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Thursday 13 December 2012

Principles of criminal liability Thoughts

Characteristics of a crime
Harm
Brought about by Human Conduct
Sovereign state desires to prevent it Like us On Facebook

Measure for prevention includes threat of Punishment

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the harm and inflicting punishment

The place of Criminal Law in Criminal Science Follow Page

Three branches of Criminal Science:

Criminology: It deals with the causes of Crime – both Biological and Social
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measures by setting up social organizations to prevent harmful activities
and lays down the principles by which harms are classed as crimes and how
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Principles of criminal liability

The period of Strict Liability Connect Us On LinkedIn

Strict liability crimes are those in which the defendant is held liable for a criminal
offense he committed, even if mens rea is absent. Though the defendant did not
intend any harm by his actions and was completely unaware that he was
committing an illegal act, the doctrine of strict liability holds him liable for the
criminal offenses committed.

Most cases of strict liaiblity are minor infractions and misdemeanors, not nearly
as serious as felonies, but still warranting heavy fines and up to a year in jail.
Examples of minor offenses for which violators are held strictly liable are parking
violations, speeding unknowingly, selling alcohol to minors and, in some
jurisdictions, employing people under the age of fourteen. Popular Posts

Whether application for restoration of petition can be

Mental Element in Criminal Liability filed by advocate with his signature?

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To constitute a crime and subject the offendor to a liability to punishment, i.e., to Apex Court had occasion to consider the same legal
question in Ananta Pandu Porobo Desai and others
produce legal criminal “guilt”, a mental as well as a physical element is v. Lalita Poi [(1978) 2 SCC ...
necessary. Thus, to use a maxim “Actus non facit reum mens sit rea“. The act
When subsequent purchaser will not get title to
does not make a person guilty unless the mind is also guilty. property?
This issue is as to whether defendant nos. 3 to 5 can
claim to have title to the suit property as bona fide
It is a well known principle of natural justice meaning no person could be purchasers without notice in ...
punished in a proceeding of criminal nature unless it can be shown that he had
Whether subsequent suit will be barred by res
a guilty mind. judicata if previous suit was not decided on merit?
The general principle of res judicata Under Section
Accordingly, every crime involves: 11 of the Code of Civil Procedure contain Rules of
conclusiveness of judgment, but for r...

1. A particular physical condition – a vicious conduct Whether plaintiff or a defendant, while deposing as a
witness, can be confronted with documents in cross-
2. A particular mental condition – a vicious intention examination completely divorced from or foreign to
the pleadings made?
The differentiation between the party to a suit and a
Shares Actus Reus witness, as is made clear by our earlier discussion, is
not something that gels with ...
Actus – A physical result of human conduct and Reus – criminal policy that
prohibits and seek to prevent its occurrence by imposing penalty for its Whether court should accept
vakalatnama filed by new advocate
commission. Thus, Actus Reus means “such result of human conduct as the without no objection of previous
law seeks to prevent” advocate?
Whether vakalatnama filed by a new
advocate is to be accepted in the
For example, A repeatedly stabbed B and thereby caused serious injury to his absence of 'no objection' of the advocate already on
...
heart and lungs because of this injury B died. A stabbed B with an intention to
cause death of B. Here A’s act of repeated stabbing and injuring of B is conduct,
the result of such conduct is the death of B Followers

Followers (592) Next

A mere injury caused by a conduct is not actus reus:

For example, when the court sentences a death penalty to a person and the
execution takes place.

Results of Omission: In many cases, even the omission of action qualifies as

actus reus. Follow

Causation: Harm is an event and event is the product of plurality of factors.

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There are several causes of one event. So, it can be reasonably said that the
event is caused by one of these factors if it would not have happened without Select Language Powered by Tra
that factor. For example, a man can be said to have caused the actus reus of a
crime if that actus would not have occurred without his participation in what was
done.

No physical participation and liability for actus reus

Principles
Accessories
Incitement
Conspirator
Circumstances where instigator is primarily liable and instigated is guiltless

Where another person intervened

R v. Lawe: Engineer deserting his work, leaving the engine in charge of an
ignorant boy who declared himself incompetent to handle the engine.
R v. Jordon: A stabbed B, B subsequently died. Medical evidence showed
that B died due to Broncho-Pneumonia due to mistaken administration of
antibiotics and intravenous injection.

Victim’s Own Conduct has affected the result

R v. Horsey: A sets fire to a stack of straw. While the stack was burning, the
victim was seen in flames and his body was found in the stack yard. No
evidence as to how he came there. A tried to save the deceased.

