Areas to be covered:

1. Introduction to Criminal Law

2. Nature of a Crime

3. Classifications of Crimes

4. Elements of a Crime – Actus Reus and Mens Rea

5. Crimes of Strict Liability

6. Burden and Standard of Proof

1. INTRODUCTION TO CRIMINAL LAW

The purpose of criminal law is to forbid conduct that unjustifiably inflicts or threatens

substantial harm to the individual or to the public interest. Its objective is the

preservation of public peace and order and it achieves this objective by warning people

of the nature of the offensive conduct (crimes) and by imposing punishment for

committing this prohibited conduct. Essentially criminal law involves the prosecution of

a person(s) by the State and the punishment of the wrongdoer. However to be found

guilty of a crime the prosecution must prove its case against the accused ‘beyond a

reasonable doubt’. A number of important features are present in a criminal case:

(i) Deliberate intention

(ii) Threat to society

(iii) Prosecution by the State

(iv) Punishmen

2. NATURE OF A CRIME

A crime can be defined as a wrongful act which directly and seriously threatens the

security or well being of society.

When does wrongdoing amount to a crime?

1) No liability can be imposed unless an offence (recognised by law) has been

committed. This rule is best illustrated in the case of the People (DPP) v

Kavanagh (1997). In this case the Defendant was charged before the Special
Criminal Court (SCC) with a number of offences including common law

kidnapping and false imprisonment. However the charges were brought prior to

the enactment of the Non-Fatal Offences Against the Person Act, 1997 which had

abolished those common law offences before the Defendant’s trial. He argued

that the charges of kidnapping and false imprisonment were contrary to common

law and therefore unknown to the law. The SCC accepted his argument and felt

that it had no choice but to dismiss the charges. This position was subsequently

rectified by the Interpretation (Amendment) Act 1997 which states that where a

common law offence is abolished by statute, that abolition will not prevent

prosecutions being taken or continued in respect of any such offence committed

before the abolition. Thus before criminal charges can be proffered against a

person, the Defendant’s conduct must be illegal at the time it was committed.

2) If the law prescribes punishment for certain wrongdoing then such wrongdoing is

considered a ‘crime’. Kingsmill Moore J in Mellig v O’Mathghamhna (1962)

stated that ‘the criminal quality of an act cannot be discerned by intuition; nor

can it be discovered by reference to any standard but one: is the act prohibited

with penal consequences?. A crime, by definition therefore, attracts punishment.

3) Thirdly, unlike civil or tortuous claims, the prosecution of a crime is generally

carried out by the State in the form of An Garda Siochana Director of Public

Prosecutions (DPP). The DPP conducts criminal proceedings both on behalf of the

State and in the public interest as a crime is regarded not only as a wrong

perpetrated against an individual victim but against the community itself. As a

consequence the role of the victim in criminal trials is limited.

4) 3. CLASSIFICATIONS OF CRIMES

In Ireland crimes fall into two main categories:

1. Summary Offences – minor crimes (e.g. public order offences)

2. Indictable Offences – serious crimes (e.g. murder, rape, etc)

Summary Offences

Summary trial or summary jurisdiction means the right to hear and determine a criminal
charge in a summary and expedient manner. In other words without the necessity to

furnish the accused with voluminous disclosure or swear in a jury. Summary offences are

minor in nature Many summary only offences are found in the Road Traffic Acts 1961-

2011 and include dangerous driving (s. 53), driving under the influence of an intoxicant

(s. 49) and driving without insurance (s. 56). Other examples are found in public order

legislation, e.g. intoxication in a public place.

