Selected Criminal Law Terms

Mens rea - [Latin: a guilty mind] The state of mind that the prosecution must prove a defendant to have had at the time of committing a crime in order to secure a conviction. Mens rea varies from crime to crime; it is either defined in the statute creating the crime or established by precedent. Common examples of mens rea are intention to bring about a particular consequence, recklessness as to whether such consequences may come about, and (for a few crimes) negligence. Some crimes require knowledge of certain circumstances as part of the mens rea (for example, the crime of receiving stolen goods requires the knowledge that they were stolen). Some crimes require no mens rea; these are known as crimes of strict liability. Whenever mens rea is required, the prosecution must prove that it existed at the same time as the actus reus of the crime (coincidence of actus reus and mens rea). A defendant cannot plead ignorance of the law, nor is a good motive a defence. He may, however, bring evidence to show that he had no mens rea for the crime he is charged with; alternatively, he may admit that he had mens rea, but raise a general defence (e.g. duress) or a particular defence allowed in relation to the crime.

Actus reus - [Latin: a guilty act] The essential element of a crime that must be proved to secure a conviction, as opposed to the mental state of the accused (see mens rea). In most cases the actus reus will simply be an act (e.g. appropriation of property is the act of theft) accompanied by specified circumstances (e.g. that the property belongs to another). Sometimes, however, it may be an omission to act (e.g. failure to prevent death may be the actus reus of manslaughter) or it may include a specified consequence (death resulting within a year being the consequence required for the actus reus of murder or manslaughter). In certain cases the actus reus may simply be a state of affairs rather than an act (e.g. being unfit to drive through drink or drugs when in charge of a motor vehicle on a road).

Automatism - n. Unconscious involuntary conduct caused by some external factor. A person is not criminally liable for acts carried out in a state of automatism, since his conduct is altogether involuntary. Examples of such acts are those carried out while sleepwalking or in a state of concussion or hypnotic trance, a spasm or reflex action, and acts carried out by a diabetic who suffers a hypoglycaemic episode. Automatism is not a defence, however, if it is self-induced (for example, by taking drink or drugs). When automatism is caused by a disease of the mind, the defence may be treated as one of insanity. Mere absent-mindedness, even when brought about by a combination of, for example, depression and diabetes, is not regarded as a defect of reason under the defence of insanity. It may, however, be grounds for concluding that the accused was not capable of having the necessary mens rea at the time of the offence.

Diminished responsibility - An abnormal state of mind that does not constitute insanity but is a special defence to a charge of murder. The abnormality of mind (which need not be a brain disease) must substantially impair the mental responsibility of the accused for his acts, i.e. it must reduce his powers of control, judgment, or reasoning to a condition that would be considered abnormal by the ordinary man. It may be caused by disease, injury, or mental subnormality, and is liberally interpreted to cover such conditions as depression or irresistible impulse. If the defendant proves the defence, he is convicted of manslaughter. See also battered spouse or cohabitant.

Joint enterprise - see joint venture - A commercial undertaking entered into by two or more parties, often by setting up a separate joint-venture company in which all partners have shares, to enable resources and skills to be shared. Joint ventures are defined in a European Commission notice of 31 December 1994 as "undertakings which are jointly controlled by two or more other undertakings." In practice joint ventures encompass a broad range of operations, from merger-like operations to cooperation for particular functions, such as research and development, production, or distribution. A Commission notice of 23 December 1992 sets out how cooperative joint ventures are treated under the EU competition rules.

Manslaughter - n. Homicide that does not amount to the crime of murder but is nevertheless neither lawful nor accidental. Manslaughter may be committed in several ways. It may arise if the accused is charged with murder and had the mens rea required for murder (see malice aforethought), but mitigating circumstances (diminished responsibility, a suicide pact, or provocation) reduce the offence to manslaughter; this is known as voluntary manslaughter. It may also be committed when there was no mens rea for murder in one of two situations: (1) if the accused committed an act of gross negligence or (2) if the act, although not negligent, was criminally illegal and also involved an element of danger to the victim. For example, it would be manslaughter to knock some bricks off a bridge into the path of a train ( criminal damage), killing the driver, even if one had no idea that there was a train in the area. Such cases are known as involuntary manslaughter. There are generally four types of involuntary manslaughter, although the distinction between them remains unclear: negligent manslaughter, constructive manslaughter, reckless manslaughter, and corporate manslaughter. The maximum punishment for manslaughter is life imprisonment, although this is rarely imposed; however, the Crime (Sentences) Act 1997 provides for a mandatory life sentence for those convicted of manslaughter for a second time (see repeat offender). Most cases of causing death by dangerous driving and causing death by careless driving are usually not charged as manslaughter but as special statutory offences under the Road Traffic Act 1991. However, in certain circumstances causing death by dangerous driving may amount to reckless manslaughter.