Contributory Negligence
R v. Swindall and Osborne: Each person driving horse cart on a public
road encouraging each other to drive it at dangerous place, killed a
pedestrian. It was alleged that deceased is deaf, careless and negligent.

Mens Rea
One of the main characteristic of our legal system is that the individual’s liability
to punishment for crimes depends, among other things, on certain mental
conditions. The liability of conviction of an individual depends not only on his
having done some outward acts which the law forbids, but on his having done
them in a certain frame of mind or with a certain will. Mens Rea is the mental

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process of a person. At the time, when he was engaged in the activity which
resulted in the deed. It is a legally reprehensible state of mind.

It means a mental state, in which a person deliberately violates a law. Thus,

mens rea means intention to do the prohibited act.

Development of Mens Rea

In the earliest time it was the fundamental presumption that a man in every case
intended to do what he has done. The English criminal law began with strict
criminal liability, and there was no clear distinction between the Tort and crime.
Therefore the mental attitude of a person was an irrelevant consideration in so
far as trial and punishment was concerned.

But later on bodily punishment came as a substitute of the payment of damag

Shares then the importance of mens rea or the mental attitude of a person, at the time
of
commission of crime was realized. With the passage of time requirement of
mens rea as an essential element of a crime has firmly taken in its roots.

Mens rea in its root

Now it is the combination of act ( actus rea) and intent mens rea which makes a
crime. And the maxim – Actus non facit reum nisi mens sit rea means act
alone does not make a man guilty unless his intentions were so. It is a well
known principle of natural justice. There can be no crime large or small without
any evil intent. The responsibility in crimes must depend on the doing of a willed
or voluntary act and a particular intent behind that act. Most conscious and
voluntary acts are directed towards result or consequence. When one acts to
produce a particular consequence he is said to do that act with that intention.

Intention + Act + attempt = Offence

Exceptions to mens rea

Crime = Voluntary act + foresight of the consequences

Acts under compulsion

If the consequence not looked for the act may be voluntarily but not intentional.
For any criminal liability there must be a voluntary act, this preposition drive
from the maxim – Actus me invite factus non est mens actus which means
and act done by me against my will is not my act. This maxim support the
doctrine of Mens Rea – for no person can be held liable for an act done under
the fear or compulsion.

For example:

A holds B and compels him at gun point to open the lock of C’s house. Here B’s
act not a willed or intentional act.

The basic requirement of the principle of Mens Rea is that accused must have
been aware of all those elements in his act which make it the crime with which
he charged.

Desire + Will + Motive + Intention + Preparation + Attempt = Commission of an

offence

Application of Mens Rea in Indian Penal Code

Technically, the application of mens rea is not applied to the offences under IPC.
Every offence is very clear under IPC 1860. The definition not only states what
accused might have done, that also states about the state of his mind with
regard to the act when he was doing it. Each definition of the offence is
complete in itself. The word Mens Rea are not used anywhere in IPC. However,
the equivalent words to those of mens rea in the IPC Code used are:
Dishonestly (s. 24), Fraudulently (s. 25), reason to believe (s. 26) and voluntarily
(s. 39)

Case Laws:

Sankaran Sukumaran V/s Krishnan Saraswathi (1984 Cr Lj 317) SC held that

mens rea is an essential ingredient of the offence under section 494 (bigamy),
where the second marriage has been entered in a bonafide belief that the first
marriage was not subsisting, no offence under this section committed.

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C. Veerudu v. State of Andhra Pradesh, SC held that under section 498 A,
cruelty means “willful conduct”. Willful conduct includes mens rea.

Conclusion:
In modern statutory offenses, the maxim has no longer applicable and the
statutes are to be regarded as themselves prescribing the mental element which
is pre-requisite to a conviction. So mens rea is an essential element of crime, in
every penal statue unless the same either expressly or by necessary implication
is ruled out by the statues.

Voluntary Conduct
A man is guiltless if his movements which led to the harm were involuntary. For
example: Nurse putting the child behind a large fire by thinking it as a log of
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wood.

Foresight of the consequences

An voluntary act resulted in the harm and the harm was not
contemplated. Principle: A man should not be punished unless he had been
aware that what he was doing might lead to mischievous result.

Knowledge
Direct appeal to your senses. Here the probability is very high (against to
commit the act against Law). Exp. to purchase a stolen good. Theft – To taking
possession without the consent of the owner.

Intention, Recklessness and Negligence

Intention denotes the state of mind of a man who not only foresees but also
desires the possible consequences of his conduct. There cannot be intention
unless there is also foresight. For example, A man cannot intend to do a thing
unless he desired to do it.