Indictable Offences

Indictable offences are those which are capable of being tried on indictment – i.e. before

a judge and jury. Nonetheless not all indictable offences proceed before a judge and

jury as the District Court itself may have jurisdiction to deal summarily with an indictable

offence. For example, presently the vast majority of criminal offences can be tried either

summarily or on indictment as the statute creating the offence usually specifies

alternative penalties providing the DPP with the choice to proceed summarily or on

indictment (often referred to as ‘hybrid offences’). Where this arises, a trial can only

proceed summarily before the District Court if:

•The DPP consents to summary disposal, and

•The District Court Judge is satisfied the alleged offence is minor in nature (this is

known as ‘accepting jurisdiction’)

If both conditions are not satisfied the trial proceeds by way of indictment. It is worth

pointing out however that in some cases a third condition must be satisfied before the

charge can be disposed of summarily. Section 2 of the Criminal Justice Act, 1951

provides an accused with what is knows as ‘a right of election’ whereby s/he can elect to

have the trial heard before a jury. This right of election only arises where the offence

charged is listed in the schedule to the 1951 Act (often referred to as ‘scheduled

offences’). However where a right of election arises, it is not uncommon for the accused

to waive his/her right to a trial by jury, as this permits the matter to remain in the

District Court where the maximum penalties to be imposed are far lower than those

applicable before the higher courts

4. ELEMENTS OF A CRIME
Actus Reus: guilty act

Mens Rea: guilty mind

The majority of crimes comprise of two essential elements; an actus reus (i.e. the guilty

act) and a mens rea (i.e. the guilty mind). To secure a conviction the prosecution must

prove, beyond a reasonable doubt, the presence of both elements at the time the crime

was committed. Some crimes however do not require proof of mens rea. These are

known as crimes of ‘strict liability’ and are addressed in more detail below. Failure to

prove either of these two elements can result in an acquittal.

Presumption of Innocence

An accused person in Ireland is presumed innocent until proven guilty. The importance

of this presumption was highlighted by the House of Lords decision in Woolmington v

DPP (1935) where the court held:

“Throughout the web of […] Criminal Law one golden thread is always to be seen

that it is the duty of the prosecution to prove the prisoner's guilt subject to... the

defence of insanity and subject also to any statutory exception. If, at the end of

and on the whole of the case, there is a reasonable doubt, created by the

evidence given by either the prosecution or the prisoner[...] the prosecution has

not made out the case and the prisoner is entitled to an acquittal. No matter

what the charge or where the trial, the principle that the prosecution must prove

the guilt of the prisoner is part of the common law of England and no attempt to

whittle it down can be entertained."

The Supreme Court recognised these protections are guarantee by Article 34 of the

Constitution of Ireland. Lord Sankey also noted that one golden thread is always to be

seen throughout the web of Irish law, namely the duty on the Prosecution to prove the

prisoner’s guilt. The commentator Blackstone also famously remarked “better that ten

guilty persons escape than that one innocent suffer”. Like any other presumption

however it can of course be rebutted by evidence. Nonetheless the prosecution bears

the sole burden (although there are some notable exceptions) and responsibility of

rebutting this presumption by proving a person’s guilt beyond a reasonable doubt.

The actus reus is the action necessary for the commission of a crime. It consists of some

act or omission forbidden by law and is often described as the necessary physical

element or conduct of the crime. However the precise requirements of the actus reus

varies depending on the offence charged. For example the actus reus of murder is the

unlawful killing of a human being. Thus, in order to establish the actus reus of murder,

the prosecution must prove that a person has actually been killed (by the Defendant)

and that the killing was unlawful (i.e. not excusable by virtue of self-defence, etc).

Without evidence of the actus reus; a conviction is impossible. This applies even where

the accused inadvertently believes s/he has committed a crime and fully intended on so

committing. In R v Deller (1952) the Defendant, believing that a vehicle was mortgaged

to a finance company, fraudulently induced another to purchase the vehicle with

assurances that it was free from any charges. Unknown to the Defendant the mortgage

over the car was actually invalid and of no effect. On appeal his conviction was

overturned due to a failure on the prosecution’s part to prove the actus reus of the

crime – i.e. he had actually been telling the truth!

Involuntary Actions as Crimes:

Acts must be voluntary before they can be subject to criminal sanction. Thus the law will

not generally impose liability where a person had no control over his actions. For

example in R v Boshears (1961) the Defendant was acquitted of murder where he killed

a woman while he was sleeping. The court took the view that the defendant had no

control over his actions; his conduct being involuntary. This case highlights the potential

difficulties that arise where a person is acting without the full control of his mind – an

area that will be considered in more detail later in the course (see: lecture on Defences).

