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Distinguishing Between Crimes and Torts: Legal Concepts and Consequences

  1. Crime is a punishable offence under the criminal law, involving a criminal wrong by one person against the other. The elements of a crime are mens rea (criminal intention) and actus reus (criminal act or omission). A crime is a public wrong prosecuted by the state.
  2. Tort is a civil wrong for which the wrongdoer can be made to give a remedy to the other party. Generally, the remedy may be in the form of unliquidated damages to compensate the person for his loss. A tort is a private wrong and the affected party needs to file an action against the tort feasor in a civil court.
  3. The burden of proof refers to the party which needs to prove the facts that are in issue before the court. In the cases involving offences, the burden of proof is on the prosecution, which must prove the guilt of the accused beyond a shadow of doubt. The defence has the burden of proof of proving the defences that the accused is claiming. Burden of proof may involve legal burden, that is, the obligation on a party to prove the fact-in-issue; and evidential burden, that is, the obligation to adduce sufficient evidence.The standard of proof refers to the degree of persuasiveness required from the evidence in order to discharge the burden of proof.

2. Summarising elements of crime:

Physical and mental elements

The two necessary elements in criminal conduct are physical and mental elements. Physical element is an actus reus or an unlawful act. Mental elements is the mens rea or the intention to commit the criminal act. Actus reus is also called the conduct element of the crime and it is characterised by an act or an omission that leads to the criminal conduct. Mens rea, that is the mental element can be characterised by intention, recklessness or negligence of the accused. Different crimes require different mentes reas. Some crimes (strict liability offences) do not require mens rea to be proved at all.



Recklessness as an element in crime involves conduct on the part of the accused without the thought to any risk that is involved in such conduct to

  • Jonathan Herring, Criminal law: text, cases, and materials: Text, Cases and Materials (Oxford University Press 2014) 69.

someone else. In MPC v Caldwell, the court held the defendant’s conduct to be recklessness because he did not give any thought to the possibility of risks involved in the conduct followed by him. At times, where the defendant recognises the risk involved and that does not prevent him from indulging in the acts, the conduct would be considered to be reckless. The test for adjudging recklessness is whether such a risk would be conceived by a reasonable person. For recklessness to be sustained against the accused, it is necessary to prove that a reasonable person would have realised the risk involved in the conduct.

Strict liability

Strict liability offences are held to be committed when the accused exhibits prohibited conduct and such offences do not require the proving of blameworthiness of the accused. In other words, there is no requirement to prove mens rea for the accused to be convicted for such offence. Strict liability offences are found in statutes, where the parliament has not prescribed mens rea element and in common law as well. Unless the statute specifically prescribes strict liability, the court presumes mens rea element for the offence.

3. Features of robbery

Robbery involves use of force by the robber at the time of theft or immediately preceding theft. This is what distinguishes robbery from theft. The Theft Act 1968, section 8 defines robbery as a theft which accompanies use of force or threat of use of force as against the victim. There are therefore, two features or elements of robbery. First, the accused must have committed a theft, wherein the mens rea and actus reus elements of theft need to be proved. Second, the person committing the theft must have put the victim in fear of use of force at the time of or immediately preceding the theft. The force should be used only for the purpose of effecting the theft and even a minimal use of force can suffice for the offence of robbery.

  • [1982] AC 341.
  • R v Seymour [1983] 2 AC 493.
  • R v Adomako, [1994] 3 WLR 288.
  • Callow v Tillstone, (1900) 83 LT 411.
  • Jonathan Herring, Criminal law: text, cases, and materials: Text, Cases and Materials ( Oxford University Press 2014) 214.
  • Ibid, 535.
  • R v Dawson [1976] Crim LR 692.

4. Essential features of gross negligence manslaughter

Gross negligence manslaughter relates to causing death by an act or omission which falls short of the standard of care required of a reasonable person therefore becoming worthy of criminal punishment. In R v Adomako, a four stage test was laid down by the House of Lords for outlining the necessary elements of a gross negligence manslaughter. These are: duty of care to the deceased by the defendant; breach of that duty of care; breach of duty becomes the cause of the death of the victim; and the breach of duty is grossly negligent, making it a crime. Other than these elements, it is also required that the actions of the accused must have been voluntary and that the death of the victim must be directly attributable to the accused.

5. General defence raised by Mr. Malbey and Mr. Simmonds

The general defence being raised by Mr. Malbey is that of intoxication. Mr. Malbey is saying that unless he was drunk, he would not have committed the assault against the other customer who gave him a black eye at the bar.

Mr. Simmonds can raise the general defence of duress. Duress can be of two kinds, which are, duress by threat and duress by circumstances. Mr. Simmonds’ case involves duress by threat because he has been told that unless he commits the robberies, he shall be “put in the hospital”.

