LECTURE 1

CRIMINAL LIABILITY

The basic principles of criminal liability that you are expected to

understand and to apply, according to your syllabus, are:

(i) the actus reus of a crime, including the age of criminal

responsibility, and the status of the offender;
(ii) the mens rea of a crime, including specific intention,
recklessness, negligence, strict liability, and cases of
transferred malice;
(iii) the requirement that both the actus reus and mens rea must
generally coincide for there to be a crime;
(iv) the question of the ‘burden of proof’; and
(v) the test of the ‘standard of proof’.
Let us begin by establishing what is meant by criminal liability.
There are two elements of a crime. These two elements are crucial in
determining when criminal liability exists in a particular case. The first of
these is the actus reus (Latin for ‘guilty act’). The second is the mens rea
(Latin for ‘guilty mind’). The event or state of affairs which is forbidden is
called the actus reus, and the guilty state of mind is called the mens rea.
Let us look at the definitions of each:

(i) The actus reus refers to the conduct of the accused, the
illegal activity itself. It includes acts or omissions, consequences
and surrounding circumstances.

(ii) The mens rea refers to the accused's state of mind, the
guilty mind. It consists of different grades of purposefulness,
depending on the requirements of the particular offence. In one
offence it might be his deliberate intention; in others all that may
be required is recklessness, or gross negligence or mere
knowledge. The prosecution must be able to show by evidence
that the accused's ‘defined state of mind’ caused the event.

Where intent is a necessary part of the mens rea, how do you

show that someone ‘intentionally’ committed an act? It is not possible to
do so by direct evidence. The prosecution cannot get into the accused’s
head to demonstrate to the jury what was in the head. Evidence may be
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 not only direct, but indirect, eg, by asking the jury to draw an ‘inference’.
If an accused knowingly and deliberately stuck a knife into the victim, the
jury can be asked to infer that he did so intentionally. That is how intent is
proved.

It is a general principle of criminal law that a person may not be

convicted of a crime unless the prosecution has proven beyond
reasonable doubt both (a) that he has caused a certain state of affairs
which is forbidden by criminal law, and (b) that he had at the time a
defined state of mind in relation to the causing of the event or the
existence of the state of affairs. Both of these two elements must coexist
or coincide before one can be deemed guilty of a crime. That means that
they must exist at the same time.

(1) The actus reus

Look at the following cases, which illustrate the actus reus. You are not
expected to know all these cases by heart, only to read and understand
how the principle above was applied. Let us look first at R v Deller
(1952).

R v Deller (1952)
The defendant was charged with the offence of ‘obtaining money by false pretences’. He
sold his car to the complainant, representing, inter alia, that it was free from
encumbrances. To Deller's knowledge it was not free from encumbrances as he had
given a bill of sale to a lender against the car. A bill of sale is a mortgage document
which is required by the Bills of Sale Act to be registered in the Registry of Bills of Sale.
The actus reus of the offence was the existence of a valid lien or encumbrance such as a
bill of sale on the title to the car. Deller, however, did not realise that the bill of sale was
null and void as the lender had not registered it. Deller thought he was lying, but it turned
out that his representation to the complainant that there was no encumbrance was true,
as the bill of sale was void at law. Deller was convicted of the offence of obtaining money
by false pretences. He appealed to the Court of Appeal.
Held: his conviction was quashed. Even though he had the necessary mens rea, the
prosecution could not establish the actus reus.

As we shall see when we do murder and manslaughter, it was a

part of the actus reus of the crimes of both murder and manslaughter at
common law that the death must occur within a year and a day after the
injury inflicted. At common law, if the death occurred more than one year
and a day after the injury, the accused could not be guilty of murder or
manslaughter. See R v Dyson (1908).

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R v Dyson (1908)
In November 1906 and again in December 1907, the accused inflicted injuries on a child
who died on March 5, 1908. Only the first injury was serious enough to have caused the
death. The date of death was more than one year and one day after the first injury.
Dyson was indicted for manslaughter. He was convicted by the jury, and sentenced by
the judge. He appealed.
Held, his conviction must be quashed as the prosecution had not been able to prove the
actus reus. The child's death had occurred at a time longer than that required for Dyson
to be found guilty of manslaughter. There was no actus reus of the crime of
manslaughter.

Elements of the actus reus: In our definition of the actus reus,

there were several components. To refresh your memory these were: the
actus reus (conduct) includes (i) acts, (ii) omissions, (iii) consequences,
and (iv) surrounding circumstances (states of affairs). Let us look at
these components.

(i) Acts: An act may be an actus reus provided the act is proven
to have been the act of the accused. It is possible for some action of
mine to lead to a result forbidden by the criminal law, but yet that action is
not ‘my act’ in a legal sense. To be my act it must be proven to be a
voluntary, conscious movement by me of my muscles. If it is not truly an
act of the accused he may have available to him the defence of
‘automatism’.

Automatism: The defence of automatism is available when the

act was done while unconscious, or as a result of spasms, reflex actions,
and convulsions. In such an instance, the commission of the act would
not have been a result of the accused’s will. Automatism is of two types,
namely insane and non-insane automatism. Insane automatism arises
from some internal factor, while non-insane automatism is external.

The leading authority for non-insane automatism caused by an

external factor for is Hill v Baxter (1958).

Hill v Baxter (1958)

The accused was stung by bees while driving. As a result, he lost control of the vehicle,
which hit and killed the deceased. He was charged with causing the death by reckless
driving.
Held, there was no actus reus on the accused's part resulting in the deceased's death.
He had the benefit of the defence of automatism.