However in very rare instances the law may attribute liability to a person even where his

actions are not voluntary. For example;

A. If a person is completely intoxicated it could be argued that his conduct was

involuntary in the sense that he had no idea what he was doing and therefore lacked

the necessary self-control. However the law currently treats intoxication as an act of

recklessness itself and liability may be imposed despite the fact that the defendant’s

behaviour might not be characterised as ‘voluntary’ in the strictest sense – DPP v

Majeski (1976).
B. An offence may also be defined in such a way that where a particular ‘state of affairs’

exists (or situation arises) the actus reus of the offence is deemed to be present.

Legal Duty to Act - Omissions

As indicated above an actus reus is generally concerned with the conduct of the

Accused. Traditionally the law has been reluctant to penalise persons for a failure to act;

the reasoning being that we are autonomous individuals who can choose to act and

break the law. The criminal law exists not necessarily to promote the doing of good but

rather to suppress the infliction of injury. However in some cases a failure to act may be

regarded as sufficient to establish the actus reus of the offence. A legal duty to act can

arise in a number of instances; under the common law, statute and contract.

Duty under Contract

In R v Pittwood (1902) the Defendant was employed as a gatekeeper at a railway

crossing. Part of his duties consisted of ensuring the gate was closed when a train was

approaching. On one occasion he forgot to close the gate and a person was killed. The

Court found him guilty of manslaughter on the basis of his contractual obligations. The

fact that the victim was not a party to the contract was found to be irrelevant. The

Defendant was employed specifically to protect the public and had failed by an act of

omission to carry out his duty.

Duty under Statute

There are numerous instances where a statute imposes a duty on individuals to act.

Failure to act in accordance with the statutory provisions can result in the imposition of

criminal liability. For example Section 56 of the Road Traffic Act 1961 imposes a duty

upon all car users to obtain third party liability insurance. Failing to comply with this

provision is a criminal offence punishable by a fine and or imprisonment.

Duty under Common Law

The Common Law recognises a number of situations where a failure to act can result in

the imposition of criminal liability. Traditionally these duties arise in the following

situations:

•As a consequence of ones status as a public official;

•As a consequence of one’s relationship to the victim;

•As a consequence of assuming responsibility for a person;

•Where a person creates the danger him/herself.

(a) Public Officials

In R v Dytham (1979) a police officer was prosecuted for misconduct in a public office

where he witnessed the deceased being kicked to death outside a nightclub but failed to

make any attempt to assist the victim. Similarly in the Irish case of the DPP v Bartley

(1997) Carney J endorsed the decision in the Dytham in circumstances where a wo man

in the process of reporting a complaint of prolonged sexual abuse against her

stepbrother to Gardai, received the following response from a member of the force;

“Well, did you not enjoy it? Did you not feel good about the fondling and what your

brother was doing?”. This rejection ultimately resulted in her suffering further years of

abuse. Following on from this decision, the common law in Ireland appears to impose a

legal duty on a member of An Garda Siochana to conduct an investigation on receipt of a

credible complaint relating to the commission of a non-minor offence. Failure to act in

these circumstances can render the member liable to prosecution.

(b) Relationship to Victim

A duty to act may also arise where a close personal relationship exists between the

Defendant and the injured party/victim. For example the law recognises that parents

have a duty to protect their dependant children. In R v Senior (1832) the Defendant was

found guilty of manslaughter for failing to provide medical care to his sick child believing

it to be immoral. Similarly in R v Lowe a woman was charged with manslaughter

following the death of her child in circumstances where she refused to bring the child to

the hospital fearing it would be taken from her.

