Actus Reus - Lecture notes All PDF

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Important notes on Actus Reus - Includes all the cases in the syllabus as well ...

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ACTUS REUS Actus reus is the conduct element of an offence. It relates to what the defendant has done (or failed to do so), in what circumstances, and with what consequences. The three elements of the actus reus are:  Behaviour  Consequence  Circumstance Not all of these are required for every offence. Conduct crimes require proof that D did the act, there need not be a result (ex: possession). Result crimes require proof that D performed an act and that the act produced a certain result (ex: murder). Larsonneur (1933) 149 LT 142 D was a French subject permitted to be in the UK under certain conditions. One of these conditions was for her to leave the UK on a specified date. L left the UK on the date and went to the Irish free state. She was detained by Irish police and brought back to the UK without her own will and was consequently guilty of being found in the UK.  The offence was found to be strict liability offence (no mens rea or fault element)  Even though the actus reus happened to D, D is still guilty. The case is highly criticised since it imposes a situational liability and D need not have fulfilled the actus reus and mens rea since they did not exist. OMISSIONS Sometimes a voluntary act is not needed to satisfy the behaviour requirement of a crime and an omission will do. The general rule is that if the behaviour is specified in the actus reus of an offence, it can only be satisfied by a positive act of D and not by D’s omission. However, there are certain exceptions to this general rule. Some crimes cannot be committed by omissions. These are statutory crimes which in their definition require an act to be committed. Liability for omissions is restricted because the behavioural element has been specified precisely by statute. However, when an offence is unspecific as to the manner of behaviour required, it should be possible to commit that offence by omission. Exceptions to the general rule will often arise when D has a duty to interfere and prevent harm. These duties are: 1. Statutory duties These occur if the statute expressly imposes liability for an omission. Examples are failing to provide a breath specimen when required to do so by a constable and failing to provide legally dependent children with food/medical care/clothing/lodging. Some common law offences, though few, also provide specific offences of omission. An example is refusal to assist a police officer when called to restore the peace. A final possibility is when the statutory offence has no behaviour element specified and only proof of certain events/circumstances is necessary. These indirectly impose liability for D’s omission to prevent the outcome. 2. Assumed duties (duties of persons with special relation to the victim) Assumed duties occur when a person voluntarily assumes responsibility for another’s welfare, expressly or impliedly. Some duties such as the duty of a parent to a child arise automatically. Although the duties of a parent are set out in statute, the common law duties are much wider and prima facie apply to any offence. When the child reaches legal maturity this duty comes to an end. Children do not owe legal duties to their parents. It is generally assumed that spouses and long term partners owe a duty to assist each other if they are in peril. The courts are also willing to impose duties on friends of disabled people for their well being.

