The basic elements of crime

Basic Elements of Crime 

Criminal law typically prohibits undesirable acts, and proof of a crime requires evidence of some conduct. This is referred to as the actus reus or "guilty act." Some crimes, especially modern regulatory offenses, are classified as strict liability offenses, requiring no further proof beyond the act. However, due to the potential severity of criminal convictions, courts often require evidence of an intent to commit the act, known as mens rea or "guilty mind." For crimes where both actus reus and mens rea are necessary, courts have ruled that these elements must coincide, meaning they must occur simultaneously rather than sequentially.

Before someone can be convicted of a crime, the prosecution must generally prove:

a) That a specific event or state of affairs, prohibited by law, was caused by the accused’s conduct.

b) That this conduct was accompanied by the required state of mind— mens rea.

1. Actus Reus

Actus reus is derived from Latin, where actus means an act and reus refers to something forbidden by law. Therefore, actus reus can be described as the result of human conduct that the law aims to prevent. This conduct may include actions or omissions and can be accomplished through direct action, threats of action, or in exceptional cases, failure to act. For instance, striking another person or a parent's failure to provide food to a child may constitute actus reus. It encompasses all elements of the crime except for the defendant's state of mind.

   (i) Proof of Actus Reus

 Actus reus must be established for a crime to exist; without it, a person cannot be convicted based solely on their mental state. For example, mere intent to kill is not punishable unless a killing has occurred. Similarly:

   - If A takes B’s property with the intent to steal, but B had consented to the taking, no crime has been committed.

- If D believes he is stealing P’s property but the property belongs to no one, mens rea is present, but actus reus is absent, and thus no crime has occurred.

   (ii) Actus Reus and Will

For an act to be considered actus reus, it must be willed by the accused. If someone cannot control their movements, they should not be held criminally liable for those movements or their consequences. In legal terms, "actus reus is a muscular contraction and something more." For instance, a spasm is not an act because the contraction of muscles must be voluntary.

In R. v. Charlson [1955] 1 ALL E.R 859, a father struck his son on the head with a mallet and threw him out of a window without apparent motive. Medical evidence suggested the father may have had a cerebral tumor, which could cause violent outbursts beyond his control. The father was acquitted as he did not act voluntarily.

In Hill v. Baxter [1958] 1 ALL E.R 193, the defendant drove through a road crossing, causing a collision, but later claimed memory loss. Despite his claim, evidence showed he had driven a considerable distance before the accident, and his plea failed.

   (iii) Actus Reus as ‘State of Affairs’

   Some crimes can be committed without any specific act. In such cases, a “willed muscular movement” is not necessary. For example, under the Road Traffic Act, a person in charge of a vehicle while unfit to drive due to intoxication commits an offense regardless of whether they have driven or intended to drive. An offense can be committed simply by being in a particular place or possession of something.

It must be demonstrated that the defendant’s act or omission led to a particular result. For instance, if A and B both intend to kill someone, and A succeeds while B misses, only A can be guilty of murder.

All offenses consist of various elements that must be present. Some offenses may only be committed:

- By a particular class of person (e.g., a convicted thief).

- Against a person of a specific age (e.g., indecency with a child).

- Against a particular class of public servant (e.g., assault on a police officer).

- Involving property of a specific type (e.g., theft of a motor vehicle).

- Without the victim’s consent (e.g., rape).

- Where a specific relationship exists between the accused and the victim (e.g., incest).

- At a specific time (e.g., burglary).

- In a specific place.

(iv) Actus Reus and Causation

An actus reus can be nullified if there is an absence of causation. For crimes involving harm to a person, the accused's actions must be both the "but for" cause and the proximate cause of the harm. In cases where more than one cause exists (e.g., harm comes from multiple culprits), the accused's actions must have "more than a slight or trifling link" to the harm. When the definition of actus reus requires the occurrence of certain consequences, it must be proven that the accused's conduct directly caused those consequences. In cases like murder or manslaughter, the prosecution must show that the accused's act caused the victim’s death. If the death resulted solely from another cause, the crime is not committed, even if the other elements of actus reus and mens rea are present.

Causation is established when it can be shown that the event would not have occurred at the time and in the manner it did if the accused had not acted. For example, if A poisons B with the intent to kill, but B dies from a heart attack before consuming a fatal amount of the poison, A cannot be guilty of murder. Causation is not negated simply because the victim is particularly vulnerable (this is known as the "thin skull rule"). However, it can be broken by an intervening act (novus actus interveniens), such as the actions of a third party, the victim’s own conduct, or an unpredictable event. Mistakes in medical treatment usually do not break the chain of causation unless those mistakes are "so potent in causing death."