Consent - n. Deliberate or implied affirmation; compliance with a course of proposed action. Consent is essential in a number of circumstances. For example, contracts and marriages are invalid unless both parties give their consent. Consent must be given freely, without duress or deception, and with sufficient legal competence to give it (see also informed consent). In criminal law, issues of consent arise mainly in connection with offences involving violence and dishonesty. For public-policy reasons, a victim's consent to conduct which foreseeably causes him bodily harm is no defence to a charge involving an assault, wounding, or homicide; in other cases the defendant should be acquitted if the magistrates or jury have a reasonable doubt not only as to whether the victim had consented but also as to whether he thought the victim had consented. See also age of consent; battery; conveyance; rape.

Appropriation - n. 1. (in administrative law) The allocation of a sum of money to a particular purpose. The annual Appropriation Act authorizes the issue from the Consolidated Fund of money required to meet government expenditure and allocates it between departments and by reference to itemized heads of expenditure.

(in criminal law) See theft. Theft - n. The dishonest appropriation of property belonging to someone else with the intention of keeping it permanently (see dishonesty). "Appropriation" is defined in the Theft Act 1968 as the assumption of the rights of the owner of the property and includes any act showing that one is treating the property as one's own, which need not necessarily involve taking it away. For example, switching price tags from one item to another in a shop to enable one to buy goods at a lower price could amount to an appropriation, as could purporting to sell someone else's property. If a person acquires property without stealing it, but later decides to keep the property unlawfully, he may be regarded as having appropriated it. For example, if A lends his golf clubs to B for a week and B subsequently decides to keep the clubs or sell them, this indicates that B has assumed the rights of the owner unlawfully. "Property" includes all tangible and intangible objects and choses in action (e.g. bank balances) but there are special rules in the Theft Act 1968 governing land and wild plants and animals (see poaching). Property belongs to anyone who either owns it or has physical possession or control of it. The Act expressly states that a person is not dishonest if he believes (even if unreasonably) that he is legally entitled to appropriate the property or that the owner would consent or could not be discovered by taking reasonable steps. The punishment for theft is up to ten years' imprisonment.

Under the Theft Act 1978, obtaining goods or services without paying for them is now covered by the offence of making off without payment (see also shoplifting). Cases in which property is obtained by deception are usually dealt with as deception offences. Theft involving the use of force may amount to robbery. See also burglary; conveyance.

Deception - n. A false representation, by words or conduct, of a matter of fact (including the existence of an intention) or law that is made deliberately or recklessly to another person. Deception itself is not a crime, but there are six imprisonable crimes in which deception is involved: (1) Obtaining property. (2) Obtaining an overdraft, an insurance policy, an annuity contract, or the opportunity to earn money (or more money) in a job or to win money by betting. These two offences are punishable by up to ten years' imprisonment. (3) Obtaining any services (e.g. of a driver or typist or the hiring of a car). (4) Securing the remission of all or part of an existing liability to make payment (whether one's own or another's) with intent to make permanent default in whole or in part. (5) Causing someone to wait for or forego a debt owing to him. (6) Obtaining an exemption from or abatement of liability to pay for something (e.g. obtaining free or cheap travel by falsely pretending to be a senior citizen). It is not an offence, however, to deceive someone in any other circumstances, provided there is no element of forgery or false accounting.

Trespass - n. A wrongful direct interference with another person or with his possession of land or goods. In the middle ages, any wrongful act was called a trespass, but only some trespasses, such as trespass by force and arms (vi et armis), were dealt with in the King's Courts. The distinguishing feature of trespass in modern law is that it is a direct and immediate interference with person or property, such as striking a person, entering his land, or taking away his goods without his consent. Indirect or consequential injury, such as leaving an unlit hole into which someone falls, is not trespass. Trespass is actionable per se, i.e. the act of trespass is itself a tort and it is not necessary to prove that it has caused actual damage.

