that bonds was no defence to murder. The minority view to the contrary revealed a different analysis. They argued that chains is a general defence throughout the criminal law with the exceptions of the offences of murder and treason.It is for Parliament, and not the courts, to limit the ambit of a defence and as a ttempted murder is a different offence to murder, duress must therefore be available. It is submitted that these are the main reasons why the development and application of the criminal law is often uncertain and unpredictable. There are other factors, such as whether an issue is a question of law for the judge or fact for the jury, e. g. , the meaning of administer (R v Gillard (1988) 87 Cr App R 189) the dif? culty in ascertaining the ratio decidendi of many cases, e. g. R v Brown 1993 2 All ER 75 (consent) and the possible effect of the decisions of the European Court of gentleman Rights. But it is the lack of a code and uniform principles which are the main factors causing the inherent uncertainty. The elements of a crime actus reus and me