[go: up one dir, main page]
Scribd
Upload
57 views7 pages

Understanding Actus Reus: Possession

This document discusses the actus reus, or prohibited conduct, in criminal law. It focuses on different forms of conduct such as acts, words, possession, and omissions. Possession can be actual or constructive. Actual possession requires physical control, while constructive possession requires control over another person who has physical control. For possession to exist, one must be aware of the existence of the object but not necessarily its precise nature or qualities. The mental element, or mens rea, of possession requires knowledge of having the object but courts differ on whether knowledge of the object's contents is also required.

Uploaded by

Catherine Flanagan
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as PPTX, PDF, TXT or read online on Scribd
57 views7 pages

Understanding Actus Reus: Possession

This document discusses the actus reus, or prohibited conduct, in criminal law. It focuses on different forms of conduct such as acts, words, possession, and omissions. Possession can be actual or constructive. Actual possession requires physical control, while constructive possession requires control over another person who has physical control. For possession to exist, one must be aware of the existence of the object but not necessarily its precise nature or qualities. The mental element, or mens rea, of possession requires knowledge of having the object but courts differ on whether knowledge of the object's contents is also required.

Uploaded by

Catherine Flanagan
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as PPTX, PDF, TXT or read online on Scribd
You are on page 1/ 7

Criminal Law

Topic 4 – Actus Reus I:


Prohibited Conduct
Forms of Conduct
• Acts
• Majority of criminal law
• Words
• Eg, perjury
• Possession
• Controlled drugs, weapons, pornography, etc.
• Omissions
1. Possession
• Minister for Posts and Telegraphs v. Campbell (1966):
• “In my opinion a person cannot, in the context of a criminal case, be properly
said to keep or have possession of an article unless he has control of it either
personally or by someone else. He cannot be said to have actual possession
of it unless he personally can exercise physical control over it; and he cannot
be said to have constructive possession of it unless it is in the actual
possession of some other person over whom he has control so that it would
be available to him if and when he wanted it.”
• Actual possession v. constructive possession
Actual Possession
• Typically, a person will be deemed to have control of objects on his person, in his car and in his house
• People (DPP) v. Foley (1995)
• Raid on a bedsit in Dublin – Foley on the bed close to a shotgun; revolver on a heating unit; bag of
guns
• “While the presence of an article beside an accused person may not necessarily always give rise
to an inference of possession, nevertheless this principle should not be used to distort reality.
The existence of the sawn-off shot gun within grab distance, or at least near the accused on the
bed as well as the proximity of the ammunition and the pistol are circumstances from which
the Court was entitled to deduce that the Applicant was in possession of the firearm ….”
• Temporal limitation?
• Simon and Todea v. Governor of Cloverhill (2004):
• Refugee Act 1996
• 9(8): Where an immigration officer or a member of An Garda Siochana, with reasonable cause, suspects that an [asylum-seeker] … is in possession of forged identity
papers …[that person may be detained]

• Even momentary possession is sufficient


• People (DPP) v. Finnegan and Morrison (2011)
Constructive Possession
• People (DPP) v. Rattigan (2018)
• Def in possession of drugs in Walkinstown while a prisoner in
Portlaoise Prison

• Proof by inference
• Foley v. R v. Whelan (1972)
Mental Element of the Actus Reus
• Campbell – defendant must be aware of existence of the object
• R v. Hehir (1895) CCCR (Irish)
• “When Joseph replaced in his brethren's sacks, without their knowledge, the price of the corn they
had bought, though they had apparent dominion and control over the sacks with their contents, they
were no more, before discovering it, in possession of the money which Joseph had put in by an act of
trespass, than they would have been of dynamite secretly placed there.”
• People (DPP) v. Byrne, Healy & Kelleher (1998)
• Mere physical possession, in the absence of an intention to possess is not possession in the legal
sense.
• People (DPP) v. Ebbs (2011), citing McAuley and McCutcheon (at 215):
• “While knowledge is essential to establish possession the law draws a distinction between knowledge
of the existence of the item in question and knowledge of its characteristics and qualities. … [I]t is
clearly settled that knowledge of the former type is all that is required to establish possession. This
knowledge is an element of the actus reus of the offence, not the mens rea.”
Mens Rea of Possession
• Knowledge of the nature of the article?
• English courts – R v. McNamara (1988)
• Proof that defendant had possession of the container, was aware of that fact, and was
aware that the container contained something (thought it was pornography)
• Irish courts: unclear
• People (DPP) v. Healy, Byrne and Kelleher (1998) (upholding McNamara)
• People (DPP) v. O’Shea (1983); People (DPP) v. Kelly (1996) (suggesting some knowledge
of contents)
• People (DPP) v. Tanner (2006) (willful closing of eyes)

You might also like