(c) Voluntary Assumption of Responsibility

Even in the absence of a personal relationship; a duty to assist others may arise where a

person voluntarily assumes responsibility for another. In R v Stone & Dobinson (1977)

both defendants were convicted of manslaughter for failing to provide medical

assistance to an elderly relative of the first defendant. The deceased, an old lady had

been lodging with the defendants, and was left bedridden after refusing to eat her
meals. Some weeks later her decomposing body was found alone in her bedroom. The

Court of Appeal upheld their convictions on the basis that the defendants had accepted

responsibility for the deceased and were under a duty to act to prevent her suffering

unnecessary harm. A similar decision was reached in R v Gibbons & Proctor (1918). Its

worth noting that this duty does not appear to be confined to dependent relatives. In R

v Nicholls (1875) the court held that “a grown up person who chooses to undertake the

charge of a human creature helpless either from infancy, simplicity, lunacy or other

infirmity, is bound to execute that charge without wicked negligence. See also: R v

Taktak (1988).

d) Creation of Dange

If a person creates a dangerous situation the law may impose a duty to at least minimise

that danger. In R v Miller (1983) the Defendant, a squatter, fell asleep while smoking a

cigarette. He awoke to find the mattress on fire, but failed to take any steps to

extinguish the fire. Instead he merely went to another room where he fell asleep again.

He was charged with, and convicted of, arson and appealed on the grounds that failure

to put out a fire started accidentally cannot establish the actus reus of arson. The House

of Lords held that having started a fire accidentally the defendant was under a duty to

take steps to extinguish it, particularly in circumstances where he could have done so

without any difficulty or danger to himself.

CAUSATION

It should be noted that some crimes require a particular result to be achieved before a

person can be found guilty (result crimes) whereas other offences only require proof

that that the accused conducted himself or herself in a particular manner (conduct

crimes). For example:

•Murder involves the unlawful killing of a person and thus necessitates proof of

death. A charge of murder therefore is contingent on the defendant’s actions

resulting in the death of another person.

•By contrast the offence of perjury involves the making of a false statement under

oath however there is no requirement to prove that the act of perjury actually
brought about a particular result.

In the context of result crimes the prosecution must prove a causal connection or

unbroken chain linking the criminal conduct of the accused and the result which was

achieved. In R v White (1910) the Defendant poisoned his mother’s drink, intending to

kill her. However she was later found to have died of a heart attack. The Defendant

could not be convicted of her murder but only her attempted murder.

It is possible that the causal link between the Defendant’s criminal conduct and the

unlawful result may be severed or broken by an intervening act which can have the

effect of absolving the Defendant from all responsibility. This is known as a ‘novus actus

interveniens’ and involves a voluntary act (by a third party, the victim himself, or some

other source – e.g. an act of God) which arises outside the control of the Defendant, is

unforeseen and which intervenes to break the chain of causation linking the Defendant’s

conduct with the result. If this occurs it may have the effect of relieving the Accused of

all responsibility for his actions. For this reason the Courts have indicated that only

extraordinary and unusual events may sufficiently break the chain of causation.

In R v Jordan (1956) the perpetrator of a stabbing escaped liability where his victim, who

had almost fully recovered from his wounds, subsequently died after suffering an allergic

reaction to the administration of an antibiotic. However in R v Smith (1956) the court

held that the chain would only be broken in these circumstances where the second

cause “was so overwhelming to make the original wound merely part of history”. In

other wounds where the original wound is an operating and substantial cause of death,

the chain of causation will not be broken.

In R v Hallett (1969) the accused argued that the tide coming in on a beach was an Act

of God. The accused had made sexual advances on another man armed with a knife. A

fight took place which left the victim lying unconscious on the shore at low tide. Hallett

then fell asleep and awoke to find the victim had drowned when the tide came in. The

Court rejected the novus actus argument and held that the actions of the accused were

the substantial operating cause of death and that the tide was a foreseeable event,

because it came in and out twice a day. See AG v McGrath (1960) and R v Kennedy
(2007)

Eggshell Skull Rule

The law states that a Defendant wrongdoer “must take his victim as he finds him”. Thus

where a victim suffers more substantial injuries than expected, perhaps due to some

inherent susceptibility to injury, the Defendant cannot rely on this fact to escape the

consequences of his actions. In R v Blaue (1975) the deceased, an 18-year old Jehovah’s

witness refused to consent to a blood transfusion on religious grounds despite warnings

that it could result in her death. The Defendant, who had seriously attacked her with a

knife, unsuccessfully argued that her refusal constituted a novus actus sufficient to break

the chain of causation. It was held that the wrongdoer must take his victim as he finds

him, and this includes the religious and spiritual values held by that victim. The Court

concluded that her death was brought about by the stabbing for which the Defendant

bore responsibility. See R v Hayward (1909) and R v Kennedy (2007)

[B] MENS REA

The mens reus concerns the mental or fault element of the offence. Essentially it

concerns the necessary blameworthy state of mind that is required to prove a particular

offence. For example, to prove murder – the required state of mind is that of ‘intention’

to kill or cause grievous bodily harm; mere recklessness on behalf of an accused person

is insufficient to bring home a conviction for murder. There are various degrees of mens

rea which are now considered separately.

