Elements of a crimeLEGAL STUDIES 3C

Definition of a crime Crime is an act or omission which offends against an existing law, is harmful to an individual or society as a whole and is punishable by law. Crime is any activity that the state prohibits by law and punishes.

Definition broken down into 4 sections:◦ An act or omission ◦ Offends against an existing law◦ Is harmful to an individual or society◦ Is punishable by law

Crime is relative – it relates to or is dependent on the contemporary values of the community. Abortion was illegal and smoking was acceptable in restaurants a generation ago but not now, their status has reversed.

Elements of a crime For a crime to exist there must be (in most cases):

Mens rea: a guilty mind

Mens rea is the mental element of an offence necessary to establish criminal responsibility. It refers to a person’s intention to commit a crime. The prosecution must prove that the accused was aware that their actions would at least probably result in a crime being committed.

Actus reus: a guilty act

The actus reus is the external, physical or action element of a criminal offence. In most cases it must be proven that the person charged actually carried out the crime, rather than merely thinking about it. It also must have been performed voluntarily.

Strict liability offences Strict liability means there is no necessity to prove intention to commit the crime (a guilty mind) for a person to be found guilty. It is sufficient for the person to have committed the act which is against the law. Strict liability crimes include traffic offences and serving alcohol to under-age persons.

Strict liability offences can only be successfully defended if the accused can prove that the actual act did not occur as mens rea is irrelevant to this category of offences.

For example, it is a strict liability offence to drive a truck that is overloaded. This means that it does not matter whether the driver was aware that the truck was overloaded or not, the simple fact that it was overloaded is enough for an offence to occur. The police do not ask why the truck is overloaded. The offence is that it is overloaded. The same applies to offences such as driving under the influence of alcohol or drugs, not wearing a seatbelt and speeding.

Has a crime been committed? (a) Alexander throws a stick of chalk at Bernard intending to catch his attention. The chalk hits Bernard in the eye, causing him serious injury.

(b) Claudius walks into the Legal Studies lecture with the intention of stealing a Legal Studies textbook. He sits down next to Rupert and takes Rupert’s book out of his bag when he is not looking. On examining Rupert’s book he finds it to be out-of-date and not worth stealing so he puts it back in the bag and leaves the lecture.

(c) Horace puts weed killer into his wife’s tea with the intention of killing her. Irene, his wife, decides not to have tea and pours it into the dog’s bowl. Next day the dog is dead.

Has a crime been committed? (d) Jimbo goes to the swimming pool with the intention of stealing a better quality coat than his own. He puts his old coat on the rack, gets undressed and has a swim. After his swim he has a shower, gets dressed and leaves with what he believes is another man’s coat over his arm. When he gets outside he realises that he has taken his own coat by mistake.

(e) Jemima is driving her car to school when Timmy runs onto the road. Jemima brakes and swerves but cannot avoid hitting Timmy, who later dies in hospital.

Criminal responsibility Age of criminal responsibility

It is presumed that a child under the age of 10 years cannot commit an offence. A child less than 10 years cannot therefore be charged with committing a crime.

It is also assumed that a child between the ages of 10 and 14 is mentally incapable of committing a crime. This is known as the legal principle of doli incapax. This principle can be overturned if it can be shown that the child had a mischievous disposition and knowledge that he or she was doing wrong.

Causation To prove a criminal charge, the prosecution must show that there is a link between the act and the crime. That is, that it is an act by which an effect is produced.

For example, if someone was stabbed and they died on the operating table, then it is the act of the stabbing that caused the person to die, rather than the fault of the doctor. This link is called causation. The prosecution needs to prove that the act was the substantial and operative cause of the crime.

Innocent until proven guilty The principle that a person is considered innocent until proven guilty:

• A legal right of the accused

• Burden of proof is on the prosecution to prove ‘beyond reasonable doubt’ that the accused is guilty.

• The standard of proof is beyond reasonable doubt.

• The Universal Declaration of Human Rights, article 11, states: "Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence."

Activity 2 Reading: Page 433 – 435 (Blue edition)

You be the judge:

Alan McMillan had been at the pub for several hours. Near closing time, he decided to go home. He asked a couple of friends whether they wanted a lift. They both said that they would find their own way home, and Alan set off alone.

He went outside to his car, which was parked in the street. He sat in it and turned the ignition key, but nothing happened. He got out and opened the bonnet, and adjusted a few things in the hope that he could fix the car. At that moment two policemen came up, and saw that he was staggering a bit. The police gave Alan a breathalyser test, and he was found to be over the limit. He was charged with attempting to drive a car while under the influence of drink.

At his trial, Alan argued that it would have been impossible for him to drive the car. A mechanic had found something wrong with it. Alan could not have fixed it himself and made it go. He could never have driven the car that night, and it was unfair to charge him with trying to do something which he could not possibly have done.

Should Alan be found guilty?

Answer: The magistrate agreed with Alan that he could not be guilty of attempting the impossible, and found him not guilty.

The prosecution appealed. The judge said that an attempt to commit a crime was shown by two things: actions connected with an offence, and an intention to commit the offence. The intention could usually only be discovered from a person’s behaviour. There was no reason why a person could not be found guilty of intending to commit a crime, even though for some reason it was impossible at the time.

The judge sent the case back to the magistrate, telling him to decide whether Alan’s acts showed that he had intended to drive the car and had tried to start it. If he had, then he was guilty of the crime.