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 The case of R v Hennessy (1989) illustrates the defence of
automatism failing because it was neither non-insane nor insane
automatism.

R v Hennessy (1989)
The accused was charged with driving while disqualified. He claimed that he had not
taken his dosage of insulin because of stress, anxiety and depression, and that, at the
time of the act, he was suffering from hyperglycaemia and was in a state of automatism.
The trial judge found that his defence was insanity within the M’Naghten Rules. The
accused was convicted and appealed on the ground that the judge was wrong and his
depression and marital troubles were important factors that overrode his diabetes.
Held, his appeal would be dismissed, relying on such cases as Hill v Baxter and R v
Sullivan.
Compare R v Quick and Paddison (1973) which was another case
of hyperglycaemia which this time succeeded.

R v Quick and Paddison (1973)

The appellants were both psychiatric nurses accused of assaulting a patient. Quick
presented medical evidence that he was a diabetic. He claimed that at the time of the
alleged assault, he was suffering from hyperglycaemia and was unaware of his act. He
had taken his insulin, a small breakfast, some whisky, some rum, and no lunch. The
judge rejected his defence of automatism, holding that insanity was the appropriate
defence. He was convicted, as was Paddison as his abettor. Both appealed against
conviction and were successful.
Held, the defence of automatism ought to have been left to the jury so that the questions
of fact could have been probed. In the words of the Court of Appeal:
Quick’s alleged mental condition, if it ever existed, was not caused by his diabetes
but by his use of insulin prescribed by his doctor. Such malfunctioning of the mind
as there was, was caused by an external factor and not by a bodily disorder in the
nature of a disease which disturbed the working of his mind.
The leading case on insane automatism is Bratty v AG for
Northern Ireland (1963) where the defence of automatism failed.

Bratty v AG for Northern Ireland (1963)

The defendant took off a girl’s stocking and strangled her with it. He told the police that a
“sort of blackness” came over him and that “I did not know what I was doing. I didn’t
realise anything.” There was medical evidence that he was suffering from ‘psychomotor
epilepsy’ which might have prevented him from knowing the nature and quality of his act.
He was charged with murder and pleaded the defences of automatism and insanity, but
the jury rejected them and convicted him. He appealed.
Held, his condition was evidence for the defence of insanity, not automatism, and his
conviction was set aside. Lord Denning indicated that the defence of automatism has
narrow limits as a defence. It is confined to acts done while unconscious and due to
spasms, reflex actions, and convulsions. As a result of the finding of insanity, the
defendant was committed to a mental asylum for the criminally insane instead of being

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released.
The dictum in Bratty was approved in R v Burgess (1991) where
the defence of automatism succeeded.

R v Burgess (1991)
The accused suffered from apoplexy, an illness which causes involuntary spasms.
While under an attack of the illness the accused wounded the victim. He was charged
with the offence of wounding.
Held, the accused's action was involuntary, he had the benefit of the defence of
automatism, and he was not guilty of the offence.

(ii) Omissions: Generally, my omission to act which results in

some injury or damage to another person does not impose any liability on
me at common law. If I see my neighbour about to be injured, and I do
not take action to help her, I have committed no offence at law. There
are, however, some exceptional instances both under statute and at
common law where an omission may amount to an actus reus. This may
happen in cases of (a) a statutory duty imposed; (b) contractual duty; (c)
by virtue of holding a public office; (d) undertaking to care for another
person; (e) relationship; and (f) where there is a duty to minimise the
consequences of one's own act. Let us look at them in turn.

(a) Statutory duty: An omission amounting to a crime may arise

where a statute imposes a positive duty to act. So, under the Road Traffic
Act it is an obligation of a person involved in a traffic accident to report the
accident to the police station. Any driver not complying with this duty to
act commits an offence. Similarly, under the Customs Duties Act there is
an obligation to pay customs duties on goods imported. Anyone failing to
declare purchases of dutiable items commits the offence of a breach of a
statutory duty to declare the goods.

(b) Contractual duty: One’s job may impose a duty to act. This
is demonstrated by the case of R v Pittwood (1902).

R v Pittwood (1902)
A railway keeper was not paying attention and failed to close the gate at a railway
crossing before the train came. This resulted in the death of the driver of a vehicle which
attempted to cross the railway tracks.
Held, Pittwood was guilty of manslaughter. He owed the public a duty to act arising out
of his contract of employment. His inaction amounted to a breach of his contractual
duty, as a consequence of which a life had been lost.
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 (c) By virtue of holding an office, or professional
responsibility: If one has a professional responsibility to act, then an
omission to do so resulting in loss or damage may well result in criminal
liability. See the leading case of R v Adomako (1995).

R v Adomako (1995)
The accused anaesthetist failed to perform on time a procedure during surgery, resulting
in the patient’s death. He had not noticed the presence of a disconnected endotracheal
tube, even though an alarm went off after the disconnection, which should have alerted
him.
Held, such recklessness on the part of the accused in ignoring the alarm and failing to
discover the tube, resulting in the death of the patient, amounted to the crime of
manslaughter.

(d) Undertaking to care for another: Where one undertakes to

care for an aged, infirm, physically or mentally challenged person, one
may be found liable for failing to discharge that undertaking. See the
leading case of R v Stone and Dobinson (1997).

