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CRIMINAL LAW NOTES – ACTUS REUSChapter 2 The basic requirement for criminal law is that there is prohibited conduct (the external element) and accompanying mental element( the internal element).  This is based on a Latin maxim called actus non facit reum nisi mens sit rea. Which literally means ‘a...

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CRIMINAL LAW NOTES – ACTUS REUS Chapter 2  The basic requirement for criminal law is that there is prohibited conduct (the external element) and accompanying mental element( the internal element).  This is based on a Latin maxim called actus non facit reum nisi mens sit rea. Which literally means ‘an act is not criminal in the absence of guilty mind.  The actus reus of any crime constitutes the package of behavior which forms the substance of a criminal prohibition.  The mental element is also known as the internal element, the mens rea, the guilty mind or the fault element.  So when ever you are faced with any criminal activity there can three possible areas you need to consider, firstly what is the actus reus of the offence, secondly that the actus reus most coincide with the relevant mens rea (mental element) and finally are there any possible defenses for the actions or the intention of the defendant.  The actus reus of a crime comprises conduct, with or without a designated result, including the presence of any circumstances necessary for that conduct to be criminalised.  Mens rea is generally the state of mind of the person who did the act, it can be intentional, recklessness, dishonesty, knowledge and belief etc.  The third element in criminal liability is that of criminal defenses. Defenses block criminal liability although the elements of the offence (actus reus and mens rea) are present. Some of the more common defenses are self defense, insanity, consent, duress and necessity.  Woolmington v DPP the House of Lords had to consider whether the fact that the actus reus was satisfied meant that the burden was placed on A to prove that the killing was an accident.  The general presumption is that someone’s bad intention i.e mens rea cannot alone make them guilty in case where they are unable to complete their evil thoughts. However in case of R V. Dadson the court adopted a different approach where Dadson was the police constable who shot the victim who was already an escaping felon. Thus D shooting him was not illegal but his not knowing made it problematic and therefore D was held liable.  The burden of proof lies on prosecution to prove beyond reasonable doubt before the jury that the defendant committed the act and that he or she had the relevant mental state to do so. Negating the possible defenses is also the responsibility of the prosecution.

Chapter 3 Conduct and Circumstances:  The actus reus in crime compromises conduct which always has to be present, secondly that the conduct was wrongful (if any required) and finally the result from that conduct (this is usually in the case of resulting crimes, explained further in notes).

 The ‘act requirement’ of the offence requires the prosecution to prove that the defendant did a wrongful act. There are two components of the act, firstly there has to be bodily movement secondly that bodily movement is voluntary.  In Bratty v A-G for Northern Ireland HL, Lord Denning explained this as follows: “No act is punishable if it is done involuntarily: and an involuntary act in this context... means an act which is done by the muscles without any control by the mind, such as a spasm, a reflex action or a convulsion; or an act done by a person who is not conscious of what he is doing, such as an act done whilst suffering from concussion or whilst sleepwalking...”  Generally the law provides general rule and exceptions in almost all situations. The general rule regarding criminal law is that there is act and that act is involuntary. However there are three exceptions to this general rule. These are known as Situational crimes, crimes of possession and crimes of omission.  Statutory crimes of omission are the ones, which requires are us to do something and omission of that would result into sanction. Typically the words of statue will expressly create a duty to act in a particular way. E.g failing to submit tax returns.  Criminal liability may also on occasion be based upon being in possession of a prohibited article; for example controlled drugs, extreme pornography, offensive weapons or articles for use in terrorist offences. These again are statutory crimes and are known as crimes of possession. Examples are R v. Warner (case in which D had two boxes given to him one had scent and other had controlled drugs) R v. Lewis, R v. McNamara  Finally situational crimes are generally those crimes which requires the defendant been found in the prohibited situation. (e.g being drunk in public). R v. Larsonneur and Winzar v. Chief constable of Kent. R v. Elvin (case of dog escape)  Can there be liability in crimes of commission (which requires us to do something) by omission (failure to do something) e.g Murder. It this point it is important to understand the difference between conduct and result crimes (Although we will have detailed discussion on it later) Conduct - the conduct itself might be criminal. Eg. the conduct of lying under oath represents the actus reus of perjury. It does not matter that whether the lie is believed or if had any effect on the outcome of the case, the actus reus of the crime is complete upon the conduct. Examples of conduct crimes Perjury, Theft, Making off without payment, Rape, Possession of drugs or a firearm etc. Result - The actus reus may relate to the result of the act or omission of the defendant. The conduct itself may not be criminal, but the result of the conduct may be. Eg it is not a crime to throw a stone, but if it hits a person or smashes a window it could amount to a crime, Causation must be established in all result crimes. Examples of result crimes, Assault, Battery, ABH, Wounding and GBH, Murder & Manslaughter, Criminal damage Key requirements for criminal liability To ensure the net of criminal responsibility is not spread too far, there are certain key restrictions on criminal liability in cases of harm caused by omission.

