Concurrence

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In Western jurisprudence, concurrence (also contemporaneity or simultaneity) is the apparent need to prove the simultaneous occurrence of both actus reus ("guilty action") and mens rea ("guilty mind"), to constitute a crime; except in crimes of strict liability. In theory, if the actus reus does not hold concurrence in point of time with the mens rea then no crime has been committed.

Contents

• Discussion
• The problem
• Single transaction principle
• English case law examples
• References
• Further reading

Discussion

Suppose for example that the accused accidentally injures a pedestrian while driving. Aware of the collision, the accused rushes from the car only to find that the victim is a hated enemy. At this point, the accused joyfully proclaims his pleasure at having caused the injury. The conventional rule is that no crime has been committed. The actus reus is complete, and no rule of ratification applies in the criminal law. Whereas in the law of agency, a principal may retrospectively adopt a transaction as if the agent had originally been authorised to conclude an agreement with a third party ("ratification" of the agent's decision), and so acquires liability under that agreement, an alleged criminal cannot retrospectively adopt an actus reus and acquire guilt. To be convicted, the accused must have formed the mens rea either before or during the commission of the actus reus. In the vast majority of cases, this rule works without difficulty.

Two types of concurrence in criminal law

1. Temporal concurrence – the actus reus and mens rea occur at the same time.
2. Motivational concurrence – the mens rea motivates the actus reus.

The problem

Not all events are limited to a particular moment in time. The normal physical rules of cause and effect may see a series of interlocking circumstances conspire to cause a particular injury. If the facts of the example above are slightly changed so that the accident occurs at night at a sharp bend on a very quiet country road; when the driver sees the victim lying in the road he simply leaves the unconscious person where he fell. Some hours later, when a second car innocently comes around the corner and kills the victim, the first driver is happily asleep in his bed. Thus, he argues that, at the time of the death, he had no mens rea and so cannot be guilty of homicide. This argument fails because of the so-called Single Transaction Principle.

Single transaction principle

Not all acts forming the basis of an actus reus are single, unconnected events. If a sequence of events is inevitably linked, it may be viewed as a single transaction. So long as the requisite mens rea is formed before the sequence begins, or during the sequence (before it ends), the accused will be liable.

In the previous example, the victim would not have died if the first driver had not abandoned him at a dangerous point on the road. The law will treat the actus reus as having started with the accidental injury and ended with the death. In Fagan v Metropolitan Police Commissioner (1969) 1 QB 439, a police officer ordered the defendant to park his car and he reluctantly complied. In doing so, he accidentally drove the car on to the policeman's foot and, when the policeman said "Get off my foot", said "Fuck you, you can wait" and turned off the ignition. ^[1] Because of the steel toe cap in his boot, the policeman's foot was not in actual danger, but the Divisional Court held that this could constitute a common assault. Albeit accidentally, the driver had caused the car to rest on the foot. This actus reus was a continuing state of affairs for so long as the car rested on the officer's foot and the mens rea was formed before the car was removed. Whether realistically or not, the officer apprehended the possibility of injury so the offence of common assault was complete.

A different way of justifying liability in this type of situation would be to consider an omission at the point in time that the mens rea is formed. In the first example, liability arises from the reckless omission to move the man, or willful blindness that he was in danger. In Fagan , liability arises from omitting to remove the car.

But not every factual sequence can be so conveniently recast as an omission. Suppose, for example, that A sees his enemy, B, and decides to attack him. A picks up a stick and begins to chase B who runs into a hotel, up the stairs and into a room, locking the door behind him. A hammers at the door, shouting threats. A then sees a fire axe in a glass case nearby. He tells B that he is going for the axe and will break down the door. When A walks away, B is so terrified that he jumps out of the window and breaks his legs. Even though A might not have had an immediate intention to injure B at the critical moment when B jumped, the fear was inspired with an appropriate intention and B would not have been desperate enough to jump had it not been for that fear. [It is fair to exclude liability when B's fear is entirely unreasonable given A's behaviour because B's self-induced injury will break the chain of causation].

This latter example raises a separate issue which is that it is sufficient to base a conviction on the presence of mens rea at some time during the occurrence of the events comprising the single transaction. The fact that the accused might mistakenly believe they have succeeded in the crime does not prevent a conviction. For example, suppose that A begins to strangle B and, believing B to be dead, abandons the "body" in nearby woods where B dies of exposure. A will still be convicted of the homicide even though the relevant behaviour of abandoning the body was not accompanied by a mens rea.

