Generally, there are two elements to every offence.
- “Actus reus”—the guilty act. The Crown must prove a voluntary act was committed by the accused. It canbe classified as the doing or action part of the offence. For instance, this would be the theft of property, or the application of force on someone.
- “Mens rea”—the guilty mind or intent. Did the accused intend that act to occur? Or, did the accused know that he or she did not have the consent of the victim before committing an assault?
In a murder case, an individual could be charged with negligence instead of murder if they did not have the intent to murder. For instance, in the case of mental incapacity, or insanity as it is known, the person may be found not guilty because they are not able to form the mens rea for the crime. Also any child under the age of seven does not have the ability to reason and form intent and therefore cannot be charged under the Youth Criminal Justice Act. Both elements must be present in order for the person to be found guilty. However, although the majority of offences require a mental element or mens rea, some do not (see list below). Where mens rea is required it consists of two parts: the awareness of the act, and the intent or knowledge. However, the accused does not have to know that it is an offence. It is enough that the act was intentional.
Offences may be divided into three categories for purposes of determining the mental element required:
- “True crimes” or full mens rea offences: require a positive state of mind which the prosecutor must prove. Such offences will usually contain such words as intent, knowledge, or recklessness. These include such crimes as murder or sexual assault for which the penalties are greater and there is a greater stigma placed on the accused.
- Strict liability offences: the prosecutor must prove that the accused actually committed the act but the accused can then avoid liability by showing that he or she took all reasonable steps to avoid committing an offence. This is otherwise known as the due diligence defence.
- Absolute liability offences: the prosecutor only has to prove that the accused committed the act. There are no defences available to the accused and it is no defence to show that she or he took all reasonable steps to avoid committing the offence. Very few offences fall into this category but examples would include speeding or going through a red light while driving.