HomeEssential Elements of A Criminal Offence under Common Law

Actus Non Facit Reum Nisi Mens Sit Rea


It is a Latin Maxim which states that the general principle is that one cannot be said to commit a criminal act unless one has a guilty mind.

Under the Indian Penal Code 1860, we can see that most of the acts in the code have words like reckless, negligent, intentional, and knowledge attached to them. These are the words that signify the guilt of the mind.

This is a general principle, however, there can be specific statutes which criminalize acts without the requirement of the guilty mind. These will be strict liability offences.

Actus Reus and the legal distinction between act and omission


As per Section 32 of the Indian Penal Code 1860, “In every part of this Code, except where a contrary intention appears from the context, words which refer to acts done extend also to illegal omissions.” Thus, an act done will not include every omission, it will include only those omissions which are illegal.

As per Section 43 of the Indian Penal Code 1860, “A person is said to be “legally bound to do” whatever it is illegal in him to omit.’’ Thus, an omission will be illegal and liable for punishment when there is a legal duty to do the act.


Causation is the connection or link between the act of the accused and the result of the act. There are different tests used by courts to determine causation.

Novus Actus Interveniens: A new intervening act between the act of the accused and the result. If this new intervening act is what mainly led to the result, it breaks the causal link between the act of the accused and the resulting harm caused to the victim.

The two steps to establish the causal link between the act of the accused and the resulting effect is to establish factual causation and legal causation.

The ‘but for’ test is used to establish factual causation while legal causation is established if the connection between the cause and the effect produced is sufficient and substantial.

In R v. Roberts, the defendant was convicted for causing bodily harm after the victim jumped out of his moving car when he attempted to make sexual advances at her. It was held that since the intervening voluntary act of the victim was a natural consequence of the act of the defendant, it would not break the causal link. It would only break if the victim’s intervening act was unforeseeable in the eyes of a reasonable person.‣In R v. Smith, the victim, after being stabbed by the victim, was dropped down twice by the people taking him to the hospital and was treated with negligence by the hospital, before finally succumbing to the injuries. It was held that the act of the accused need not be the only cause, it is enough if it was an operating and substantial cause.

We can see the interplay of factual and legal causation, along with intervening acts through the above cases.

Mens Rea: As mentioned earlier, the general principle requires, along with a criminal act, a criminal intent. Mens rea is the second and mental component of a crime, without which the act is not a crime in general. Mens Rea includes intention, foresight, negligence and recklessness.

Intention: When the motive is to be determined, the appropriate question would be ‘What?’ and ‘Why?’. However, when the intention is to be determined, the appropriate question would be ‘How?’. The culpability of the act depends on how motive is achieved, that is how motive is intended to be achieved. The act intended is the only consideration to determine culpability.

Foresight: Foresight is, “the ability to judge correctly what is going to happen in the future and plan your actions based on this knowledge.” Thus, foresight is being conscious or aware of the possible results of a certain act.

Recklessness: For recklessness, a subjective approach was first taken in R v. Cunningham, in which it was held that an act will be reckless if the accused could foresee the risk and still went ahead with the act taking a chance of risk.

In R v. G, this approach was taken with a slight modification which required that the chance of risk taken by the accused must be unreasonable.

Negligence: Negligence is when there is no foresight of risk by the accused but the same is expected of him as a reasonable person would have foreseen the risk. The standard of care and awareness here should match that of a reasonable person.

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