And for the sake of completeness, if A commits an offence with an actus reus and a mens rea, it will not affect liability that A subsequently repents the crime and effects restitution. Thus, if A steals goods from B but then returns them together with some money to make good the damage caused during the forced entry, this cannot change the fact that there was an actus reus accompanied by an appropriate mens rea. A crime was committed although the subsequent conscience-based behaviour would be a relevant consideration during the sentencing stage of the trial.

English case law examples

• Thabo Meli v R (1954) 1 All ER 373 (PC) Four defendants intended to kill their victim so they induced him to consume alcohol, struck him on the head and threw the "body" over a cliff to make the death appear accidental. Because they thought that the blow had killed him, there was no mens rea when they abandoned him and he died from exposure. The first act did not cause death but had the appropriate mens rea. The second act caused death but had no mens rea. But the Privy Council held that it was impossible to divide up what was really one transaction. The actus reus was said to be the series of acts and omissions with mens rea covering the initial stages.
• In R v Church (1965) 2 AER 72 during an argument, the defendant struck the victim and, mistakenly believing her to be dead, threw her into a nearby river where she drowned. He was convicted of manslaughter.
• In R v LeBrun (1991) 4 All ER 673, the defendant struck his wife during an argument outside their house leaving her unconscious. He then tried to drag her inside but, as he did so, her head struck the pavement, fracturing her skull and killing her. At first sight, this is distinguishable from R v Church because death was accidental, whereas Church was intentionally disposing of the "body". But, in attempting to drag his unconscious wife indoors, LeBrun was either trying to conceal his initial assault on her, or forcing her to enter the house against her wishes (this being the original reason for the argument). The trial judge had directed the jury to acquit if they concluded that LeBrun had been trying to help his wife when he moved her, and the Court of Appeal agreed that this would have broken the essential nexus between the two halves of the incident.
• In AG's Reference (No. 4 of 1980) (1981) 2 All ER 617 the defendant was struggling with his girlfriend and she fell over a landing rail on to the floor below. Believing her dead, he dismembered her in the bath to dispose of her "body". It was impossible to prove whether she had died in the original fall or whether he killed her by his subsequent actions. The Court of Appeal held that a manslaughter conviction was only possible if each of the defendant's acts was accompanied by the requisite mens rea for that offence. At the very least, there must be an unlawful act which was the cause of the ultimate death. It was not enough to establish criminal negligence only in the subsequent act of disposal. Hence, the prosecution had to disprove D's claim of accident, i.e. that he had merely pushed her away in a "reflex action" when she dug her nails into him in the struggle on the upstairs landing.
• Fagan v. Metropolitan Police Commissioner [1968] 3 All ER 442 The defendant accidentally drove his car onto a policeman's foot whilst the policeman was directing traffic, but then subsequently refused to move off during an argument with the policeman. It was held that the actus reus was not the single act of driving onto the foot, but continued as long as the car remained there. Once the defendant subsequently acquired the mens rea to harm the policeman, the crime was complete.

Related Research Articles

In criminal law, mens rea is the mental state of the crime committed and the legal determination of a crime may depend upon both a mental state and actus reus, like the designation of a homicide as murder is a matter of intention to commit a crime or in some jurisdictions knowledge that one's action would cause a crime to be committed. The mitigation of culpability under some established legal doctrines may reduce the severity of some criminal charges, and so mental state is an element of most crimes, other than crimes of strict liability.

Actus reus, sometimes called the external element or the objective element of a crime, is the Latin term for the "guilty act", which, when proving it before the court beyond a reasonable doubt in combination with the mens rea, "guilty mind", produces criminal liability in the common law-based criminal law jurisdictions of England and Wales, Canada, Australia, India, Kenya, Pakistan, South Africa, New Zealand, Scotland, Nigeria, Ghana, Ireland, Israel and the United States. In the United States, some crimes also require proof of an attendant circumstance.

In criminal and civil law, strict liability is a standard of liability under which a person is legally responsible for the consequences flowing from an activity even in the absence of fault or criminal intent on the part of the defendant.

In law, attendant circumstances are the facts surrounding an event.

In criminal law, the intoxication defense is a defense by which a defendant may claim diminished responsibility on the basis of substance intoxication. Where a crime requires a certain mental state to break the law, those under the influence of an intoxicating substance may be considered to have reduced liability for their actions. With regard to punishment, intoxication may be a mitigating factor that decreases a prison or jail sentence. Numerous factors affect the applicability of the defense.

In criminal law, criminal negligence is an offence that involves a breach of an objective standard of behaviour expected of a defendant. It may be contrasted with strictly liable offences, which do not consider states of mind in determining criminal liability, or offenses that requires mens rea, a mental state of guilt.