Intention is the most culpable form of mens rea, as it involves acting with the
objective of bringing about a consequence or with the desire to bring about that
consequence and foresight that your actions are virtually certain to do so.
Presumption of Intention – Natural and probable consequences should be
presumed.

Recklessness – Intention cannot exist without foresight but foresight can exist
without intention. If a person foresees the possible consequences of his
conduct, yet not desire them to occur but persists on his course. Thereby
knowingly runs the risk of bringing about the unwished result. This state of mind
is calledreckless. Some feature of recklessness: Man who is reckless may
prefer that the contemplated event shall not happen or, he may not care whether
it happens or not. In both these situations that person does not desire the event
to happen.

Basic principle of fixing a criminal liability is the combination of : Foresight and

Indifference. Doing something without the knowledge but the foresight.

Misnomer of recklessness
Wicked
Criminal negligence
Culpable negligence
Gross negligence
Complete negligence

Most of these misnomers create more confusion as to the true meaning

recklessness instead of clarifying them

Only two state of mind which constitute mens rea:

Intention
Recklessness

Vicarious Liability at Common Law

Negligence
A person is negligent when:

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1. he fails to foresee a risk that a reasonable person would have foreseen; or
2. hedoes foresee the risk, but either does not take steps to avoid the risk or
takes inadequate steps, thereby falling below the standard to be expected of
the reasonable person.

In both intentional and reckless act – The person involved must necessarily
foresee its possibility
Still he adverts to the result
If a man brings about an event without having adverted to it at all
for him the event is surprise
If the event is harmful then the question of his legal liability arises

Negligence & Criminal Liability

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For negligence at common law tortious liability can be imposed if certain
conditions are fulfilled
At common law there is no criminal liability caused by inadvertence

Difference between Negligence and Recklessness

The difference between recklessness and negligence is that of difference
between advertence and inadvertence

Negligence and Neglect

Again negligence is Inadvertent and neglect is Advert
Statutory Offences
An offence is basically a violation of law. In legal parlance, the word “offence” is
generally construed as a criminal wrong. Hence, offence means a wrong in
penal law. The Code of Criminal Procedure, 1973 defines “offence”as “any act
or omission made punishable by any law for the time being in force and includes
any act in respect of which a complaint may be made under section 20 of the
Cattle-trespass Act, 1871( 1 of 1871)”. This is a guideline for offences related to
the Code. But, there are other types of offences too; the ones that are created
by different statutes, like those related to taxation, national security, etc.. These
are commonly referred to as Statutory offences.

Mens Rea in Statutory offence

Before a criminal is made liable, he should be proven to have some
blameworthy mental condition (mens rea). For example, when someone attacks
you, then, causing injury to him in private defence is not a crime but, causing
injury with the intention of revenge is a crime. This is how the presence of a
guilty mind changes the nature of the offence. But, the requirement of a guilty
mind varies from crime to crime. An intention which would qualify as the
required mens rea for one crime, may not for some other crime.

Presumption requiring mens rea

In statutory interpretation, certain presumptions are taken into account by the

court while interpreting the statutes. The presumption relevant here is that a
criminal act in general requires the presence of mens rea. Almost all crimes that
exist independently of any statute require, for their commission, some
blameworthy state of mind on the part of the actor.

Where a statute creates an offence, no matter how comprehensive and absolute

the language of the statute is, it is usually understood to be silently requiring that
the element of mens rea be imported into the definition of the crime (offence) so
defined, unless a contrary intention is express or implied. Hence, the plain
words of a statute are read subject to a presumption (of arguable weight), which
may be rebutted, that the general rule of law that no crime can be committed
unless there is mens rea has not been ousted by the particular enactment.

In determining whether a statutory provision does or does not create an offence

of strict liability, the following considerations seem to be relevant, as given in the
judgment of (M.H. George’s Case) :-

1. Phraseology of the statutory provision creating an offence of strict liability,

particularly expressions indicating or excluding the mental element required.
2. Object of the Statute
3. Nature of public purpose purportedly preserved by the statute

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4. Natureof the mischief at which the provision or statute is aimed, and
whether the imposition of strict liability will tend to suppress the mischief,
although strict liability should not be inferred simply because the offence is
described as a grave social evil.
Illustration of statutory offences and mens rea
R v. Prince – Accused taking away a girl of 16 yrs old out of possession of
her father
Brand v. Evans – Licensee charged with permitting illegal activities in the
licensed premises
Possessing, for sale unsound meat
Selling of adulterated article of food
Un discharged Insolvent obtaining credit through agent
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Mistake
Conditions to be fulfilled for availing mistake of fact as a defence – Sections 76
& 79 of IPC. The mistake must relate to FACT and not to LAW. The state of
things believed to exist would, if true, have justified the act done. The mistake
must be reasonable