(i) Intentional Conduct

To assist the Court in determining intention, there is a presumption in law whereby a

person is presumed to have intended the natural and probable consequences of their

actions – Section 4(2) Criminal Justice Act 1964. It should be noted that intent may be

direct or oblique.

Direct intention arises where the Defendant deliberately brings about a desired result.

For example, A wanting to kill B, aims a gun and fires at B. A has a direct intention to

commit murder.

Oblique intention arises where the Defendant’s actions were deliberate but the result
was not specifically desired. In Hyam v DPP (1975) the defendant put burning

newspaper through the letterbox of a house in order to frighten a woman inside. The

defendant was also aware that people (2 children) were sleeping in the house. The

court convicted her of murder in circumstances where she knew or foresaw death as ‘a

highly probable consequence of her actions’. The test in Hyam was adopted in Ireland in

People (DPP) v Douglas & Hayes (1985) and has been placed on a statutory footing by

virtue of Section 4(2) Criminal Justice Act 1964.

Proving Intention – the Irish approach for proving intention was set out in People (DPP)

v Hull (1996) whereby the Court of Criminal Appeal advocated a two-step approach to

using the presumption contained in s.4.

•Firstly the jury should be asked – was death or serious injury a natural and

probable consequence of the Defendant’s actions? If yes then;

•Consider any explanation offered by the Defendant and decide whether the

prosecution has ensured that the presumption has not been rebutted. If

satisfied it has not – entitled to find there was an ‘intention’.

ii) Recklessness
This is a lesser form of mens rea and arises where a person (while not intending to bring

about a particular result) takes a conscious but unjustifiable risk. In some instances

recklessness is interpreted subjectively (i.e. Defendant must have foreseen the risk but

decided to run with it anyway) and in others it is determined objectively (i.e. Defendant

did not foresee the risk but ought to have foreseen it). The position in Ireland as to what
constitutes ‘recklessness’ is not altogether clear however in the leading case of People

(DPP) v Noel and Marie Murray (1977) which concerned the murder of an off-duty

police officer, the issue arose in the context of whether the defendants (who were

charged with capital murder) knew that the victim was a police officer. It was sufficient

to show they were reckless as to the fact that he was a police officer, however in

determining which test to apply the Supreme Court appeared to favour the subjective

test for recklessness

iii) Criminal negligence

Negligence in criminal law is of a higher standard to that applied in civil (or tort) law.

However this category of mens rea is confined to situations where the Defendant’s

actions are not intentional or reckless but nonetheless represent a substantial departure

from the ordinary standard of care expected of a reasonable man such that the conduct

is sufficiently grave to sustain a conviction – usually for manslaughter. In R v Lamb

(1967) a boy pointed a loaded gun at his best friend for fun. Being inexperienced he did

not fully understand the firing mechanism and believed that it was safe to pull the

trigger, ultimately killing his friend. The Court accepted that the act was not committed

intentionally or recklessly (because he believed that there was no risk) however, the

Court felt his actions were negligent by falling below the required standard of care

expected of ordinary persons and accordingly found him guilty of manslaughter. In

People (DPP) v Dunleavy (1948) it was held that in order to be convicted of criminal

negligence; the actions of the Defendant must have involved, in a very high degree, the

risk or likelihood of substantial personal injury to others

iv) Strict/Absolute Liability

This category of mens rea arises where there is an absolute prohibition against doing

something, and where this act is committed the person is subject to punishment

irrespective of intention, recklessness or negligence. In some cases an offence of strict

liability may afford the Accused with a defence of reasonable belief/mistake. For

example the law under the Criminal Law Amendment Act 1935, which made it an
offence for a man to have unlawful carnal knowledge with a girl under the age of 17, was

recently struck down by the Supreme Court in the “CC Case” where it failed to afford the

Applicant with a defence of ‘honest mistake’.