An actus reus may also involve an omission to act where action is legally required. According to Section 5 of the Penal Code, an offense includes an act, attempt, or omission punishable by law. Omissions are generally not punishable unless there is a legal obligation to act. Once it is established that a particular offense can be committed by omission, it must also be proven that the accused had a duty to act under the circumstances.

Common law rarely punished omissions. A typical example is a group of people watching a child drown in a shallow pool when they could save the child. If none of them have a specific relationship with the child, no crime is committed. However, if one of them is the child’s parent or guardian, they would have a duty to act, and failing to do so would constitute a breach of criminal law. 

In The Queen v. Instan (1893) 1 QB 450, the accused lived with the deceased, who was sick and unable to support herself. The accused failed to provide food or secure medical care for the deceased, leading to her death. The court ruled that under the circumstances, the accused had a duty to supply the deceased with sufficient food, and by neglecting this duty, the accused was properly convicted of manslaughter.

Common law generally does not impose a duty to protect another’s property unless a special relationship, such as that between a parent or guardian and the other person, exists, or where there is a gratuitous duty of care.

(v) Actus Reus Specific Elements

In criminal law, it may be necessary to break down the actus reus into its specific elements:

- Conduct (the central feature of the crime)

- Circumstances (surrounding material)

For instance, under section 134 of the Penal Code, regarding the abduction of a girl under sixteen years:

- Conduct: The central feature of the crime is the physical act of taking away the girl.

- Material Circumstances:

   - The absence of lawful authority or excuse (against her will).

   - The girl must be unmarried and under sixteen.

   - She must be in the custody of her parents or guardian.

If any of these circumstances is missing, the crime is not committed. For example, if the accused acted under a court order, if the girl was married or older than sixteen, or if she was not in the custody of a parent or guardian, there would be no actus reus.

2. Mens Rea

Mens rea, a Latin phrase meaning "guilty mind," refers to the mental state or intention of a person committing a wrongful act. It involves a person's awareness or intention to engage in conduct that violates the law. Importantly, mens rea is separate from motive, as the latter pertains to the reason behind the act, while the former focuses on the intent to commit the act itself. For instance, if Mr. John robs Mrs. Mwajuma with the intent of giving the money to Miss Julia, his benevolent motive does not alter the fact that he had the criminal intention to commit robbery.

Mens rea also encompasses the knowledge of the wrongfulness of an act and the requisite mental state accompanying the act (actus reus). Criminal liability generally requires a blameworthy state of mind, but not all offenses demand mens rea. Many statutory offenses impose liability regardless of intention. The three primary degrees of mens rea are intention, recklessness, and negligence, though some offenses, especially minor ones, may not require any mens rea.

(i) Intention

Under Section 10 of the Penal Code, an individual is not criminally responsible for an act or omission that occurs independently of their will or is accidental. However, when an offense requires a specific result, it is immaterial whether the act or omission was accidental if the person intended to bring about that result. Direct intention occurs when a person aims to achieve a specific result and believes it will succeed. Oblique intention arises when a person foresees the result as likely or certain, even if it was not the primary goal. For example, if A shoots at B from a long distance, hoping to kill B despite knowing the low probability of success, A’s intention is still to kill B.

Intent is often expressed in statutory language using terms like "intentional," "with intent to," "willfully," or "malice aforethought" (as in Section 196 of the Penal Code). The presence of specific intent must be proven for convictions in crimes like fraud (Section 258) or manslaughter.

The case of Brazila v. R. (1968) H.C.D No. 309 illustrates the importance of proving intent. The accused, a messenger in charge of prisoners, was charged with aiding an escape after prisoners fled while he went for a walk. The court held that negligence did not suffice to prove "aiding" the escape, as the prosecution failed to show positive assistance or intent.

(ii) Motive

Motive, unlike intention, is irrelevant in determining guilt in most criminal cases. Section 10 of the Penal Code establishes that motive does not alter the criminal nature of an act or omission. Even where an act is motivated by good intentions, as in the case of a person killing out of compassion, the mens rea remains intact. For instance, in R. v. Windle [1952] 2 QB 826, the accused gave his suicidal wife a lethal dose of aspirin, knowing it was against the law. Despite his compassionate motive, he was found guilty of murder because he understood his actions were illegal.

In rare cases, motive may play a role in sentencing, as seen in R. v. Senior (1899) 1 QB 283, where the accused's religious objections to medical treatment led to the death of his child. Although his motive was religious, the court found that his willful neglect caused the death, leading to a manslaughter conviction.