R v Stone and Dobinson (1997)

The parties, an unmarried couple, had an elderly relative (the sister of one of them) living
with them. She suffered from anorexia nervosa. She later became incapable of caring
for herself. She refused to see a doctor or to leave her room. The first defendant, Stone,
was nearly blind and of low intelligence. Dobinson was described as ineffectual and
inadequate. They made some effort to help her by trying to trace her doctor and by
washing and feeding her. They failed to make contact with the doctor. She subsequently
died. The couple were convicted of manslaughter and appealed.
Held, the couple was under a duty at common law to summon medical help for the victim
if they could not care for her themselves. The jury was entitled from the evidence to find
that a duty of care had been assumed by them, and that they had failed to discharge this
duty. They had shown indifference to an obvious risk. Their appreciation of the risk,
coupled with a determination nevertheless to run it, was reckless. Their appeals were
dismissed and their conviction for manslaughter upheld.

(e) By virtue of relationship: Parents or persons in loco parentis

have a duty to care for their child. See R v Gibbins & Proctor (1918).

R v Gibbins & Proctor (1918)

A father and his girlfriend neglected to feed the father's child, as a result of which the
child died of starvation.
Held, they were guilty of murder.

(f) Duty to minimise one’s own act: Where the actions of the
defendant lead to a state of affairs which he should realise might cause

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 harm, and he does nothing to avert it, the defendant may incur liability
even if he acted innocently. See the leading case of R v Miller (1983).

R v Miller (1983)
The defendant went to sleep with a lighted cigarette in his hand. He awoke to find his
mattress smouldering. He did nothing about it, but moved into an adjoining room and
went back to sleep. The house caught fire, and he was charged with arson.
Held, the defendant was guilty of arson. He should have realised that if he did not put
out the fire, which he had innocently caused, damage would ensue. He had a duty to
make an effort to put the fire out.

(iii) Consequences of one’s action: The consequence of one's

action is a part of the actus reus. See R v Shivpuri (1987).

R v Shivpuri (1987)
The defendant was convicted of the offence of ‘attempting to be knowingly involved in
dealing with a prohibited drug’. He had been arrested by customs officials while in
possession of a suitcase. The suitcase contained material, which he said he knew to be
a prohibited drug. It turned out that he had been tricked, and the substance was not a
prohibited drug but a type of tobacco. His defence was that he could not be guilty of an
offence as the substance was not a prohibited drug.
Held, by attempting to bring about an illegal consequence, the defendant was guilty of
the criminal offence of ‘attempting to be knowingly involved in dealing with a prohibited
drug’.

Another instance when the consequences of the defendant's

action can lead to criminal liability occurs where that action results in the
injury or death of another who takes evasive action to save himself from
the defendant. So, where a victim, fearing her attacker, jumps out of a
window and is injured, the defendant can be found guilty of causing her
injury.

In these instances, where the accused does not directly inflict the
injury, but his actions indirectly cause the injury, there are two criteria
which must be fulfilled. The first criterion is that the jury must be satisfied
that a reasonable and responsible person in the assailant’s position could
have foreseen the consequences of his action. The second criterion,
applicable only in fatal cases, is that the unlawful act was such as to raise
in a sober and reasonable person a recognition that the person attacked
would suffer harm, albeit not serious harm.

What if it is a third party who is injured? The rule is that if a third

party reacts reasonably to an accused's threat to another person, the
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 accused will be liable for the consequence. An example of this was seen
in R v Paget and Pemberton (1983).

R v Paget and Pemberton (1983)

While armed with a shotgun, the accused held a pregnant girl hostage using her as a
shield while he fired at the police. The police fired back, accidentally killing the girl. The
accused was charged with the girl’s manslaughter and was convicted. He appealed on
the ground that it was the police action, a novus actus interveniens,3 and not his action
which resulted in the girl's death.
Held, he was rightly convicted.

(iv) Surrounding circumstances or state of affairs: We look

now at what role the surrounding circumstances can play in causing an
accused person to be criminally liable. In these cases, the accused's
willed action is not the issue. The existence of the state of affairs or the
surrounding circumstances is enough. These are usually statutory
offences. So, for example, in certain cases, it is sufficient that the
accused is ‘found in possession’ or is ‘in possession’. Under section 274
of the Criminal Code of Anguilla,4 it is an offence to be ‘found in
possession of an item which is reasonably suspected of being stolen
without a satisfactory explanation’ of how he came by it. Note that there
is no need to prove that he stole the item. It is the circumstance of his
being in possession of it that is the offence. 5

Such crimes which do not involve any intent have been known to
result in unreasonable convictions. So, in R v Larsonneur (1933), the
accused had been refused permission to enter the United Kingdom. He
was brought to the UK by the police. He was found to have been rightly

3
Further explained in Lecture 2 where we deal with the offence of murder.
4
Note that section numbers of the Criminal Code in these lectures are based on the
2014 Revised Edition of the Laws of Anguilla. These section numbers may change,
but, so long as you point out that your answer is based on the 2014 Edition, your
citation will not be incorrect. However, it is a good exercise for you to obtain an up-
to-date edition of the Criminal Code and alter the section numbers in your lecture
notes and essays accordingly, ensuring you cite the edition you are using.
5
Possession of thing reasonably suspected of being stolen
274. Any person who is charged with having in his possession in any place, or
conveying in any manner, anything which is reasonably suspected of being stolen or
unlawfully obtained and who does not give an account to the satisfaction of the court
as to how he came by that thing, commits an offence and is liable on conviction to
imprisonment for 6 months or to a fine of $500.
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convicted of the offence of ‘being found’ in the United Kingdom since the
offence did not involve any intent.