There are three kinds of trespass: to the person, to goods, and to land. Trespass to the person may be intentional or negligent, but since negligent physical injuries are remedied by an action for negligence, the action for trespass to the person is now only brought for intentional acts, in the form of actions for assault, battery, and false imprisonment. Trespass to goods includes touching, moving, or carrying them away (de bonis asportatis). It may be intentional or negligent, but inevitable accident is a defence. Trespass to land usually takes the form of entering it without permission. It is no defence to show that the trespass was innocent (e.g. that the trespasser honestly believed that the land belonged to him). Trespass to land or goods is a wrong to possession rather than to ownership. Thus a tenant of rented property, for example, has the right to sue for trespass to that property. Trespass to land is a tort but not normally a crime: the notice "Trespassers will be prosecuted" is therefore usually misleading.

However, trespass may sometimes constitute a crime. Thus squatters may be guilty of a crime (see adverse occupation); it is a crime to trespass on diplomatic or consular premises or premises similarly protected by immunity; and it is a crime to enter and remain on any premises as a trespasser with a weapon of offence for which one has no authority or reasonable excuse, or to be on any premises, land, or water as a trespasser with a firearm for which one has no reasonable excuse. The Criminal Justice and Public Order Act 1994 created the offences of aggravated trespass and collective trespass. The summary offence of aggravated trespass occurs when a trespasser in the open air seeks to intimidate, obstruct, or disrupt a lawful activity, such as hunting; an offender can be arrested and failure to leave the land on the direction of a senior police officer is also an offence. Collective trespass occurs when two or more people are trespassing with the purpose of residing on land belonging to another person. The police have powers to direct collective trespassers to leave if they have caused damage, used threatening or abusive words towards the occupier, or brought six or more vehicles (which may be caravans) onto the land (see also unauthorized camping). Failure to leave or re-entry within three months is a summary offence for which a uniformed police officer has a power of arrest. Both collective and aggravated trespass are punishable by a fine and/or three months' imprisonment. See also airspace; burglary; trespassory assembly.

Novus actus interveniens - (nova causa interveniens) [Latin: a new intervening act (or cause)] An act or event that breaks the causal connection between a wrong or crime committed by the defendant and subsequent happenings and therefore relieves the defendant from responsibility for these happenings.

Foresight - n. Awareness at the time of doing an act that a certain consequence may result. In the case of some crimes (e.g. wounding with intent) an intention by the accused to bring about a certain consequence must be proved before he can be found guilty; foresight is not enough (see also ulterior intent). However, conviction for many crimes (including wounding) requires only that the accused foresaw a specified consequence as likely or possible. In all cases where foresight suffices for liability, the court may not assume that the defendant had foresight merely because the particular consequence that occurred was the natural and likely consequence of his acts. See also recklessness.

Malice - n.1. (in criminal law) A state of mind (see mens rea) usually taken to be equivalent to intention or recklessness: it does not require any hostile attitude. Malice is said to be transferred when someone intends to commit a crime against one person but in fact commits the same crime against someone else (for example, if he intends to shoot X but misses, and instead kills Y). Malice is universal (or general) when the accused has no particular victim in mind (for example, if he shoots into a crowd intending to kill anyone). In both cases this constitutes mens rea.

2. (in tort) A constituent element of certain torts. In the English law of tort, the general rule is that a malicious motive cannot make conduct unlawful if it would otherwise be lawful. For example, a right to take water from under one's own land can lawfully be exercised solely in order to cause damage to a neighbour. However, in some cases malice can be relevant. An action for malicious prosecution requires proof that the prosecution was instigated maliciously, i.e. without reasonable and probable cause. In defamation, a malicious motive invalidates the defences of fair comment and qualified privilege. Malice is also relevant to liability for conspiracy to injure someone.

Transferred malice - see malice - n.1. (in criminal law) A state of mind (see mens rea) usually taken to be equivalent to intention or recklessness: it does not require any hostile attitude. Malice is said to be transferred when someone intends to commit a crime against one person but in fact commits the same crime against someone else (for example, if he intends to shoot X but misses, and instead kills Y). Malice is universal (or general) when the accused has no particular victim in mind (for example, if he shoots into a crowd intending to kill anyone). In both cases this constitutes mens rea.

Chose in action - see chose - n. A thing. Choses are divided into two classes. A chose in possession is a tangible item capable of being actually possessed and enjoyed, e.g. a book or a piece of furniture. A chose in action is a right (e.g. a right to recover a debt) that can be enforced by legal action.

Source: A Dictionary of Law. Ed. Elizabeth A. Martin. Oxford University Press, 2002. Oxford Reference Online. Oxford University Press. 26 January 2005 www.oxfordreference.com

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Oxford University Press, Online Resource Centre, Selected Criminal Law Terms.

Selected Criminal Law Terms