1. The conduct element of the crime in question must be capable of commission by omission. (R v. Bland), (Pretty v. DPP) As long as the definition of the crime does not specify a particular mode of commission it is no objection that the crime is defined in such a way as to imply an active mode of execution. (DPP V. Santa Bermudez.) 2. The circumstances must be such as to create a legal duty to act: In (R v. Kenny’s )it was held “no one is held criminally responsible at common law for the harmful consequences of his omission to act, whether that omission be careless or intentional, unless the prosecution can prove that he was under a legal obligation to take action in the particular circumstances in which he was place. Parents are under legal duty of their children (R v. Gibbins and proctor) Where there is a contractual duty. (R v. Pittwood, R v. Instan, R v. Smith) Informal assumption of duty (R v. Stone and Dobinson, R v. Bonnyman) The duty to avert a dangerous situation caused by the defendant. (R v. Miller) D was squatting at someone’s house and slept there without stubbing his cigarette, fire broke out, D was charged of arson. 3. The defendant’s failure to act must be in breach of that duty. 4. The defendant’s failure to act must be voluntary. 5. The harm must be caused by the omission.

Chapter 4: Causation  Causation refers to the enquiry as to whether the defendant's conduct (or omission) 

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caused the harm or damage. Causation must be established in all result crimes. Causation in criminal liability is divided into factual causation and legal causation. A basic rule of thumb is that where a person‘s voluntary act initiates a causal sequence which ends in harm, that person will normally be held accountable unless an act or event later transpires which renders a finding of accountability inappropriate. The idea is that D’s actions have ‘caused’ both in fact and in law the result of the crime he committed. In almost all result crimes caution must be proved. The Draft Criminal Code Bill 1989, clause 17 of which is intended to be a restatement of the common law position defines causation. (Please read clause 17 from guide book) To be accountable for the result crime the defendant must be shown to be factual cause of the harm, and for it to be appropriate to attribute that harm. i.e to say that D must be the factual and the legal cause of the harm in question. The court of appeal held in R v. Pagett that its should normally be enough to direct the jury that the accused’s act need not be the sole cause, or even the main cause, of the victim’s death, it being enough that his act contributed significantly to that result.