Stone and Dobinson [1977] QB 354

Stone was a man of low average intelligence who was partially deaf and almost blind. Dobinson was S’s mistress who was inadequate/ineffectual. D and S lived with S’s mentally subnormal son. S’s sister Fanny came to live with S/D. V was anorexic and within three years became so ill that she would not leave her bed. D attempted to take her food, wash her, and tried to contact a doctor. They did not inform the social worker or make any further attempt to contact medical experts. V eventually died and S/D were convicted.  Attempt to help V is an assumption of duty of care and therefore responsibility if V suffers.  After a duty of care is established, it can be breached by a reckless disregard of danger to V’s health/welfare by indifference to it or running the risk regardless. Mere inadvertence is not enough.  It must be shown that D was indifferent to the risk or foresaw the risk but decided to run it. 3. Contractual duties (duties of persons assuming particular responsibilities) A person may be under a contractual duty to help another. In such a case there will be an act required under the contract in which an omission will be a breach of contractual duty and constitute a criminal offence. These are civil law obligations that give rise to contractual duties. Doctors have contractual duties to patients under their care. A doctor may not kill by a positive act but may withdraw care by judicial approval from a patient in persistent vegetative state. Their duty is not to keep the patient alive, but to make reasonable efforts to do so in accordance with proper medical practice, only as far as it is in the patient’s best interest. Pittwood (1902) 19 TLR 37 D was employed as a gatekeeper on a railway line. One day he failed to perform his duties and did not close the gate when required. This led to an accident in which a train hit a cart and a man was killed. It was held that D was liable for manslaughter.  If D is required under a contract to do a certain thing, his omission in failing to complete the duty was in breach of his contract and could constitute a criminal offence. Airedale NHS Trust v Bland [1993] AC 789 Bland, at the age of 17 was injured in the Hillsborough disaster and was in a persistent vegetative state. Unanimous medical opinion was that there was no hope of improvement. 3 years following the incident B’s family and the consultant in charge sought declarations to discontinue life support.  Principle of sanctity of life is not absolute.  Aim of medical treatment is to benefit the patient and doctors are not under a duty nor entitled to carry out medical care when it is no longer in the best interest of the patient.  An omission to perform what had previously been a duty is lawful.  The best interest of the patient is broad/flexible as to allow judgment by doctor in determining discontinuance of life support.  Liability exists only where there is a duty of care. 4. The Continuing Act Doctrine Occurs when the defendant brings about an actus reus without mens rea but then, while the harmful consequence continues, intentionally omits to remedy or discontinue it. (see: Fagan v MPC below) 5. Creation of danger (special relationship to the harm) A legal duty to take measures that lie within one’s power to counteract a danger arises when one has oneself created the danger. Danger are those that threaten the interests protected under criminal law. So unless D interferes his earlier act will bring about a positive harm. A failure to prevent the risk will not itself constitute an offence and must be accompanied by the mens rea elements. Since the Miller principle imposes a liability for omission, it cannot apply to offences that cannot be committed by omission. The principle is also based on D’s own causation/creation of the actus reus. In an alternate case, D did not cause the risk since V had injected herself with heroin. The case made clear that Miller type duties could arise when a person not created, but contributed to the state of affairs. Simester and Sullivan view this as an overextension of the duty and should be confined to cases in which D materially contributes and intentionally fails to prevent the consequence of a risk arising from intervention by the victim. Miller [1983] 2 AC 161 D who was a vagrant, was living in an unoccupied house. He fell asleep with a cigarette in his hand, which dropped and set fire to the mattress and set it alight. D woke up to see it smouldering but took no action to

stop the fire. Simply moving to another room. The house caught fire and damages of £800 were caused. D was found guilty of arson.  If D is initially unaware that he has done an act, which by the time he becomes aware of it presents a significant risk, he will be guilty of the offence if, when he does become aware that the events are a result of his own act. He does not try to prevent/reduce the risk.  Failure to act can give rise to criminal liability.  The reason why D has not taken preventative action could be because he has not given any thought or just decides not to prevent/reduce it.  Caldwell recklessness applies. Distinguishing acts and omissions Ashworth states: “although there are some clear cases of omission and some cases of act, there are many ambiguous cases in which the act-omission distinction should not be used as a cloak for avoiding the moral issues.” It is generally held that acts require certain bodily movements whereas omissions do not. There is normally no punishment for omission as prohibiting omissions rules out much more options that does prohibiting acts. However, liability for omissions does not depend solely on the act/omission distinction but also on the issue of duty to interfere. This distinction is important especially in medical law. The two main points is that a doctor cannot force treatment on a competent patient who refuses consent even if the patient will die and if a patient is unable to express a view his doctor must act in his best interest. The best interest of a patient may not always be the treatment that will extend his life. The courts have held that for doctors to bring about death by legal injection would be murder but switching off life support was omission rather than an act and doctors did not have legal duty to prolong treatment of a patient when it was no longer in the best interest to do so. (See: Airedale NHS Trust) Omissions as Causes Omissions do not initiate causal processes. Instead they permit other processes to bring about the harm. D will normally be responsible for the consequence of an omission when he is under a duty to prevent the consequence from occurring and his omission to interfere makes a difference. Prosecution must show, beyond reasonable doubt that D’s intervention would (not might) have made a difference. It must be proved that D’s omission caused death. Even if it can be shown that D’s omission caused the harm, it will not be a legal cause if there is a novus actus. D’s omission is also subject to the requirement of salience. Omissions as Interventions An omission cannot be a novus actus interveniens. When D fails to prevent harm, the omission may be a legal cause of the harm but will normally be considered as a concurrent cause.

