Structure and Function in Criminal Law

By Paul H. Robinson | Go to book overview

3
Offence Requirements

The most basic organizing distinction of offence requirements in current law has been the actus reus-mens rea distinction. The Chapter begins with an exploration of the weaknesses of and the potential for confusion in the use of that distinction. It advocates that use of the distinction be abandoned. The Chapter then offers as a replacement an alternative threepart conceptualization of offence requirements, distinguishing what it calls objective, culpability, and act-omission requirements. Each of these three groups of doctrines is then examined. The current conceptualization of each is summarized and refinements of it suggested.


A. THE CONCEPTUAL DIFFICULTIES OF THE ACTUS
REUS-MENS REA DISTINCTION

Many criminal lawyers, judges, and law teachers see the distinction between actus reus and mens rea as one of the most basic of criminal law.1 Along with the offence-defence distinction, it helps us organize the way we conceptualize and analyse liability. It is said to be 'the corner-stone of discussion on the nature of criminal liability'.2 And, the concepts of actus reus and mens rea have 'justified themselves by their usefulness'.3 This section argues that this most basic organizing distinction is not coherent. Rather than being useful to criminal law theory, it is harmful because it creates ambiguity in discourse and hides important doctrinal differences of which criminal law should take account.

No doubt the actus reus-mens rea distinction is a logical and natural extension of the obvious empirical difference between an actor's conduct, which we can directly observe, and the actor's intention, which we cannot. In the simple case, the actor shoots another person, with the intention of injuring him. Both the actor's conduct and intention are prerequisites to liability. The concepts of actus reus and mens rea adequately capture these

____________________
1
See generally Paul H. Robinson, 'Should the Criminal Law Abandon the Actus Reus-Mens Rea Distinction?' in S. J. Gardner Shute, and J. Horder (eds.), Action and Value in Criminal Law ( Oxford, 1993).
2
A. C. E. Lynch, 'The Mental Element in the Actus Reus' ( 1982) 98 LQR 109 at 111.
3
Lynch v. DPP for Northern Ireland [ 1975] AC 653 at 690.

-16-

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Structure and Function in Criminal Law
Table of contents

Table of contents

  • Title Page iii
  • General Editor's Introduction vii
  • Preface ix
  • Acknowledgements xiii
  • Contents xv
  • Part I - Introduction 1
  • 1 - Structure and Function in Criminal Law 3
  • Part II - The Current Operational Structure 9
  • 2 - The Basic Organizing Distinctions of Current Law 11
  • 3 - Offence Requirements 16
  • 4 - Principles of Imputation 57
  • 5 - General Defences 68
  • Part III - A Functional Structure 125
  • 6 - A Functional Analysis of Criminal Law 127
  • 7 - The Rules of Conduct 143
  • 8 - The Doctrines of Liability 157
  • 9 - The Doctrines of Grading 171
  • Part IV - Using Structure to Advance Function 183
  • 10 - Drafting a Code of Conduct 185
  • 11 - Drafting a Code of Adjudication 196
  • Appendices 211
  • Index 241
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