See also Winzar v Chief Constable of Kent (1983). There, the

accused was taken to a hospital on a stretcher. Being found not to be ill
but to be drunk, he was told to leave. He was later seen slumped in a
chair in the corridor and was apprehended by the police and taken to a
car stationed outside the hospital. He was charged and convicted for
‘being found drunk’ in the highway where the police had brought him.
(Both this case and Larsonneur have been criticised by Smith and Hogan
as ‘peculiarly offensive’ because of the involvement of the police).

(2) Mens rea

Elements of the mens rea: We have already examined how the actus
reus affects criminal liability. We shall now look at the mens rea in much
the same way.

Firstly, let us revise our definition of the mens rea. We said the
mens rea refers to the accused's state of mind. This includes specific
intention, as well as recklessness, gross negligence and knowledge,
depending on the required ingredient for the particular offence. For an
accused to be guilty of an offence, the prosecution must prove that the
accused's ‘defined state of mind’ must have ‘caused the event’.

We shall be looking at the following elements of the mens rea: (a)

specific intention; (b) recklessness; (c) negligence; and (d) blameless
inadvertence. The question is, in a particular crime, does the prosecution
have to prove a specific intention, or will recklessness, negligence, or
even blameless inadvertence suffice for the commission of the crime?

(a) Specific intention and the mens rea: We refer to some

crimes as ‘crimes of specific intent’. These include murder, theft, burglary,
and wounding with intent. The specific intent for murder is ‘with malice
aforethought’. The specific intent for theft is ‘the intention of permanently
depriving the owner’ of the item in question. The specific intent of the
crime of wounding with intent is ‘the intention to cause a wound’. By the
nature of these crimes, the accused apparently sets out to do something
and takes steps to do it, achieving the result or the probable

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consequences. For example, A intends to shoot to kill B and fires a gun
in B's direction, either killing or wounding him. Either consequence of
death or wounding can arise from that action of shooting a gun, and A will
be regarded as having the mens rea of the crime. This is also referred to
as ‘direct intent’. If the prosecution cannot satisfy the jury that the
accused had the particular intent required by the offence, eg, he may only
have been careless or negligent, then the accused is not guilty.

We must distinguish crimes requiring a 'specific intent' from crimes

of 'basic intent'. Crimes of assault and battery are crimes of basic intent,
which can be committed either intentionally or merely by reckless
behaviour. As we shall see when we come to look at defences, one
important distinction between crimes of specific intent, eg, intent to do
grievous bodily harm, and crimes of general intent, eg, assault
occasioning actual bodily harm, is that on the more serious charge, the
defendant may be able to introduce evidence of intoxication to deny that
he had the necessary mens rea.6 Such a defence would not be available
in a crime of basic intent.

It is possible for a person to be convicted of a crime requiring a

specific intent even if only indirectly. These are said to be cases of
‘oblique intent’. Say the defendant intends only to frighten his victim, and
approaches him with a gun. The victim sees the defendant approach him
and screams before trying to wrest the gun from him. The gun goes off,
injuring the victim. The defendant is charged with the offence of
‘wounding with intent’. He did not have the specific intent to wound, yet,
he can be convicted of the offence. He is said to have oblique intent. He
should have foreseen that the consequences of his actions might be just
the injury that occurred. Whether or not he actually had the specific
intent, he will be deemed to have had it.

The specific intent required for the jury to be able to imply the
mens rea of malice aforethought in a case of murder has been evolving.
The traditional understanding of what is required for an accused to be
said to foresee the likelihood of death was explained in the case of Hyam
v DPP (1975).

6
We deal with the defence of intoxication in Lecture 6.
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Hyam v DPP (1975)
Mrs Brown was the current lover of a Mr Jones of whom the appellant was the discarded,
or partly discarded, mistress. The appellant set fire to Mrs Brown’s dwelling-house by
pouring a half gallon of petrol through the letter box and igniting it with a newspaper and
a match. Asleep in the home were Mrs Brown and her three children. Mrs Brown and
one child escaped alive through a window. Two of the children died as a result of
asphyxia by the fumes generated by the fire. The appellant’s motive was jealousy of Mrs
Brown. Her account of the fire was that she started it only with the intention of frightening
Mrs Brown into leaving the neighbourhood, and she did not intend to cause death or
grievous bodily harm, the specific intent of the charge of murder which she faced. The
trial judge directed the jury that the prosecution must prove, beyond all reasonable doubt,
that the accused intended to kill or to do serious bodily harm to Mrs Brown, the mother of
the deceased. If the jury was satisfied that when the accused set fire to the house she
knew that it was highly probable that this would cause death or serious bodily harm then
the prosecution would have established the necessary intent. It did not matter if her
motive was to frighten Mrs Brown. The accused was convicted of murder and appealed.
The Court of Appeal dismissed the appeal and she appealed to the House of Lords. Her
submission was that it was not sufficient to prove that when doing the act which led to the
death of another she knew that it was highly probable that that act would result in death
or serious bodily injury. A consequence foreseen as highly probable is not the same as a
consequence which is intended.
Held, the appeal was dismissed. It was confirmed that the mens rea of murder is ‘malice
aforethought express or implied’. Express malice means ‘with intent to kill’, while implied
malice means ‘with intent to do serious bodily harm’. Even if foresight of the probable
consequences is not the same thing as intent, it can, nevertheless, be an alternative type
of malice aforethought. Malice aforethought is a state of mind in which there is
knowledge that the act which causes death will probably cause the death of or grievous
bodily harm to some person, although such knowledge is accompanied by indifference
whether death or grievous bodily harm is caused, or by a wish that it may not be caused.
If a man in full knowledge of the danger involved, and without lawful excuse, deliberately
does that which exposes a victim to the risk of probable serious harm or death, and the
victim dies, the perpetrator of the crime is guilty of murder and not manslaughter to the
same extent as if he had actually intended the consequence to follow.
A trilogy of leading cases in 1985 and 1986 examined the
questions that a jury must consider to determine whether the accused
could have foreseen that consequence from which his intention can be
established so that he can be found guilty of murder. The cases are R v
Moloney (1985); R v Hancock and Shankland (1986); and R v Nedrick
(1986).