VOLUNTARINESS Voluntary act requirement: Most crimes cannot be committed without D performing a voluntary act. However, some offences can be committed through omission, a state of affairs, or through the actions of another. D cannot be held liable for the occurrence of an actus reus unless he was responsible for it (its occurrence is in some way attributable to D). There are two ways in which D can lose deliberative control over her behaviour: impaired consciousness or loss of physical control. In these cases her actions are not responsive to reason. Loss of Physical Control Occurs when behaviour is involuntary. The movements do not occur under the person’s control and he cannot prevent its occurrence. Hence, there is no responsibility for the actus reus. Examples are: reflex movement, muscle spasms, a third party forcing the movement. Impaired Consciousness Involuntary behaviour in criminal law are known as automatism. When D’s actions are the product of impaired consciousness, they are considered to be automatic. In these cases D might be unconscious or semiconscious. The greater the degree of consciousness D has, the greater deliberative control D will have over

his actions. Apart from sleepwalking and hypnotism, standard cases of semi-conscious conduct qualify as automatic and involuntary. These are done in a state of concussion, dissociation, and advanced stages of hypoglycaemia. The defence of automatism requires a total destruction of voluntary control on D’s party. Impaired, reduced, or partial control is not enough. Semi-conscious actions can be automatic because they all involve a complete loss of deliberative control. However, where D does intend to commit a crime, however clouded and confused D’s awareness is, automatism is excluded. Sane Automatism: straightforward denial of voluntariness and thus an outright acquittal. Insane Automatism: a species of insanity in which there is a special verdict and a different burden of proof upon the defendant. Involuntariness and Omissions Lex cogit ad impossibilia: the law does not compel a man to do that which is impossible. If D’s fails to discharge a duty to intervene because it was impossible to do so, her omission is considered to be involuntary and her responsibility for the actus reus is negated. In cases in which D would not have complied with the law even if possible, it is important to distinguish between involuntary behaviour and unavoidable consequences. There is a difference between denying responsibility for a consequence of omission on the basis of causation (in which it has to be proven that if D had intervened the consequence would not have occurred; woman watching her child be swept away by the tide), and denying responsibility for the behaviour on the basis of involuntariness (man stuck under rubble after earthquake cannot reach his daughter). Derogation from the general rules occur when the omission involves a strict liability offence. These occur when D choses to engage in a specialist, risk creating activity and brings himself within the criminal law duty. Sometimes D may be held criminally responsible even if the actus reus occurs involuntarily. This is vicarious liability. Also, D may be liable for an offence if his involuntariness is the consequence of an earlier conduct in which D was at fault. Examples of this are: voluntary intoxication (since automatism is self induced) and recklessness (occurs when D foresees the risk that he might become aggressive, unpredictable, and uncontrolled as to cause injury to others; the standard of subjective recklessness is required).

CRIMES WITHOUT BEHAVIOUR ELEMENTS These offences penalize the defendant on the basis of the situation in which he is in. The circumstances make up the harm that criminal law is meant to address and so specify the actus reus solely through the circumstances. There are two main kinds of crimes without behaviour elements: 1. Situational offences The actus reus of the crime is an event/circumstance that is connected to the defendant. There is no need to provide any act or omission on behalf of the defendant but he must be somehow connected to and responsible for the actus reus. This creates the potential for over broad criminalization and therefore the legislation needs to contain liability to defences in which D is able to control the prohibited situation. It follows the doctrine of innocent agency that if A causes B (child/insane) to cause harm to another, A can be criminally responsible for the consequences of B’s act. Vicarious liability is a type of situational liability in which an employer under certain circumstances is criminally responsible for the acts of an employee. The most debated case in this area is Larsonneur since the actus reus happened to D, not because of anything she did. This is widely criticized since language used in many situational offences do not require a fault element on the part of the defendant and impose strict liability.

