In my last few blog posts, we have been looking at mens rea and actus reus, focusing on how these are used to prove a defendant’s guilt and the tests that the prosecution uses to establish them. We also considered how negligence can play a part in proving (or disproving) the defendant’s guilt. In this week’s blog post, we will be considering some other rules that can affect mens rea and actus reus, the situations that they apply in and how they are proved. The first rule we will be looking at is the contemporaneity rule, which focuses on the coincidence of the mens rea and actus reus, followed by transferred malice, which looks at how mens rea can be transferred from an intended victim to the actual victim.
Contemporaneity Rule
The contemporaneity rule looks at the relationship between mens rea and actus reus, stating that they must occur at the same time. The defendant must have both at the same time or they will not be guilty of the offence. For example, if they consider stealing an item in a shop (mens rea), but decide not to, it is not then an offence if the item later falls in their bag and they keep it without noticing (actus reus). This rule is necessary to ensure that the justice system is fair and the two elements of a crime are present. If the contemporaneity rule did not exist, people could essentially be prosecuted with only the actus reus of the offence.
A good example of the contemporaneity rule is seen in Edwards v DDin (1976) 63 Cr App R 218, where the defendant was tried for the offence of theft. They had visited a petrol station and filled their tank, then asked the attendant to top up the oil and water in the car. While the attendant left to wash his hands, the defendant quickly decided to drive away with the full tank of petrol. It was decided that he was not guilty of theft, as he did intend to pay for the petrol when he originally filled the tank. The petrol became his property when it mixed with the petrol already in the tank, but he only formulated the mens rea after this, when the attendant left.
Sometimes, the court will view the actus reus as a continuous act to avoid an unfair or ridiculous outcome. For example, in Fagan v MPC [1969] 1 QB 439, the defendant accidentally parked his car on a policeman’s foot. At this point, the defendant was not guilty of a crime as it was a genuine accident, so there was no mens rea. However, once the defendant had rolled his car onto his foot, the policeman asked him to move his car. The defendant then told him he could wait and refused to move his car. By doing this, the defendant had formulated the necessary mens rea for the offence of battery by deliberately omitting to move his car and the actus reus was the continuing act of leaving his car on the policeman’s foot.
Transferred Malice
The doctrine of transferred malice is concerned with cases where the defendant’s actions have not harmed their intended victim, but have instead harmed a third party, or have harmed a third party as well as their intended victim. In cases like this, the mens rea is transferred from the intended victim to the person actually harmed by the defendant’s conduct. For example, if the defendant throws a stone at one person intending to harm them, but misses and hits another, this intent to harm will be transferred to the second person, meaning the defendant can be found guilty of a criminal offence. This is even applied to crimes such as murder, so if the defendant had intended to fatally shoot the first person, this intent could still be transferred if they missed and killed the second person.
One early example of transferred malice is the case R v Saunders (1573) 2 Plowd 473, where a man was found guilty of killing his daughter. He had a wife but wanted to marry another woman. He plotted to kill his wife by lacing an apple with arsenic and letting her eat it. However, his daughter ate the apple instead and died. It was decided that the defendant’s intent to murder his wife could be transferred to his daughter and he was declared guilty.
There are some exceptions to transferred malice. For example, it will not apply where the offence is a different one to the one the defendant had the mens rea for. In the case R v Pembliton (1874) LR 2CCR 119, the defendant became involved in an altercation and attempted to disperse the crowd by throwing stones at the people. He missed and struck a window, breaking it. As property offences are different crimes from offences against the person, his mens rea could not be transferred and he was found not guilty.
Wrapping Up
I hope that this series of blog posts helps you to understand some of the intricacies of criminal law, as this is a very interesting area. In my next blog post, we will be looking at strict liability in criminal law, so come back in two weeks for that!
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