Acts done under order of a superior authority – the accused believing himself to
be bound by law was entitled to the protection under Sec 76 (State of West
Bengal v. Shew Mangal Shah, 1981)

Charges of obscenity – Prior certification by the Censor board provides

justification in law in exhibiting the film. (Raj Kapoor v. Laxman, 1980)

Intoxication
Involuntary intoxication under the IPC Section 85. Incapacity to know the nature
of his act, Incapable of knowing that the thing he was doing was either wrong or
contrary to law, Intoxication without knowledge or against will

Voluntary intoxication under the IPC Section 86 where there is a presumption of

particular knowledge or intent

In the case of Jethuram Sukhra Nagbhansi v. State, 1960 – nature of

intoxication n the basis of interpretation of ‘against the will’.

Compulsion
An act done by me against my will, is not my act
Defence of compulsion under Section 94 of IPC (except murder and
offences against the State punishable with death)
Defence of necessity (Section 81 of IPC) is based on the maxim ‘necessitas
vincit legem i.e., necessity overcomes law.
Necessity as a reason for homicide – R v Dudley and Stephens, 1884

Legally Abnormal Persons

Persons who are not invested with the same responsibility for their acts as are
those whom the term as legally normal owing to some peculiarity in themselves.
e.g.,

The Sovereign: Based on the doctrine that the sovereign or government

cannot commit a legal wrong and is immune from civil suit or criminal
prosecution
Infants: Incapacity to understand the nature and consequence of an act or
omission – basis exempting a child below seven years from criminal liability
(Section 82 of IPC)
Insane persons: A complete defence to criminal liability in offences
involving mens rea. Insanity in IPC Sec. 84. Every type of insanity is not a
legal insanity unless the cognivance faculty is destroyed as a result of
unsoundness of mind. Baburam Mahali v. State of West Bengal, 2005

Possible parties to the crime

Classification of crimes for the purpose of determination of parties to Crime.
They are: 1. Treasons 2. Felony 3. Misdemeanors

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Treasons
No legal distinction between the various recognized modes of taking part in the
commission of such offences.

Slightest share in treason is regarded as heinous

No activity in a misdemeanor is considered as heinous and no formal
distinction between it and any less prominent mode of taking part in the
offence
All persons who are concerned in it in any way – whether by actually
committing it or even by keeping near in order to assist while it is being
committed or merely suggesting it are classed together

Felony
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Notice will be taken of the gradations of participation in them

Four categories of guilty association with a felony:

Principal in the I degree

Actual offender: The person whose guilty mind is the latest blamable mental
cause of the criminal act. In most of the cases the person who actually done the
act.

Exceptions:

Doctor asking nurse to administer poisonous substance as drug to kill a

patient
Using child to commit felony
Using animal to commit any felony

More than one Principal of first degree:

Dishonest servant who unlocks the door of master’s house to commit

burglary with others
Father and mother for allowing a child’s death due to starvation
A man holds the victim and the other person cuts his throat

Principal in the II degree (Aiders and Abettors)

The person who aided and abetted at the very time when the offence is
committed.

Car owner sitting beside the driver who kills by over – fast driving
Bigamist second spouse
Receiver of stolen property

Accessories before the fact;

He knows the particular deed contemplated

He approved it
His views are expressed in such a form which encouraged the principal to
perform the deed
The person is absent at the time when felony is committed
These things happened before the offence is committed
A person who procure, counsel, commend or abet the commission of
offence

Accessories after the fact

He knows that the felony has been committed

He shelters or relieves any felons
Enable him to elude justice
Supplies the felons the means to escape

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Helps the felons to get out of the prison

Active assistance to felons is necessary
Wife’s immunity for helping husband who is a felon

Misdemeanors
A misdemeanor, a criminal offense that is less serious than a felony. It is is
generally punishable by a fine or incarceration in a local jail, or both. Many
jurisdictions separate misdemeanors into three classes: high or gross
misdemeanors, ordinary misdemeanors, and petty misdemeanors.
Credits;http://www.grrajeshkumar.com/class-notes-on-criminal-law-i-1st-sem-3-
year-ll-b/
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Labels: crime, criminal liability, Mental Element Of Crime (Mensrea)

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