An attempt to commit a crime occurs if a criminal has an intent to commit a crime and takes a substantial step toward completing the crime, but for reasons not intended by the criminal, the final resulting crime does not occur. Attempt to commit a particular crime is a crime, usually considered to be of the same or lesser gravity as the particular crime attempted. Attempt is a type of inchoate crime, a crime that is not fully developed. The crime of attempt has two elements, intent and some conduct toward completion of the crime.

Fagan v Metropolitan Police Commissioner is a leading case that confirms the need for concurrence of actus reus and mens rea in most offences of the criminal law of England and Wales. It also advises realisation that a battery is ongoing will render the omission to act to remove that battery being inflicted a conscious battery, being sufficient concurrence.

In law, the principle of imputation or attribution underpins the concept that ignorantia juris non excusat—ignorance of the law does not excuse. All laws are published and available for study in all developed states. The content of the law is imputed to all persons who are within the jurisdiction, no matter how transiently.

In criminal law, intent is a subjective state of mind that must accompany the acts of certain crimes to constitute a violation. A more formal, generally synonymous legal term is scienter: intent or knowledge of wrongdoing.

Common assault is an offence in English law. It is committed by a person who causes another person to apprehend the immediate use of unlawful violence by the defendant. In England and Wales, the penalty and mode of trial for this offence is provided by section 39 of the Criminal Justice Act 1988.

The legal principle of vicarious liability applies to hold one person liable for the actions of another when engaged in some form of joint or collective activity.

In law, an omission is a failure to act, which generally attracts different legal consequences from positive conduct. In the criminal law, an omission will constitute an actus reus and give rise to liability only when the law imposes a duty to act and the defendant is in breach of that duty. In tort law, similarly, liability will be imposed for an omission only exceptionally, when it can be established that the defendant was under a duty to act or duty of care.

In criminal law, strict liability is liability for which mens rea does not have to be proven in relation to one or more elements comprising the actus reus although intention, recklessness or knowledge may be required in relation to other elements of the offense. The liability is said to be strict because defendants could be convicted even though they were genuinely ignorant of one or more factors that made their acts or omissions criminal. The defendants may therefore not be culpable in any real way, i.e. there is not even criminal negligence, the least blameworthy level of mens rea.

Manslaughter is a common law legal term for homicide considered by law as less culpable than murder. The distinction between murder and manslaughter is sometimes said to have first been made by the ancient Athenian lawmaker Draco in the 7th century BC.

R v Miller is an English criminal law case demonstrating how actus reus can be interpreted to be not only an act, but a failure to act.

English criminal law concerns offences, their prevention and the consequences, in England and Wales. Criminal conduct is considered to be a wrong against the whole of a community, rather than just the private individuals affected. The state, in addition to certain international organisations, has responsibility for crime prevention, for bringing the culprits to justice, and for dealing with convicted offenders. The police, the criminal courts and prisons are all publicly funded services, though the main focus of criminal law concerns the role of the courts, how they apply criminal statutes and common law, and why some forms of behaviour are considered criminal. The fundamentals of a crime are a guilty act and a guilty mental state. The traditional view is that moral culpability requires that a defendant should have recognised or intended that they were acting wrongly, although in modern regulation a large number of offences relating to road traffic, environmental damage, financial services and corporations, create strict liability that can be proven simply by the guilty act.

Under United States law, an element of a crime is one of a set of facts that must all be proven to convict a defendant of a crime. Before a court finds a defendant guilty of a criminal offense, the prosecution must present evidence that, even when opposed by any evidence the defense may choose, is credible and sufficient to prove beyond a reasonable doubt that the defendant committed each element of the particular crime charged. The component parts that make up any particular crime vary now depending on the crime.

Fault, as a legal term, refers to legal blameworthiness and responsibility in each area of law. It refers to both the actus reus and the mental state of the defendant. The basic principle is that a defendant should be able to contemplate the harm that his actions may cause, and therefore should aim to avoid such actions. Different forms of liability employ different notions of fault, in some there is no need to prove fault, but the absence of it.

Criminal law is the body of law that relates to crime. It prescribes conduct perceived as threatening, harmful, or otherwise endangering to the property, health, safety, and welfare of people inclusive of one's self. Most criminal law is established by statute, which is to say that the laws are enacted by a legislature. Criminal law includes the punishment and rehabilitation of people who violate such laws.

References

Further reading

• MacDonald. (1995). "The Twice Killed Corpse – A Causation Issue". *MacDonald. (1995). "The Twice Killed Corpse – A Causation Issue". Journal of Criminal Law 207. 207.
• Marston. (1970). "Contemporaneity of Act and Intention". 86 Law Quarterly Review 208.
• Mitchel. (1999). "In Defence of a Principle of Correspondence". Criminal Law Review 195.
• Wells, C. (1991). "Goodbye to Coincidence". New Law Journal 1566.