R v Moloney (1985)
The appellant shot his stepfather with a shotgun in the early hours of the morning. Both
the appellant and the victim were very drunk and started an argument as to which one
was faster at loading and shooting a shotgun. The appellant claimed that he did not
intend to injure his stepfather. The trial judge directed the jury that in law a man intends
the consequence of his act either where he desires it to happen; or where he foresees
that it will probably happen, whether or not he desires it. An appeal against conviction of

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murder was dismissed by the Court of Appeal. On appeal to the House of Lords the
conviction was quashed, and a conviction for manslaughter substituted.
Held, the jury did not need to be directed on the meaning of intention, but that in cases
where some reference to foresight of consequences was necessary, it must be made
clear that such foresight is not equivalent to intention, but is evidence from which
intention may be inferred. A jury would be entitled to infer intention in a case where the
consequence was ‘natural’ in the sense that, “In the ordinary course of events a certain
act will lead to a certain consequence unless something unexpected supervenes to
prevent it.” Murder is a crime of 'specific intent', and the evidence of the defendant’s
intoxication was relevant. It was up to the jury, considering all the evidence including the
defendant's drunkenness, to decide whether he intended to kill or cause grievous bodily
harm to his step-father. The fact of the drunkenness was crucial because otherwise it
would have been unbelievable that a sober man shooting a gun a few feet away from his
step-father did not intend to seriously harm him. However, taking into account the
drunkenness, the defendant's story becomes believable and it would be possible for a
jury to decide that the defendant did not have the necessary intention.

R v Hancock and Shankland (1986)

Two striking miners wished to teach a lesson to a miner who was breaking the strike and
going to work. They pushed heavy concrete blocks from the parapet of a bridge which
struck a taxi taking the miner to work. It killed the taxi driver. They said they intended to
push the blocks on to the middle lane, not the inside lane in which the taxi was driving,
and that they intended to frighten the working miner and to prevent him from going to
work, and not to hurt anyone. At their trial for murder the judge carefully followed the
Moloney ‘guidelines’, and directed the jury that they might convict if the injury was the
natural consequence of the accused’s action. The appellants appealed.
Held, the conviction must be quashed. The guidelines were defective. The jury must be
directed that they can only convict of murder if the injury was a direct consequence and
a moral certainty or overwhelming probability of the accused’s action.

Nedrick v R (1986)
The defendant threatened to burn out the virtual complainant against whom he had a
grudge. As in Hyam’s case he poured kerosene through the letter box of her house and
set it alight. Her child died and Nedrick was convicted of murder. On appeal, the court
held that when determining whether the defendant had the necessary intent, it may be
helpful for the jury to ask themselves two questions: (1) How probable was the
consequence which resulted from the act? (2) Did he foresee that consequence? If he
did not appreciate that death or serious bodily harm was likely to result from his act, he
cannot have intended to bring it about. If the jury are satisfied that he recognised that
death or GBH would be virtually certain, then that is a fact from which they may find it
easy to infer an intention to kill or do GBH, even though he may not have desired to
achieve that result.
Held: his conviction was quashed and a verdict of guilty of manslaughter substituted.

The resulting ‘Nedrick direction’ where the judge should use the phrase
“virtually certain” in directing the jury, has subsequently received wide
endorsement by the courts.

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 (b) Recklessness and the mens rea: Let us look at another
issue concerning the mens rea. The question for some offences, such as
‘reckless driving’ under the Vehicles and Road Traffic Act, is, was the
accused reckless in doing as he did?

Recklessness arises where the defendant, not intending to cause

a certain harm, takes an unjustifiable risk in causing it to occur. Emphasis
is on the word ‘unjustifiable’. There are two types of recklessness, (i)
subjective, and (ii) objective.

(i) Subjective recklessness

An accused is subjectively reckless if he foresees that the particular kind

of harm might be done and yet goes on to take the risk of it. It is neither
limited to, nor does it require, any ill-will towards the person injured. See
the leading case of R v Cunningham (1957).

R v Cunningham (1957)
The defendant tore a gas meter from the wall of the cellar of an unoccupied house, in
order to steal money from it. He left the gas gushing out, with the result that it seeped
into a neighbouring house endangering the virtual complainant’s life. Cunningham was
convicted of ‘maliciously administering a noxious thing so as to endanger life’. The judge
at first instance misdirected the jury that ‘malicious’ meant ‘wicked’. He appealed to the
Court of Appeal.
Held, his conviction must be quashed on the basis of the misdirection. The Court laid
down two essential elements to determine subjective recklessness:
(a) The accused must have demonstrated an actual intention to do the
particular kind of harm that in fact was done; or
(b) the accused must have demonstrated recklessness as to whether such
harm should occur or not.

(ii) Objective recklessness

The test for objective recklessness is, would a reasonable man have
acted as the accused did? An accused is objectively reckless if a
reasonable man would not have done what he did. Here, the
consideration of the ‘reasonable man’ is crucial. See the leading case of
R v Caldwell (1982).