Coincidence of Actus Reus and Mens Rea

In order to secure a criminal conviction the prosecution must not only establish the

elements of the crime but also prove that the two elements coincided at the time of the

crime’s commission. Thus the Defendant must have the requisite mens rea or mental

element at the time he is committing the actus reus or physical element. A number of

approaches have been formulated to deal with situations where this condition raises

difficulties

a) Continuing Act Approach:

In Fagan v Metropolitan Police Commissioner (1968) the Defendant drove his car over a

police officer’s foot and refused to remove it when asked. He was subsequently charged

with assault but argued that he could not be convicted on the basis that at the time he

drove over the officer’s foot (i.e. actus reus) he lacked the necessary mens rea for the

offence. That mental element he claimed arose afterwards and at a time when the

physical act of the crime had already been committed. In other words the two elements

did not coincide. To get around this difficulty the Court held that the entire incident was

to be viewed as one continuing act or transaction which contained both elements. See

also: Kaitamaki v R (1985).

(b) Duty Approach:

Alternatively the Court can hold that the Defendant in commencing the unlawful

conduct has a duty to take action to remedy his actions – See: R v Miller (1983

c) Supposed Corpse Rule:

In some cases it may be open to the Defendant to argue that he should be acquitted

where the true cause of the victim’s death was not actually attributable to his actions. In

Thabo Meli v R (1954) the Defendants sought to escape conviction where having

assaulted the victim and believing him to be dead, they threw his body over a cliff. It

transpired that the victim was still alive at the time and died later from exposure. The
Defendant’s contention that the prosecution had failed to prove the coincidence of

actus reus and mens rea failed where the Court held that both acts were merely part of

the one ‘single transaction’.

5. CRIMES OF STRICT LIABILITY

The concept of strict liability refers to a form of minimum culpability. Crimes of strict

liability are offences where one element of the actus reus does not require a

corresponding element of the mens rea. For example, committing a sexual act with a

child under the age of 17 contrary to the Criminal Law (Sexual Offences) Act 2006 does

not require proof of mens rea. However, in order to complete a crime of strict liability

the actus reus must be the result of voluntary conduct on the part of the accused. In

addition, offences of strict liability are strict, but they are not absolute and the general

defences that are available to a person charged with any other criminal offence are

available equally on a charge of any offence of strict liability

Generally crimes classified as strictly liable fall under the following headings:

A. Where the act is not criminal in the real sense of the word, but which was prohibited

by a penalty based on the public interest (on the basis that the conduct involves a

danger to public health, safety or morals). The principal characteristics of these

offences are that they are regulatory in nature and are not really criminal but quasi

criminal.

B. Public nuisance

C. Proceedings that are criminal in form but are really a summary (criminal) means of

enforcing a civil right

In common law only two offences are classified as crimes of strict liability, namely:

•Public nuisance

•Criminal libel

All other strict liability offences have been created by statute. Examples include:
•The Misuse of Drugs Acts

•The Road Traffic Acts

•Offences Against the State Acts

•Revenue Statutes
•Food quality Statutes

•Product Liability legislation

•Industrial Safety & Standards legislation

•Consumer Protection legislation

•Environmental Protection legislation

In R v Prince (1875) the Defendant was convicted for an offence under the Offences

Against the Person Act, 1861 where he took an unmarried girl (under the age of 16) out

of the possession of her parents and against their will. This action was strictly prohibited

under the Act and the Defendant found guilty irrespective of his mistaken belief that she

was over 18. In Maguire v Shannon Regional Fisheries Board (1994) the Court held that

the offence of causing deleterious matter to fall into a river under the Fisheries

Consolidation Act 1959 was an offence of strict liability. The Act stated that any person

who “throws, empties, permits or causes to fall into any waters any deleterious matter,

will, unless the act is done in accordance with a licence granted by the Minister, be guilty

of an offence