Unless there is a requirement of voluntariness, situational offences are at odds with criminal law. English law admits the existence of situational offences when there is no formal necessity to prove an act or omission by the defendant. 2. Crimes of possession Possessory offences have been created by statute and cannot be found in common law. These are especially related to controlled drugs, weapons, and tools of crime. Possession is criminalized as a convenient substitute for the harm that might occur through the use of the thing possessed. By criminalizing the earlier stage, an offence is created of the behaviour which might otherwise not even be an attempt for the ultimate crime. There is no formal requirement for an act or omission by D so no proof of behavioural elements are required. However, most possession crimes can be explained in terms of an implicit act or omission by the defendant.

CAUSATION It is an actus reus requirement in all result-crimes that the accused’s act or omission ‘cause’ the relevant result. Though not unique to homicide offences, the principles governing causation have mostly been laid down in cases involving death. For some crimes it is necessary to show not only that D performed the act but that the act caused a particular consequence. Consequences are circumstances/events/states of affairs which are the result of (caused by) D’s behaviour. There is no need for D’s act to in any immediate physical sense cause the consequence but that there is a causal link from D’s behaviour to the consequence. The main underlying idea in causation is that each person is responsible for his or her act. There is no doctrine of collective social responsibility in English criminal law. Factual Causation/rule of thumb/’but for’ causation This is not legally binding and has nothing to do with whether or not true legal causation exists. D’s act is a but for cause of a result, if, but for D’s act, the result would not have occurred. It is a far too wide criteria for causation. It is instead a proposition of logic. ‘But for’/sine qua non test: Would the consequence specified in the actus reus have occurred but for the defendant’s behaviour? If it would not have occurred except for the defendant’s acting as he did, them prima facie his behaviour caused that consequence. If the consequence would have occurred anyway, causation may not exist. This is subject to the de minimis exception. R v White [1910] 2 KB 124 W gave his mother poison. Before it could take effect, however, she died of an unrelated heart attack. W was guilty of an attempted murder. But he did not commit murder because the poison played no role in his mother’s death. He was instead convicted of attempted murder. The case established the ‘but for’ test. R v Cato [1976] 1 All ER 260 D purchased heroin and invited V to use it. Each prepared his own solution and injected each other. V then died from an overdose. D was convicted of manslaughter and administering noxious thing. Held that there had been an unlawful act and this had caused the death. Legal Causation A legal cause must be operating and substantial. There may be several operating and substantial causes of a result.  Substantial: contributing to the end result in a significant extent, subject to the de minimis exception.  Operating: (causal salience) D’s act must still be in effect. The biggest defence to operating cause is to suggest a break in the chain of events ( novus actus interveniens). It is enough that the consequence can be attributed to D’s conduct as a, not the cause. The test is to ask whether or not D’s contribution at the time of the consequence was substantial (significant) and operating. There is no requirement that D’s conduct was sufficient on its own to cause the prohibited consequence.

Intervening Causes Sometimes D’s contribution is followed by an act by another or a coincidental event that is the more immediate cause of death which displaces D’s causal responsibility for the actus reus. When a later event displaces D’s responsibility it is called a novus actus interveniens. If the prohibited consequence is attributable to a novus actus, D will not be liable for bringing about that consequence. Third party interference breaks the chain of causation if T’s act is ‘free, voluntary, informed’ and D’s act is no longer substantial and operating. Generally held that the omission of a third party cannot break the chain of causation. When the victim acts, it will only break the chain if V’s reaction was not reasonably foreseeable. The reaction must also not be ‘daft’. The jury must consider if V’s response might have been expected as a result of D’s ac...