R v Caldwell (1982)
The accused, who had a grievance against the victim, the proprietor of a residential
hotel, got himself very drunk and decided to set the hotel on fire. Some ten guests were
resident in the hotel at the time. The fire was discovered and extinguished before serious

15
harm was done. The accused was charged with the offence of ‘recklessly endangering
human life’. Lord Diplock laid down two tests in determining whether the accused had
been objectively reckless. The accused is objectively reckless when he
(a) does an act which in fact creates an obvious risk that property would be
destroyed or damaged; and
(b) the accused, when he does the act either has not given any thought to the
possibility of there being any such risk, or has recognised that there was some
risk involved and has nevertheless gone on to do it.
In Anguilla, the offence of recklessly endangering human live is now
found in section 218 of the Criminal Code.7 The Caldwell test is still good
law, and is applicable to the statutory offence in Anguilla.

Objective recklessness does not apply to offences against the

person as a person will not be guilty of such an offence unless he foresaw
that he would cause harm. The mens rea of assault is intention or
subjective recklessness as to the creation of an apprehension of unlawful
force. The mens rea of battery is intentionally or recklessly using force
against someone. See, for example, the cases of R v Spratt (1991), R v
Parmenter (1992) and R v Savage (1991).

R v Spratt (1991)
The accused had fired several pellets from an air pistol from his flat into the square
below. A young girt playing in the square was injured by two pellets, which hit her.
Spratt's explanation was that he was aiming at a sign on a rubbish chute and he did not
know anyone was there, and that he would not have fired the pistol had he known
someone was there. He pleaded guilty at his trial to assault occasioning actual bodily
harm, his counsel saying that it was based on recklessness. On appeal against
sentence, doubt was raised about the correctness of the conviction. The Court of Appeal

7
See section 218 of the Anguilla Criminal Code.
Reckless and negligent acts
218. Any person who, in any manner so rash or negligent as to endanger human life
or safety—
(a) drives or rides in any public place;
(b) navigates or takes part in the navigation or working of any vessel or aircraft;
(c) does any act with fire or any combustible matter or omits to take precautions
against any probable danger from any fire or any combustible matter in his
possession or control;
(d) omits to take precautions against any probable danger from any animal in his
control or possession;
(e) dispenses, supplies, sells, administers or gives away any medicine or
poisonous or dangerous matter;
(f) does any act with respect to, or omits to take proper precautions against, any
probable danger from any machinery of which he is solely or partly in charge; or
(g) does any act with respect to, or omits to take proper precautions against, any
probable danger from any explosive or firearm in his possession or control;
commits an offence and is liable on conviction to imprisonment for 2 years.
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allowed him to appeal instead against his conviction.
Held, he was not guilty of the offence unless he foresaw that he would cause actual
bodily harm.

R v Parmenter (1992)
The accused had injured his child by rough handling. He was convicted of ‘unlawfully
and maliciously causing grievous bodily harm’ to his infant son over a period of time. In
his defence, Parmenter said that he was not aware that his manner of handling the child
would have resulted in the injuries caused.
On appeal, he partially succeeded, as the House of Lords substituted a lesser charge.

R v Savage (1991)
Mrs Savage, who had a grudge against her husband's former girlfriend, attempted to
throw beer on her. This was a deliberate assault. The glass fell from the defendant’s
hand and the virtual complainant's wrist was cut by broken glass. Mrs Savage was
charged with ‘unlawfully and maliciously wounding’. In her evidence she denied that she
had let the glass slip purposely. At first instance, the jury was directed that her deliberate
action of throwing the beer on the virtual complainant constituted an assault and that if
she unintentionally let go of the glass so that it caused the wound, she was guilty.
The Court of Appeal quashed her conviction in relation to the wound, holding that she
would be guilty only if she foresaw that some physical harm would result from her act.
The Court substituted a conviction for the lesser offence of ‘assault occasioning actual
bodily harm’ for which no specific intent is required.

In the above cases, the House of Lords8 held that it is unnecessary that
the accused should either have intended or have foreseen that his
unlawful act might cause physical harm of the gravity described in the Act,
that is, a wound or serious physical injury. For subjective recklessness,
he must either have intended the particular harm or have foreseen that
some physical harm to some person, albeit of a minor character might
result, and yet gone on to take the risk.

(c) Crimes of negligence

Some offences require neither intent nor recklessness, but mere

negligence. The question is when is mere negligence sufficient for the
jury to find that the accused had the necessary mens rea. 'Negligence' in
this sense connotes 'gross negligence'. The issue that is put to the jury is
whether a reasonable man would have acted as the accused did.

8
This was the final court of appeal in England and Wales. It no longer exists as it was
replaced under the Constitutional Reform Act, 2005, by the Supreme Court of the
United Kingdom which began its work on 1 October 2009.
17
 Cases involving manslaughter are usually those considered under
this head, as in R v Adomako (1994), (the case of the negligent
anaesthetist). The anaesthetist in that case was convicted of
manslaughter on the basis that his conduct had fallen way below that of a
reasonable man (meaning a reasonable anaesthetist). Another such
offence is ‘careless driving’ which requires proof only of negligence.

(d) Blameless inadvertence

We come now to the fourth important element of the mens rea, when an
accused can be found guilty of an offence although he appears to have
been blamelessly inadvertent, ie, he was not aware he was committing an
offence. In these offences the accused need not have any intent, nor be
either reckless or careless. There are situations when a person may not
foresee that his actions have criminal consequences, but where he can
still be guilty of an offence. There are, for example, situations where a
statute imposes a duty, which a person may not be aware of, nor realise
that his actions are in breach of the statute. In these cases, the accused
may reasonably fail to foresee that he is committing an offence, and yet
be guilty of it.