Causation in Fact:  Factual causation is established by applying the 'but for' test. This asks, 'but for the actions of the defendant, would the result have occurred?' If yes, the result would have occurred in any event, the defendant is not liable. If the answer is no, the defendant is liable as it can be said that their action was a factual cause of the result.  H.L.A Hart and Honoré describe a factual cause as: an event or act which ‘makes the difference’ between something happening and something not happening.  But for test was established under the case of R v. White, but for the act of the defendant’s action the consequence would not have occurred as and when it did.  Consider the case R v. Dyson [1908] 2 KB 454 a child was admitted to hospital suffering from injuries suffered after his father had beaten him severely. At the time of his hospitalisation the child was suffering from meningitis. The child died of his injuries. Medical evidence was adduced to show that he would have died of meningitis before long. D was charged and convicted of manslaughter. He appealed on the ground that he was not a but for (factual) cause of V’s death since the child would have soon died of meningitis anyway. The court said that it was not necessary to show that D was the sole cause of death so long as his action accelerated the time when death would otherwise occur. Causation in Law  When establishing legal causation, the accused need not be the sole or even the main cause of the harm or victim’s death but it must be a significant cause of the result. To be a legal cause, the defendant’s contribution to the result must be substantial, although it need not be the sole cause. Even if a result would not have occurred but for D’s acts, it is appropriate to ask to what extent D’s acts significantly contributed to the result. The criminal law ignores trivial causes. For example, in Adams (1957) a doctor gave his terminally ill patient a dose of painkillers so strong that it killed the patient. Devlin J ruled that if the dose were given for pain relief in accordance with the doctor’s duty it would not be the doctor but the disease, which was the real cause of death. The doctor’s contribution could be ignored as negligible.  R v. Mitchell, R v. Dalloway, R v. Adams, R v. Cox, Re C, R v. Benge  In case of R v. McKechnie, D was held liable after he beat an elderly man and doctors refused to operate him as the victim was suffering from ulcer which later caused his death. Victim’s Physical and mental condition: The general principle here is that you must take your victim as you find him/her. This was established in ‘Eggshell Skull Rule’. (State v. Frazier). The same principle was applied in the case of (R v. Murton) and (R v. Hayward) Supervening acts of third parties Can, on occasions, break the chain of causation linking a but for cause to a consequence. However, these occasions are rare.

1. The chain of causation would not break when the act of third party is not substantial and D’s act is still the main cause of harm. (R v. Smith)- stabbed in lung, on the way fell two times. In Smith it was held; “if at the time of death the original wound is still an operating cause and a substantial cause, then the death [is] the result of the wound, albeit that some other cause is also operating. Only if it can be said that the original wounding is merely the setting in which another cause operates can it be said that the death does not result from the wound. Putting it in another way, only if the second cause is so overwhelming as to make the original wound merely part of the history can it be said that death does not flow from the wound.” 2. Act of third parties reacting to the danger caused by D, (R v. Pagget)- D was using his girlfriend as a human shield. 3. Negligent medical treatment does not break the chain of causation (R v. Cheshire [1991]) V died because negligent operation however D was still held liable. Supervening acts of Victim: Supervening acts of the victim exacerbating the harm When V does something or refuse to do something after they been hurt by D, and D’s harm is still the substantial and operative cause, and due to this V die, D is liable. (R v. Holland) (R v. Blaue) Escape attempts: by V where V is put in danger doesn’t break the chain. ( R v. Roberts)- D was sexually assaulting V who jumped out of car. (R v. Williams and Davis) – Reasonable foreseeability is required. Suicides: R v. Dhaliwal : where a decision to commit suicide has been triggered by a physical assault which represents the culmination of a course of abusive conduct, it would be possible...to argue that that final assault played a significant part in causing the victim’s death. Breaking the chain of Causation- Novus actus interveniens Novus actus interveniens simply means new and intervening act. This new intervening act can break the chain of causation. In R v. Jordan the court held that the intervening causal contribution of a third party was so powerful and independent of the initial wrongful act of the defendant that that act was no longer fairly treated as the cause of death. However these new and intervening acts must be 1. Voluntary, 2. Independent of initial act, 3. Sufficient in itself to cause the harm suffered by the victim. ( R v. Rafferty). The contentious issue arises in provision of drug cases, where V takes drug from a supplier injects it himself and dies. Is the supplier liable for death of V ? this was answered in the case of R v. Finlay , the court of appeal held here that the supplier had caused the death because it was foreseeable that the recipient would self inject. Further in R v. Kennedy , the test is not whether the victim’s act was foreseeable but whether it was voluntary. A free and informed choice to self inject the drug breaks the chain of

causation. It would not be free and informed if the victim lacked mental capacity or did not know of the strength of the drug. Intervening events can also break the chain of causation considering that 1. They are abnormal, 2. Independent of D’s act(i.e. a complete coincidence),and sufficient in itself to cause the death or other harm. (Bush v Commonwealth) (R v. Corbett)...