6. Main general defences

The general defences are those that can operate to create a defence against most crimes. These general defences are insanity, mistake, automatism, and self defence. Intoxication can be a defence to all offences requiring proof of basic intent if the intoxication is involuntary. It can be a defence in a case requiring proof of specific intent, even if it is. Duress can also be a defence in most offences barring murder, attempt to murder and treason.

7. Summarising specific defences to murder

The offence of murder is defined by the common law as the unlawful killing, with malice afterthought, resulting in the death of the victim. Manslaughter is also an unlawful killing but without malice afterthought. Therefore, for manslaughter, the

  • (1994) 3 All ER 79.
  • Jonathan Herring, Criminal law: text, cases, and materials: Text, Cases and Materials ( Oxford University Press 2014) 662.
  • Terence Morris and Louis Blom-Cooper, Fine Lines and Distinctions: Murder, Manslaughter and the Unlawful Taking of Human Life (Waterside Press 2011) 105.

defendant has committed the act but without mens rea. The defences that can be raised for murder cases can be complete defences (automatism, self-defence), where the accused can be completely freed from the guilt of murder; and partial defences, which are different than complete defences, being: diminished responsibility, loss of control and killing in pursuance of a suicide pact. Intoxication does not by itself negate mens rea. A person who deliberately drinks himself into intoxication does not have a defence of lack of capacity. This was held to be the case in Attorney General Northern Ireland v Gallagher. If the person had an intention to commit murder and then drank a lot to imbibe confidence to commit the crime, the defence of intoxication cannot save such as person from being charged for murder.

8. (a) Type of manslaughter for Mr. Bailey

Manslaughter can be committed in any of the following ways: (a) killing with the intent for murder but due to loss of control, diminished responsibility or killing pursuant to a suicide pact; (b) gross negligent manslaughter; and (c) unlawful act manslaughter where the killing happens due to the unlawful and dangerous conduct of the accused, although the accused may not have intended death of a person due to such conduct. Therefore, manslaughter can be voluntary involving the commission of murder under mitigating circumstances such as provocation or diminished responsibility. Manslaughter can be involuntary, where the accused does an unlawful killing without possessing mens rea for murder. Finally, manslaughter can be negligent manslaughter. Mr. Bailey’s case shows that he has committed a gross negligent manslaughter because he threw over the person onto the platform while the person was unconscious and any reasonable person would have understood the risk involved in such an action. He may however claim mitigating circumstances with respect to being intoxicated at the time.

(b) Mr. Bailey and Mr. Malbey: defence for intoxication

If a person is voluntarily intoxicated when committing an offence, he will be generally regarded as being reckless and if the person intended to commit the crime when he was intoxicated, the person will be considered to have intention to commit the

  • A Ashworth and J Horder, Principles of criminal law (Oxford University Press 2013) 194.
  • [1963] AC 349.
  • Ibid.
  • R v Bateman (1925) 19 Cr App R 8.

crime. In the case of Mr. Malbey, he definitely had the intention to assault the other customer who had given him a black eye and was building up his courage by drinking, so that he cannot take the defence of intoxication. With respect to Mr. Bailey, his intoxication may be used by him as a partial defence to murder reducing the charge to manslaughter as he was drunk at the time and had lost control over his actions.

Mr. Bailey so drunk is not responsible for his actions

If Mr. Bailey can show that he was so drunk that he did not know what he was doing, then he may plead a successful intoxication defence for murder. In R v Dowd, the court held that unless the person was so drunk that he was not capable of forming the intent to commit murder, he would not be able to use the defence of intoxication. In other words, if a person is incapable of forming an intent to kill due to intoxication, he shall not be guilty of murder.

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Offences Against the Person Act 1861, s.18: Mr. Malbey

The Offences Against the Person Act 1861, s.18 provides that a person who unlawfully and maliciously wounds or causes grievous bodily harm to any person with intent to do some grievous bodily harm to any person, is guilty of the offence. As per the decision in DPP v Majewski, voluntary intoxication is a defence in offences of specific intent but not basic intent. Section 18 offence is a specific intent offence because the mens rea goes beyond actus reus. If Mr. Malbey had been charged with the offence under section 18, then he could have taken the defence of intoxication as this is a specific intent crime. If he shows that he was so drunk that he did not know what he was doing, the defence would have to show that he was incapable of forming the intent. However, it is also noteworthy that the intent was formed before the intoxication.


  • Ashworth A and Horder J, Principles of criminal law (Oxford University Press 2013)
  • Herring J, Criminal law: text, cases, and materials: Text, Cases and Materials ( Oxford University Press 2014)
  • Jonathan Herring, Criminal law: text, cases, and materials: Text, Cases and Materials ( Oxford University Press 2014) 133.
  • Attorney General Northern Ireland v Gallagher, [1963] AC 349.
  • [2012] EWCA Crim 281.
  • [1977] AC 142.
  • Morris T and Blom-Cooper L, Fine Lines and Distinctions: Murder, Manslaughter and the Unlawful Taking of Human Life (Waterside Press 2011)

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