There are two limbs to this head, namely crimes of (i) ‘strict
liability’, and (ii) ‘transferred malice’.

(i) Crimes of strict Iiability

Crimes of strict liability do not require mens rea in the same sense that
other crimes do. These offences are usually creatures of statute. They
are sometimes referred to as crimes of ‘absolute liability’. The most
important examples of these offences involve (a) dangerous drugs; (b)
pollution; and (c) spirit licence violations. Violations of road traffic
legislation, eg, ‘parking in a prohibited zone’; dangerous drugs offences,
eg, ‘being in possession of cannabis’; and violations of spirit licences, eg,
‘selling alcohol to a minor’; are among the most common occurrences. If
you park in an area which you do not realize is a no-parking area, you
commit an offence. If prohibited drugs are found in your car being there
without your knowledge, but there is no explanation how they got there,
you are guilty of the serious criminal offence of possession. If a liquor

18
 shop owner sells alcohol to a person under age but does not appreciate
the youth of the customer, an offence is committed.

(a) Dangerous drugs: As you are no doubt aware, the issue of

dangerous drugs is one of concern as traffickers present serious
challenges to law enforcement personnel. All our countries in the
Commonwealth Caribbean have legislation dealing with the nemesis of
dangerous drugs. In dangerous drugs cases, the offences are usually
ones of strict liability. So, once you are found in possession of a
prohibited drug, it matters not what your knowledge or state of mind was,
you will be strictly liable for the offence. If a person is driving a car in
which the police find cannabis, he will be found guilty of the offence of
possession even though he had no idea that cannabis was in the vehicle.

See the two (2) interesting and contrasting cases of Sweet v

Parsley (1970), and R v McNamara (1988).

Sweet v Parsley (1970)

The defendant, a teacher, rented rooms in a farmhouse of which she was a tenant to sub-
tenants, retaining a room for herself. The sub-tenants smoked cannabis on the premises.
The defendant was convicted of the offence of ‘being concerned in the management of
premises used for the purpose of smoking cannabis’, even though it was proved that she
had no knowledge of it. The section does not appear to require any mens rea. It is an
offence of strict liability.
The House of Lords, no doubt reacting to public uproar over the unfairness of her
prosecution, quashed her conviction, based on the principle that the statutory provision
required some element of mens rea.

R v McNamara (1988)
The defendant was apprehended for being in possession of a box which he was carrying
on the back of his motor cycle. The box contained cannabis resin. He was charged
under a relevant statute (the Misuse of Drugs Act) with the offence of possession. There
is no mental element in the offence. His explanation was that he was delivering the box
for a man, whose name he refused to give, and that he thought the box contained
pornographic material or private videos. The trial judge had directed the jury to convict if
you are satisfied so that you are sure that he had possession of the contents of
the cardboard box, and knew that the box contained something, unless on the
balance of probabilities he has proved that he neither knew, suspected, nor had
reason to suspect the contents of the box was any controlled drug.
The defendant was convicted and appealed to the Court of Appeal.
Held, the direction was correct, and the accused's appeal against conviction was
dismissed.

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 (b) Pollution: Another growing situation of strict liability is that
involving the protection of the environment. Public policy is an important
consideration in these offences of strict liability. As a matter of public
policy, parliament makes pollution cases offences of strict liability. Once
you pollute the environment, parliament does not want to know what your
state of mind was. Pollution is sufficiently dangerous to the public to
oblige all persons in control of hazardous material to be strictly liable for
their handling of it. The cases reveal, however, that the courts still
examine the accused's mental state. In these cases, though the burden
of proof is on the accused, unlike in other cases when it is on the
prosecution, the accused may be able to satisfy the court that he should
not be convicted. See the leading case of Alphacell Ltd v Woodward
(1972).

Alphacell Ltd v Woodward (1972)

The defendant built and operated setting tanks, which had an overflow channel into a
river and provided pumps to prevent an overflow. The pumps became obstructed with
vegetation, and an overflow of polluted water occurred. There was no evidence of
negligence on the part of the company’s officers, nor that they knew that the pollution
was taking place.
Held, they were rightly convicted on the basis that liability for the offence was strict.
(c) Spirit licence violations: Sale of alcohol offences are
offences of strict liability. Persons selling alcohol commit offences
whether or not they know of circumstances which make a particular act
illegal. As a matter of public policy, they are required to ensure that they
actively take steps to comply with the law. See Cundy v Le Cocq (1884).

Cundy v Le Cocq (1894)

The defendant was convicted for selling intoxicating liquor to a drunken person, contrary
to a statutory provision. He did not know that the person was drunk. The relevant
section did not include the word 'knowingly'.
Held, he was strictly liable, and there was no need to consider whether he knew, had the
means of knowing, or could with ordinary care have known, that the person to whom he
served the drink was drunk at the time.
The same principle applies to the offence of selling alcohol to a minor.

(ii) Transferred malice

In 'transferred malice' cases we examine whether the defendant, having

the mens rea of a particular crime then does something which causes the

20
 actus reus of a different crime, is liable even if the result is unintended.
For example, the defendant meaning to shoot X, shoots Y whom he
believes to be X. He has no mens rea against Y. The defendant would
be liable for Y's murder on the basis of transferred malice. The point is
illustrated by R v Latimer (1886).

R v Latimer (1886)
The defendant hit at one person with his belt, hitting him slightly but wounding the virtual
complainant who was standing nearby. He did not intend to injure the virtual
complainant.
Held, the defendant was liable for the injury. The actus reus and mens rea of the same
crime coincided, even though the defendant had not set out to hit the virtual
complainant.
(3) Coincidence of the actus reus and the mens rea

It is essential that the mens rea and actus reus of the crime coincide. If
they do not, the defendant will not be liable. See the cases of R v Latimer
above and R v Pembliton (1874) which demonstrate the principle.