(iii) Recklessness

Recklessness occurs when a person foresees the potential consequences of their actions but proceeds regardless. It involves taking an unjustified risk, where the individual has actual awareness of the risk but does not desire the outcome. Recklessness is often sufficient to establish criminal liability, as in cases of dangerous driving or other offenses under the Penal Code’s Chapter XXII, which deals with degrees of recklessness.

(iv) Negligence

Negligence, unlike recklessness, occurs when a person fails to foresee the consequences of their actions but should have done so as a reasonable person. In R. v. Chepe Kalangali 1973 L.R.T N.77, the accused failed to take proper care of a child in his custody, resulting in the child’s death from exposure. The court held that negligence was sufficient to establish guilt for manslaughter, as the accused had a duty to protect the child and failed to fulfill that duty.

Negligence and recklessness are closely related but differ in their degree of awareness and intent. Both concepts appear in various statutes, such as the Road Traffic Act, which punishes careless driving or driving without consideration for others, reflecting the borderline between negligence and recklessness. Similarly, Chapter XXIII of the Penal Code deals with offenses involving criminal recklessness and negligence, emphasizing their significance in criminal liability.

(v) Mens Rea and Voluntariness

Mens rea is tied to voluntary actions, implying that if a person's actions are involuntary, such as during an epileptic seizure or sleepwalking, there is no guilty mind. According to section 10 of the Penal Code, involuntary acts do not include mens rea. In Bratty v. A.G. for Northern Ireland [1963] A.C. 386, Lord Denning emphasized that involuntary actions, such as spasms or reflexes, lack the necessary mental control to be punishable. Similarly, in Anthony Mhikwa v. R. (1968) H.C.D. No. 460, an accused's involuntary response (a fly entering his nose) led to a quashed conviction for contempt of court, as there was no mens rea. This reflects the principle that criminal responsibility requires a voluntary act accompanied by a guilty mind.

Strict Liability

In cases of strict liability, a person can be held criminally responsible solely based on the actus reus, without the need to prove mens rea. Strict liability, also known as absolute prohibition, is often applied to regulatory offences where public health, safety, or order is concerned. In Joseph Harkworth v. R. (1970) H.C.D. No. 27, Englishmen who entered Tanzania unlawfully were convicted despite their lack of intention to break the law. The court emphasized that strict liability in such cases serves to uphold rigorous legislative control, and the appeal was dismissed. Strict liability is justified by the need for efficiency in public safety and to prevent offenders from escaping liability due to evidentiary gaps in proving mens rea.

Vicarious Liability

Generally, criminal liability is personal, but in certain cases, a master or employer can be held vicariously liable for the acts of their servants or employees. Vicarious liability is applied where the master delegates specific duties or responsibilities to the servant, such as in the case of public nuisance or under statutory provisions. In Hamad Abdallah v. R. [1964] E.A. 270, a vehicle license holder was convicted of failing to comply with license conditions despite not being present when the offence occurred. The court held that section 26(1) of the Transport Licensing Ordinance imposed absolute liability on the master, making him vicariously liable for the breach committed by his servant. This rule is meant to ensure that statutes are effectively enforced and the will of parliament is upheld.

Corporate Liability

Corporate liability refers to a situation where a company is held criminally responsible for offences committed by its employees or directors. According to section 3 of the General Interpretation of Laws Clauses Act, the term "person" includes corporate bodies, allowing for the prosecution of companies. Section 53 specifies that when an offence is committed by a corporate body, not only can the company be prosecuted, but also directors or officers involved in the management of the company’s affairs, provided they were aware or should have been aware of the offence through reasonable diligence.

Despite a company being a separate legal entity, it can only act through its directors or employees. Thus, its liability often stems from the actions of these individuals. Courts generally hold companies directly liable for actions taken by their officers within the scope of their duties, treating the company’s acts as its own, not merely vicarious.

Limitations on Corporate Liability

Corporate liability is generally limited to the acts of senior officers such as managers or directors. Wrongful acts by lower-level employees do not usually result in criminal liability for the company. Additionally, corporations can only be convicted of offences punishable by fines, as they cannot be imprisoned. Some crimes, such as murder or sexual offences, are inconceivable for a company to commit, as they require personal intent or conduct not attributable to a legal entity.

Burden of Proof

In criminal cases, the burden of proof lies with the prosecution. This means that the prosecution must prove every element of its case beyond reasonable doubt. The standard of proof for the defense is lower, as the accused is required to raise reasonable doubt or prove their case on the balance of probabilities. The presumption of innocence remains with the accused until the contrary is proved, and this burden does not shift, except in specific cases, such as when dealing with the possession of stolen property, where the accused might have to provide some level of proof.