Liability for Offences Against the Person, Property Offences and Attempt (AQA A-Level Law): Revision Notes
Liability for Offences Against the Person, Property Offences and Attempt
Introduction
This note covers the fundamental principles of criminal liability in English law, focusing on offences against the person, property offences, and the incomplete offence of attempt. Understanding these core concepts is essential for both Paper 1 and Paper 2 of the A-Level Law examination, as they form the foundation of criminal law and apply across all criminal offences you will study.
Criminal liability requires the prosecution to prove two essential elements: the actus reus (the guilty act or conduct) and the mens rea (the guilty mind or mental element). Both components must be present for a defendant to be convicted of a criminal offence. If either element is missing, or if the defendant can successfully raise a defence, they will not be criminally liable.
Elements of criminal liability
Actus reus and mens rea requirement
Every criminal offence consists of specific elements that the prosecution must establish. The actus reus refers to the physical element or conduct required for the offence. This might involve an action, an omission, or a state of affairs. The mens rea refers to the mental element – what was going on in the defendant's mind at the time of the offence. This could be intention, recklessness, or (in some offences) negligence.
For a conviction to be secured, the prosecution must prove that the defendant committed the actus reus of the offence while simultaneously possessing the required mens rea. If the defendant has the actus reus but lacks the mens rea, they cannot be found guilty of that particular offence, although they might be convicted of a lesser offence with a different mens rea requirement.
If someone causes the death of another person but did not intend to kill or cause serious harm, they cannot be guilty of murder. However, they might instead be convicted of involuntary manslaughter if they were reckless or grossly negligent. This demonstrates that the specific mens rea requirement determines which offence applies.
Example: criminal damage
To illustrate how these elements work in practice, consider the offence of criminal damage under section 1 of the Criminal Damage Act 1971:
Worked Example: Criminal Damage Structure
- Source: Section 1 of the Criminal Damage Act 1971
- Actus reus: The defendant destroys or damages property that belongs to another person
- Mens rea: The defendant intends to destroy or damage the property, OR is reckless as to whether it would be destroyed or damaged
- Maximum sentence: Ten years' imprisonment
This structure applies to all criminal offences. When studying any offence, you should identify its statutory or common law source, its actus reus requirements, its mens rea requirements, and the available sentencing powers.
The offence of attempt
Legal definition and basis
Attempt is an incomplete or inchoate offence. This means the defendant tried to commit a crime but did not actually complete it. The law recognizes that someone who tries to commit an offence, even if they fail, should still face criminal liability.
Under section 1(1) of the Criminal Attempts Act 1981, a person commits the offence of attempt when they perform an act that is more than merely preparatory to the commission of an offence, with the intention of committing that offence. This statutory offence applies to almost all indictable and either-way offences, though there are some exceptions (such as attempting to aid, abet, counsel or procure an offence).
Actus reus of attempt
The actus reus of attempt is performing "an act which is more than merely preparatory" to committing the intended offence. This is a crucial threshold. Merely preparing to commit an offence is not enough – the defendant must have moved beyond preparation and begun to actually carry out the offence.
Whether an act is more than merely preparatory is a question of fact for the jury to decide. The courts have held that there must be some evidence that the defendant has "embarked on the crime proper" or moved from planning to execution. Simply getting ready, gathering equipment, or putting yourself in a position to commit the offence will usually be insufficient. There must be a direct step towards the commission of the full offence.
Mens rea of attempt
The mens rea for attempt is intention to commit the full offence. This is a strict requirement.
Critical Point: Recklessness and Attempt
Recklessness is never sufficient for the mens rea of attempt, even if recklessness would be sufficient for the completed offence. This is one of the most commonly misunderstood aspects of attempt.
This means that for offences where the mens rea can be satisfied by either intention or recklessness (such as criminal damage), a defendant cannot be convicted of attempt if they were merely reckless. They must have intended the result. This creates an interesting situation where the mens rea for attempt is sometimes more demanding than for the complete offence.
Worked Example: Attempted Criminal Damage
While you can commit criminal damage with either intention or recklessness, you can only attempt criminal damage with intention.
A person who is reckless about whether property is damaged cannot be guilty of attempted criminal damage, even though they could be guilty of the completed offence if damage actually occurs.
Defending crime: removing liability
Absence of mens rea
Even if the prosecution can prove that the defendant committed the actus reus of an offence, this alone is insufficient for a conviction. Without the required mens rea, the defendant cannot be found guilty. The prosecution must establish both elements beyond reasonable doubt.
This principle protects individuals who cause prohibited consequences accidentally or without the required mental state. For instance, if someone kills another person during a genuine accident where they had no intention to cause any harm and were not being reckless, they cannot be convicted of murder or manslaughter. Their lack of mens rea means they have not committed a criminal offence (though they may face civil liability).
General defences
Criminal law recognizes several general defences that can apply across different offences. These defences operate even when the prosecution has proven both actus reus and mens rea. If successfully raised, these defences lead to a complete acquittal and a 'not guilty' verdict.
