General Issues

General

The more serious crimes have both an act and a mental element.  The “act” is the act and entire consequences, which constitutes the prohibited behaviour.  The mental element is the requisite degree of intention, recklessness, or carelessness, which must accompany the act in order to constitute the crime.

In the case of the more serious, it is usually necessary that they are intended, or there is recklessness as to the outcome.  It may be a less serious crime if it is committed recklessly rather than with intention.

The most obvious example is murder and manslaughter.  Murder requires an intentional act. The same act, accompanied by recklessness or a high degree of negligence, would constitute manslaughter.  The same act with a minimal degree of negligence or no negligence may not constitute a crime at all. It may constitute a civil wrong.

Many regulatory type offences do not require proof of a mental element at all.  Once the prohibited act occurs, the offence has been committed. There is so-called strict liability.    However, even in these cases, it may be possible, for example, to show that the actions were involuntary and in no way the responsibility of the person accused.

The act and intent are usually required.  Where the element of intentionality or recklessness required by the offence is not present, the act without the relevant element of intentional, recklessness, or negligence would not be a crime.

If there is no act, but merely an intention or mental element there will not be a crime.  Even a crime of attempt and conspiracy to commit an offence requires some “act.”

Possession

Possession is an element in many strict offences.  Possession of drugs and prohibited substances constitutes an offence in itself. It is enough to show that the person was in control of the prohibited thing.  The possession may be actual or implied.

The concept is similar to that of possession in relation to movable property.  A person may be in possession of something if it is under his control, although not in his immediate physical possession.

If, however, a person has no knowledge of the matter, it cannot be under his control.  If a person reasonably believes something which he possesses to be a certain thing, but it is, in fact, a prohibited  thing, the courts are generally sympathetic to the view that he is not in “possession.”

Where something is found in somebody’s possession, this will give rise to an inference that he knew of it.  It would generally be a matter for the person concerned to prove that he had no knowledge of it. They would be presumed to be under his possession and control, unless and until he proves the contrary.

Omissions and Duties

Generally, omissions or failure to act are not criminal.  There is no general positive duty, for example, to save a stranger from drowning, even if this could be easily done. There may be circumstances where there is a duty to act, such as in the case of a child.

Numerous schemes of legislation create positive duties. Under the statutes concerned, there are positive obligations to do things. The failure to comply is an offence, even though it is an omission.  For example, failures to file Companies Registration Office and tax returns are an offence.

It is estimated that there are over 5,000 statutory offences in various pieces of legislation. They may be addressed to very specific sectors and entities. In many cases, there are offences that involve the failure to perform a duty.

There are many schemes that provide for investigative powers.  They include standard investigatory powers for the Gardai for more serious offences and special enhanced powers for terrorist “gangland” and drug trafficking offences. There are also numerous regulatory investigatory powers in particular areas, such as in relation to competition, tax, food safety, financial services and many others. In many cases, it is an offence to fail to answer certain put by gardai and authorised officers, in the particular area concerned.

In some instances, an omission or failure to act in the context of an earlier act may constitute a criminal act.  For a person who has caused a particular situation, there may be an onus — there is generally an onus on them to take steps to undo it.

Generally, an act must be at a minimum voluntary in order for it to be characterised as criminal.  An involuntary act, such as involving sleepwalking, may not be deemed to be the act of the person concerned.

Causation

Where a criminal offence involves, not the immediate action, but its consequences, it is necessary to prove that the defendant’s act caused the forbidden consequences or events.  Similar issues arise in relation to torts / civil wrong.

In a literal sense, a person may cause all acts or events which have happened, but for his behaviour. Sometimes the effective cause may be due to other and multiple factors and causes. Where common sense says that the effective cause of the event is not the defendant’s conduct, but some other factor,  then the defendant is not usually held responsible. It may be different if he has a duty under the relevant legislation, to avoid the consequence concerned.

In many cases,  the matter of cause and effect is one of inference from the circumstances.  There may be no direct evidence linking the defendant’s conduct with the thing that constitutes the offence.  However, a court or a jury can draw inferences from the facts, common sense, and its knowledge of the normal course of events.

Where there are multiple causes, the court or jury will determine which is the substantial and real cause. In some cases, a new act may intervene, which breaks the “chain” of causation.  If the new act is the effective cause of the prohibited conduct, then it may be determined that the defendant’s original conduct was not the cause.

The issue of the cause may arise in the context of the response of a victim.  The victim of an assault, for example, may injure himself in trying to escape. If the victim’s responses are one that is foreseeable and predictable, even if not probable,   then the defendant is likely to be held responsible.

The eggshell rule that applies in relation to the law of civil wrongs also applies to causation in the context of criminal responsibility. It is reasonable that the offender takes the victim as he finds him with his vulnerabilities. If a victim is affected more seriously by an act because of a pre-existing weakness, the accused is likely to be held to be responsible.