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Before considering the purposes of civil
and criminal sanctions, it is desirable first to consider
briefly the general principles of criminal liability.
The most important common law maxim of criminal law is actus
non facit reum nisi mens sit rea (the doing of an act does
not make a person guilty unless he has a guilty mind).
This embodies the common law principle that a person should
not be found guilty of a crime unless it can be proved that,
in addition to doing a prohibited act (actus reus),
he also intended to do it, that is, he had mens rea.
Since one of the most important reasons
for imposing criminal sanctions is to deter, it would generally
be pointless to punish a person for doing something which he
had not intended to do, or possibly for something which he did
not even know he had done.
Actus reus presents little difficulty, as it is contained in
the definition of every crime and it is for the prosecution
to prove that the accused did the prohibited act. For example,
in the case of murder, if A is charged with murdering B, the
prosecution must show, inter alia, that A did in fact kill B.
sometimes an omission, rather than an act, may constitute the
actus reus of a crime. For example, in Fagan v. Metropolitan
Police Commissioner (1968), a constable asked the defendant
driver to draw into the kerb, and the defendant did so but stopped
with one wheel of his car resting on the constable’s foot.
He was slow in restarting the engine and moving off when asked
to do so and it was held that his omission to move the car immediately
amounted to an assault. (This ruling was based on the assumption
that the defendant did not deliberately drive on to the constable’s
foot, which would have been an example of an act creating an
assault).
The act or omission of the defendant must be the cause of the
crime, although it is a general rule that the defendant must
take his victim as he finds him.
In R v. Jordan (1956), the defendant stabbed his victim so that
the victim’s intestine was penetrated in two places. He
was taken to hospital where he died a few days later. Medical
evidence showed that the stab wounds had mainly healed at
the time of death, and the main cause of death was the abnormal
quantity of liquid which had been injected into the victim’s
lungs which he was in hospital, resulting in pulmonary oedema.
The defendant’s conviction on a charge of murder was quashed:
the cause of death was not the stabbing, but pneumonia resulting
from the condition of oedema.
With advances in medicine, there have been cases where victims
of crime have been kept ‘alive’ by life support
machines but later, when brain death has been established beyond
doubt, have had the life support machines withdrawn. In such
cases the courts have held that there has been no break in the
chain of causation, and that death has resulted from the original
injuries rather than from withdrawal of the life support systems.
Mens rea presents much more difficulty as it is concerned
with a person’s state of mind, and only an individual
himself can with absolute certainty know his own stat of mind.
In general, two ingredients are necessary to constitute mens
rea:
-The act must have been done voluntarily.
-There must have been some foresight of consequences. There
may have been intention to do the act, or recklessness, with
the defendant foreseeing the consequences of his act, and not
caring whether those consequences were brought about or not.
Some crimes are defined so as to require from the prosecution
proof that a particular form of mens rea was in existence. For
example, in murder, the mens rea to be proved is ‘malice
aforethought’, that is, an intention to kill or to cause
grievous bodily harm.
Section 8 of the Criminal Law Act 1967
provides that the court must decide whether the defendant did
intend or foresee the result which occurred. In other words,
it is a question of fact, not a presumption of law, that the
defendant did foresee the results.
Although, as already mentioned, mens rea must be proved,
it is a rule of law nevertheless that every man is presumed
to intend the natural consequences of his acts, for it is impossible
to prove a state of mind conclusively.
Thus, if it is shown
that a man has killed his daughter in cold blood, he is prima
facie guilty of murder, and it is no defence to say that he
intended merely to chastise her and not to kill her. However,
this presumption does not displace the onus on the prosecution
to prove its case beyond all reasonable doubt. In Woolmington
v. D. P. P. (1935) the defendant killed his wife by shooting
her. Although there was some evidence that this was an accident,
the trial judge held that it was for the defendant to prove
that it was an accident. The House of Lords ruled that this
was wrong: as there was some evidence to show that there had
been an accident, the prosecution must prove that this evidence
could not be relied upon, and that the defendant had murdered
his wife. The rule, therefore, is only a rule of construction
which applies in the absence of evidence to the contrary, but
if challenged by a defendant, the prosecution must prove that
it applies.
The common law rule that every crime requires mens rea does
not always apply to crimes created by statute. There is a presumption
that mens rea is required, but this may be rebutted
by the words or obvious intention of the statute, which may
impose strict liability, that is, the defendant may be found
guilty even though he has no mens rea.
For example, in Meah v. Roberts (1977),
two children were, by mistake, served with glasses full of caustic
soda instead of lemonade. Although the defendant was not the
person who had put the caustic soda in the lemonade bottle,
and did not know what the bottle contained, he was nevertheless
found guilty of selling food unfit for human consumption, which
is and offence under the Food and Drugs Act 1955.
In Cundy v. Le Cocq (1884) the defendant was convicted of unlawfully
selling liquor to a drunken person, although he did not know
that the person was drunk. Stephen, J. said: ‘….we
have bee quoted the maxim that in every criminal offence there
must be a guilty mind; but I do not think that maxim has so
wide an application as it is sometimes considered to have. In
old time, and as applicable to the common law or to earlier
statutes, the maxim may have be4en of general application; but
a difference has arisen owing to the greater precision of modern
statutes.
It is impossible now….to apply the maxim generally
to all statutes, and the substance of all the reported cases
is that it is necessary to look at the object of each Act that
is under consideration to see whether and how far knowledge
is of the essence of the offence created. Here …..the
object f this part of the Act is to prevent the sale of intoxicating
liquor to drunken persons, and it is perfectly natural to carry
that out by throwing on the publican the responsibility of determining
whether the person supplied comes within that category. I think
therefore the conviction was right and must be affirmed.’
Another important maxim of criminal law is nulla poena sine
lege. This means that a person must not be made to suffer criminal
penalties except for a clear breach of existing criminal law,
and that the law must be precise and well-defined. This involves
the following propositions:
-Statutes involving criminal responsibilities do not operate
retrospectively, so that a person cannot be found guilty of
a crime for doing an act which was not unlawful, however reprehensible,
at the time when he did it.
-Case law cannot be widened to increase by analogy crimes which
do not directly fall within it. In this there is a fundamental
difference between criminal and civil law: in some branches
of civil
law development has been by extension of broad principles
to cover new circumstances.
-Criminal laws ought not to be formulated in wide and vague
terms.
In Shaw v. D. P. P. (1966), the defendant’s appeal against
conviction for the offence of ‘conspiring to corrupt public
morals’ was dismissed by the House
of Lords. However, the minority judgment of Lord Reid is
now widely considered to be preferable to that of the majority.
Lord Reid said that in his view there was no offence known to
the law as ‘conspiring to corrupt public morals’,
and in convicting the defendant of it the courts were creating
a new crime on the basis of public policy. He felt that if the
courts had stopped creating new heads of public policy in civil
law, then they certainly should refrain from doing so in criminal
law.
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