For A-Level study, you must understand six key general defences:
- Self-defence and prevention of crime
- Duress by threats
- Duress of circumstance
- Insanity
- Automatism
- Intoxication
Categories of defences
These defences can be classified into two distinct categories based on their theoretical basis:
Capacity Defences
Capacity defences are those where the defendant argues they could not form the required mens rea due to their mental state or condition. These defences challenge whether the defendant had the mental capacity to be held criminally responsible.
Examples include:
- Insanity
- Automatism
- Intoxication (in certain circumstances)
Necessity Defences
Necessity defences are those where the defendant accepts they formed the mens rea and committed the actus reus, but argues they had a valid excuse or justification for their actions. The defendant's conduct was, in the circumstances, necessary or justified.
Examples include:
- Self-defence/prevention of crime
- Duress by threats
- Duress of circumstance
Understanding this distinction helps explain why these defences operate differently and why they have different effects on the burden of proof.
Proving criminal liability
Burden of proof
The burden of proof refers to who must prove what in a criminal trial. In criminal law, the fundamental principle is that a defendant is innocent until proven guilty. This presumption of innocence is a cornerstone of the English legal system and a basic human right.
The burden of proof rests on the prosecution. It is the prosecution's responsibility to present evidence to the court proving that the defendant committed both the actus reus and the mens rea of the offence charged. The defendant does not have to prove their innocence; rather, the prosecution must prove guilt.
This means the prosecution must:
- Prove every element of the actus reus of the offence
- Prove the defendant had the required mens rea
- Disprove any defence raised by the defendant (in most cases)
The defendant need only raise enough evidence to put a defence "in play" – once a defence is raised, the burden generally remains on the prosecution to disprove it.
Standard of proof
The standard of proof refers to how convincing the evidence must be for a conviction. In criminal law, the prosecution must prove the defendant's guilt beyond all reasonable doubt (sometimes expressed as "beyond reasonable doubt" or "so that you are sure").
This means the jury or magistrates (depending on whether the trial is in the Crown Court or Magistrates' Court) should only convict if they are satisfied by the evidence that they are sure of the defendant's guilt. If they have any reasonable doubt about the defendant's guilt, they must acquit.
This is not absolute certainty – the law recognizes that absolute certainty is rarely possible. However, it must be more than mere suspicion or probability. The jury must be convinced to a high degree of certainty before they can return a guilty verdict.
Comparison with civil law
The criminal standard of proof is significantly higher than the standard used in civil law. In civil cases, the claimant need only prove their case "on the balance of probabilities" – meaning it is more likely than not that their version of events is correct (a standard of 51% or more).
This higher standard in criminal law is justified because of what is at stake. In criminal cases, a conviction can result in the defendant losing their liberty through imprisonment, as well as suffering serious consequences for their reputation and future prospects. Given these severe consequences, the law requires a higher degree of certainty before someone can be convicted and punished.
This protection reflects the seriousness with which the law treats criminal sanctions and the importance of avoiding wrongful convictions.
Exam guidance
When answering questions on criminal liability:
For problem questions: Always work through the elements systematically. Identify the relevant offence(s), state the source (statute or common law), then analyse the actus reus and mens rea separately. Consider whether any defences might apply. Apply the law to the facts, using linking phrases such as "in this scenario" or "applying this to the facts". Reach a conclusion on whether liability is likely to be established.
For essay questions: When discussing burden and standard of proof, explain why these principles exist and their importance in protecting defendants' rights. Consider evaluation points, such as whether the high standard of proof makes it too difficult to convict guilty defendants, or whether it appropriately protects the innocent. You might also evaluate whether certain defences should shift the burden of proof to the defendant.
Common Error: Attempt and Recklessness
Remember that the mens rea for attempt is always intention, even if the full offence can be committed with recklessness. This is a common error. Make sure you explain that the act must be "more than merely preparatory" – don't just state this phrase without explaining what it means.
Technical terminology: Always use correct legal terminology. Say "actus reus" and "mens rea" rather than "guilty act" and "guilty mind" in your formal analysis, though you can explain these terms. Use "burden of proof" and "standard of proof" correctly and don't confuse criminal law terminology with civil law language (such as "claimant" or "balance of probabilities").
Key Points to Remember:
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Criminal liability requires both actus reus (guilty act) and mens rea (guilty mind) – both elements must be proven by the prosecution for a conviction
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Attempt is governed by section 1(1) Criminal Attempts Act 1981 and requires an act more than merely preparatory with intention to commit the offence; recklessness is never sufficient for attempt
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General defences can lead to acquittal even when AR and MR are present – they are categorized as capacity defences (defendant could not form mens rea) or necessity defences (defendant had an excuse)
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The burden of proof rests on the prosecution – defendants are presumed innocent until proven guilty
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The standard of proof in criminal law is beyond all reasonable doubt – higher than civil law because liberty is at stake
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The six A-Level general defences are: self-defence/prevention of crime, duress by threats, duress of circumstance, insanity, automatism, and intoxication