R v Pembliton (1874)
The defendant who was involved in a fight outside a public house threw a stone at X
intending to hit him. That was an offence against the person. The stone missed X, but
broke a window. That was an offence against property. The intention to commit a
personal injury is different from the intention to do damage to property. He was
convicted at first instance for malicious damage, and appealed.
Held, the conviction was quashed on the basis that he did not have the mens rea for the
result. Put another way, the actus reus of malicious damage had not coincided with the
mens rea of the crime.
Consider the following scenarios:

(1) Mary, Mrs Brown's household helper, takes a watch from Mrs Brown's dresser and
puts it in her bag. As she is about to leave the house, Mrs Brown says, "Oh, Mary, I
forgot to tell you to take the watch on the dresser. It is yours.”
(2) Mary takes the watch without permission and leaves the house with it. Later that
evening Mrs Brown is looking for the watch to wear to a reception and discovers it
missing. Mrs Brown calls the police who go to Mary's house and find the watch in a bag,
under Mary's bed.

In example (1) Mary's taking of the watch demonstrates both the

mens rea and the actus reus of theft. She has taken it up and put it in her
bag with the intention of permanently depriving the owner of it. Her
actions, the state of affairs described, is the evidence of her intention,
thus satisfying the need for the prosecution to prove the ‘defined state of
21
 mind’ of the offence of theft. However, when Mrs Brown tells Mary the
watch is hers, it becomes her property. Both the mens rea and the actus
reus of theft are destroyed, as you cannot steal from yourself. (This will
become clearer later when we look at theft in greater detail).

In example (2) the state of affairs or event coincides with the state
of mind. By taking the watch away to her home, and hiding it, Mary's
intention seems clearly to be to deprive Mrs Brown permanently of it. The
prosecution will have no difficulty in satisfying the jury that both the actus
reus and the mens rea of theft existed, and she would be liable to be
convicted for the theft of the watch.

(4) The burden of proof

Civil and criminal law are both concerned with liability for wrongful
conduct. The same act, such as an assault, may amount to both a civil
wrong (a tort) and an offence (a crime). In the case of a tort, liability is
owed to the injured party. He is entitled to be compensated for his losses
by the payment of damages. In the case of a crime, liability is owed to
the state. A crime is said to be an offence against the public, not against
an individual. The punishment for a crime may be a fine or imprisonment
or some other penalty prescribed by law.

The 'burden of proof' refers to who must prove a particular fact. It

is fundamental to a criminal trial that the prosecution must prove its case.
A person, however clear the evidence seems to be, is innocent until
proved guilty. The leading case is Woolmington v DPP (1935).

Woolmington v DPP (1935)

The accused was convicted of murder, having shot his wife. His wife had left him a short
time after their marriage. He went to see her, taking a shotgun with him. He claimed
that he had intended to tell her that he would shoot himself if she would not return, and
the gun went off accidentally, killing her. At the trial, the trial judge directed the jury that
once it was proved by the prosecution that the accused had killed his wife, the shooting
was presumed to be murder, unless the accused could satisfy the jury that the killing
was accidental or justified, or should be manslaughter rather than murder. His appeal
was dismissed by the Court of Appeal but allowed by the House of Lords.
Held, if the judge were able to rule that the burden of proof had shifted to the accused,
to prove that he was not guilty, that would be making the judge decide the case and not
the jury. The accused is entitled to the benefit of any doubt. While the prosecution must
prove the guilt of the prisoner, there is no such burden laid on the prisoner to prove his
innocence. It is sufficient for him to raise a doubt as to his guilt. He is not bound to
satisfy the jury of his innocence.
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 Throughout the web of the English 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
what I have already said as to the defence of insanity and subject also to any
statutory exception.

(5) The standard of proof

In every criminal case, the prosecution has to prove its case ‘beyond
reasonable doubt’. That is the standard of proof that the prosecution
must meet in a criminal trial. The judge must direct the jury that they are
not to convict unless they are convinced that all the elements of the
offence were present. The phrase 'beyond reasonable doubt' is the
conventional way of expressing the idea that the jury ‘must feel sure’ of
the accused's guilt. It is a stronger standard of proof than what is
required in a civil case. In an action for negligence, for example, the
claimant must only prove the claim 'on the balance of probabilities'. The
judge does not have to feel sure, it is sufficient if one story is more
probable than the other story.

[Further reading: Smith & Hogan, Chapters 4, 5, 7

Dugdale, Chapter 9, 10, 11
Herring, Chapters 1,3,4,5 and 6]

Revision Activity 1.1

Identify the particular heading of the mens rea under which each fact situation falls,
citing a case.
1. Mallards Sugar Ltd. operates a refinery in Endeavour. From time to time residents
have complained that effluent from the factory has been allowed to contaminate the
Endeavour River. The Environmental Agency conducts a survey and finds that
effluent is in fact coming from the factory and prosecutes them. They are convicted
under the relevant statute.
Issue:
Case:
2. Barry is driving his car with a group of friends who have come down from
Canada for the holidays. They are on their way to the beach and come up on a
roadblock mounted by the police, who stop Barry and search his car. At the bottom
of a backpack in the trunk the police found two sticks of crack cocaine and arrest
Barry and all the occupants of the car. The backpack belongs to one of the visitors
and Barry does not know what is in their bags.
Issue:
Case:

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