advised the use of the term ‘external elements’ in place of actus reus and ‘fault element’ in place of mens rea. The Criminal Code was not, however, implemented.
Despite these criticisms, the author takes the view that such a debate is unproductive, and instead it should be accepted that the term is now used simply as a form of ‘shorthand’ for lawyers. Probably the best exposition of this point was provided by Perkins (‘A Rationale of Mens Rea’ (1939) 52 Harv LR 905), who argued:
Some years ago the mens rea doctrine was criticised on the ground that the Latin phrase is ‘misleading’. If the words ‘mens rea’ were to be regarded as self-explanatory they would be open to this objection, but they are to be considered merely as a convenient label attached to any psychical fact sufficient for criminal guilt … This includes a field too complex for any brief self-explanatory phrase, and since it is important to have some sort of dialectic shorthand to express the idea, this time-honoured label will do as well as any.
As a result, the terms actus reus and mens rea shall be retained for use in this text.
2.3Conduct and result crimes
Criminal offences can, rather helpfully, be divided into two types:
•conduct crimes; and
•result crimes.
The distinction between these two types of crimes is essential when one has to consider causation. Causation is an element of the actus reus of an offence and requires the arbiters of fact to be sure that the defendant ‘caused’ the end result. Note those last two words, however – end result.
In brief, conduct crimes require no proof of causation (ie no proof of the ‘consequences’ element); whereas result crimes do require such proof. It is always necessary to identify the elements of an offence in order to be certain as to what the defendant must ‘do’ in order to be liable for an offence. It is an essential classification.
2.3.1Conduct crimes
Conduct crimes are offences where the defendant’s conduct is prohibited (unlawful) regardless of the end result. Another way of explaining this is to say that the consequences, if any, of the defendant’s behaviour are irrelevant to his liability. Examples of conduct crimes include:
•perjury;
•theft; and
•rape.
As stated above, there is no need to prove causation when considering a conduct crime given that the end result brought about by the defendant is irrelevant to his liability. For example, in a case of theft, it is irrelevant in theory as to whether an individual has actually managed to steal an item from a supermarket. All that is required is that he appropriates such property with the dishonest intention to steal. In practice, of course, the police are unlikely to arrest and the CPS unlikely to charge an individual unless the item was actually stolen; however, there need be no proof of such causation when considering conduct-only crimes.
By way of a second example, consider the offence of perjury, contrary to s 1(1) of the Perjury Act 1911. Section 1(1) provides:
If any person lawfully sworn as a witness or as an interpreter in a judicial proceeding wilfully makes a statement material in that proceeding, which he knows to be false or does not believe to be true, he shall be guilty of perjury. (emphasis added)
It is irrelevant whether the evidence actually turns out to be true, so long as the defendant believes it to be untrue. This is because the end result (ie whether the statement is actually untrue) is irrelevant; the conduct (ie the making of the statement) is the essential ingredient for the offence.
2.3.2Result crimes
Result crimes are offences where the defendant’s conduct has caused or resulted in certain specified consequences. Examples of result crimes include:
•murder;
•grievous bodily harm (GBH); and
•common assault.
In these cases, there must be proof that the defendant ‘caused’ the end result. For example, the offence of murder requires an ‘unlawful killing of a human being’. In the case of murder, many students incorrectly state that causation is satisfied where the victim ‘dies’. As will be discussed in Chapter 8, this is inappropriate, given that everyone must die at some point in their lives. As a result, therefore, the true causation element required for murder is that death has been ‘accelerated’ as a result of the defendant’s conduct (R v Dyson [1908] 2 KB 454, per Lord Alverstone CJ).
For example, should Jill stab Jack to death, the stabbing is the conduct. The acceleration of the death of Jack is the result or consequence of that conduct. It must be proven, therefore, that Jill caused the death of Jack. In this example, it may appear obvious that Jill has caused Jack’s death. However, consider these alternative facts:
• Jill had only stabbed Jack in the arm. As a result, Jack fell backwards, hit his head on a rock and died. Would Jill still be the cause of death?
•Jack, on being taken to the hospital, was involved in a car crash and died. Would Jill still be the cause of death?
Causation can be a difficult topic for students to grasp and will be considered below at 2.7.
2.4Voluntary and positive conduct
The majority of criminal offences require acts or omissions on the part of the defendant. Such acts or omissions must ordinarily be willed or ‘voluntary’ and often require a positive act from the defendant. Although absolute liability (see below at 2.5) need not involve a positive or voluntary act on the part of the accused, it still requires the accused to have done something, or more accurately, ‘be somewhere’.
We shall now consider both of these concepts.
2.4.1Voluntary and involuntary conduct
It is first necessary to distinguish between voluntary conduct and positive acts. It is common for many textbooks to place positive acts in the same category as voluntary conduct. To do so, however, is inaccurate. An act may be voluntary without it being a positive act. For example, Jack may voluntarily decide to starve Jill. One may argue that this would amount to a positive act as Jack has voluntarily and intentionally withheld food from Jill. On the other hand, one may argue that this is a failure to act (an omission), as Jack has not given Jill food when he may be under a specific duty to do so. This distinction is drawn upon at 2.4.2.1, and it is important that you bear this distinction in mind as you read the next few sections of this chapter.
2.4.1.1Voluntary conduct
Voluntary conduct is self-explanatory as where the defendant acts voluntarily in a free and willed manner. As with our example above, Jill stabs Jack. Simply, Jill has voluntarily stabbed Jack. Take another example:
