Ziva and Tony seem to have committed the acts of conspiracy to commit murder and attempted murder in their actions towards Tony. There is also the liability imposed on Ziva and Tony for the hurt caused to Abby when she is injured by the bomb they planted to kill Eli. The next issues to be considered are the liability Ziva has for the injury caused to Leon and her actions towards Eli. There is finally the issues of the criminal damage and burglary seemingly committed by Ziva and Tony. In terms of the possible criminal actions committed by Leon, his complicity in ensuring Eli will be at a certain location to enable him to be injured must be discussed. The maxim ‘actus non facit reum, nisi mens sit rea’ is applicable to all of these potential crimes given their nature, this can be defined as, “the act itself does not constitute guilt unless done with a guilty mind” [1] This work shall review the actus reus and mens rea of each of the offences the writer feels have been committed by the people involved in this fact file. Each of these potential criminal actions shall be considered in the order they occurred to ensure the overall clarity of the answer.

The planting of the bomb

Ziva and Tony could have committed the crime of attempted murder in this instance and to test this proposition the specific elements of the crime must be explored. Firstly, the actus reus of the act of murder needs to be defined and applied to their actions. Murder is a common law offence and “is when a person . . . unlawfully killeth . . . any reasonable creature in rerum natura under the Queen’s peace…” [2] Clearly in this scenario Eli has not been killed and so the act of murder has not been committed, however, the law holds that, “If, with intent to commit an offence to which this section applies, a person does an act which is more than merely preparatory to the commission of the offence, he is guilty of attempting to commit the offence” [3] . A review of this scenario shows that Ziva and Tony identified a location for the crime, obtained an explosive device, planting the device and finally Tony presses the remote control to detonate the bomb. Without recourse to case law it is apparent that the actus reus of the offence has been committed, it is now necessary to review the mens rea.

The classical definition of the mens rea required for murder is “malice aforethought” [4] , however, this has long been regarded as a rather archaic expression and the courts now define it as being, “an intention to kill or to cause grievous bodily harm.” [5] It is the case that planting a bomb for the purpose of destroying a vehicle with a person inside will be regarded as an intention to kill and so the mens rea is present for the offence of attempted murder.

In addition, there is the injury caused to Abby as a result of the bomb exploding later in the day and this could also give rise to the offence of GBH with intent. The Offences Against the Persons Act 1861 defines the actus reus of this offence as follows: “Whosoever shall unlawfully and maliciously by any means whatsoever wound or cause any grievous bodily harm to any person.” [6] The question arises is whether the harm caused to Abby amounts to GBH and this can be answered by a short review of applicable case law. Moriarty v Brookes (1834) 6 C & P 684 provides that for GBH to be proved, “the continuity of the skin must be broken.” [7] The more recent case of DDP v Smith [1961] AC 290 further clarified this definition, here is was held: “GBH means really serious harm and is a question of fact for the jury and can even include psychiatric harm.” [8] Applying Abby’s injuries to these definitions, the cuts caused to her arm, the internal bleeding, collapsed lung and ruptured spleen will certainly amount to GBH. The final issue is whether the requisite mens rea for the offence is present, this is defined as: “intent to do some grievous bodily harm to any person.” [9] Given that GBH with intent is a result crime, there must be a consequence to the unlawful act, meaning the court must be able to prove that the act of the accused was the cause of the crime. Ziva and Tony can therefore only be held responsible for results that are the factual and legal cause of their actions. It is necessary to show according to R v White [1910] that ‘but for’ the their actions the result of the offence would not have occurred; this is clearly proved in this instance. The second point is that even if factual causation is established, the judge must direct the jury as to whether their acts are sufficient to amount in law to a cause of the result of the offence. In this instance, an intervening act has occurred, namely another person has driven down the road where the bomb was located. Legal causation will be proved providing the intervening act is reasonably foreseeable; under the circumstances another car driving down a stretch of read would be held to be reasonably foreseeable and so would not break the chain of causation.

What is undeniable is that neither Ziva nor Tony intended to cause any harm specifically to Abby, however, by the operation of the doctrine of transferred malice they will still be liable for her injuries. This provides if a person has the mens rea of a particular crime and does the actus reus of the crime the person is guilty of the crime even though the actus reus may differ in some way from that intended. The mens rea is simply transferred to the new actus reus, either intention or recklessness can be so transferred. This position was confirmed in the seminal case of R v Latimer [1886] 17 QBD 359, where a person was found guilty of maliciously wounding a person with a belt even though they had intended to injury a different person. The application of the transferred malice doctrine should see both parties being guilty of the offence of GBH with intent.

Shooting Leon

There is clearly an act of GBH with intent that has been committed by Ziva when she decided to shoot Leon in the kneecap, given she had the direct intent to shoot him and carried through with this intent. The defence which could be raised to negate her liability in relation to this offence is one of consent, namely that Leon was happily consenting to be shot as he was being paid money. It is highly unlikely that the consent defence will be available in this instance, since the case of Brown [1993] 2 WLR 556 held that “consent was a defence to a charge of common assault but not to an assault occasioning actual bodily harm or serious bodily harm or a wounding unless a recognised exemption applied.” [10] It would therefore seem likely that as both the actus reus and mens rea of the offence have been committed, Ziva will be convicted of GBH with intent.

Injecting Eli

The injection of Eli with a saline solution is an interesting situation given the Ziva’s intent is to inflict a far greater injury than was indeed caused and indeed the injury she was intending to cause was impossible given the contents of the syringe. R v Shivpuri [1987] AC 1 makes it clear that the courts are entitled to convict a person if that person has the requisite intent to commit a crime and indeed believes they have committed the crime, despite the fact that the crime was impossible to commit. Therefore, arguably she has either committed a common law battery or the offence of attempted murder. A battery is when a person inflicts unlawful physical violence either intentionally or recklessly on another person. It is apparent from the facts that Ziva had the necessary intention to inject Eli with the syringe and so the offence is made out.

Leon’s Actions

Leon is arguably a secondary party to the offence committed when Ziva injected Eli with the saline solution. The Accessories and Abettors Act 1861 defines the required actions of an accessory as follows: “whosoever shall aid, abet, counsel or procure the commission of any indictable offence whether the same be an offence at common law or by virtue of any act passed or to be passed, shall be liable to be tried, indicted and punished as a principal offender” [11] . Given that the purpose of Leon being shot in the first place was to lure Eli to the hospital to visit him, to thus enable Ziva to kill him, it is likely that Leon will be held to be an accessory to the crime.

Ziva and Tony’s Burglary

When Ziva and Tony broke into Leon’s house to take back the money they gave to him, they have committee the act of burglary. Burglary is defined in the Theft Act 1968 and this Act states a person is guilty if, “he enters any building or part of a building as a trespasser and with intent to commit any such offence as is mentioned in subsection (2) below.” [12] In this scenario the relevant offence contained in subsection (2) is, “stealing anything in the building or part of a building in question.” [13] It is clear from the information provided that the purpose of breaking into Leon’s house was to steal something contained within an this is what Ziva and Tony have done; consequently the act of burglary has been committed.

Damage to Painting

The final criminal act committed by Tony is one of criminal damage. The Criminal Damage Act 1971 provides that: “A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence” [14] . The actus reus of the offence is clearly made out given Tony has drawn a moustache and spectacles on a 17th century portrait worth £175,000; this will certainly amount to criminal damage. In terms of the mens rea, all that is required is recklessness and the case of R v Cunningham [1957] held that what must be proved is that the person must have appreciated the risk involved when committing the actus reus. Clearly a person drawing on a painting will be aware that damage will be caused as a result; therefore the offence is made out.



Ormerod D (2008) Smith and Hogan Criminal Law (12th Edition) (Oxford University Press, Oxford 2008)

Dine J and Gobert J (2005) Cases and Materials on Criminal Law (4th Edition) (Oxford University Press, Oxford 2005)

Allen M (2006) Textbook on Criminal Law (7th Edition) (Oxford University Press, Oxford 2006)

Holtam J (2005) Criminal Litigation 2005-2006 (College of Law, London 2005)

Sanders A and Young R (2007) Criminal Justice (3rd Edition) (Oxford University Press, Oxford, 2007)

Online Resources (accessed via Lexis Nexis)

Lord Justice Hooper QC (Editor) – Blackstone’s Criminal Practice 2010 (LNUK, London 2009)

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