Elements of Criminal Liability 1 PDF

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ELEMENTS OF CRIMINAL LIABILITY 1: ACTUS REUS EXTERNAL ELEMENTS OF OFFENCES Essential reading: Wilson (2011), chapter 4 Dine, Gobert and Wilson (2010) Further reading: Clarkson and Keating (), chapters 2 and 4. Ashworth, chapter 4. Williams Textbook of Criminal Law (1983), Chapter 7. Smith & Hogan (), pp. 31-55 A T H Smith, "On Actus Reus and Mens Rea" in Reshaping the Criminal Law, Glazebrook (ed.), 1978. Norrie (2001), chapters 6 and 7 Simester and Shute Criminal Law Doctrines of the General Part (OUP) 2002. W Wilson Central Issues in Criminal Theory (Hart) 2002 **, chapter 3,4, 6, 8 General The offences we tend to think of as being 'real' crimes (e.g. murder, theft, assault) contain three basic elements. Criminal liability for these ‘core’ crimes requires the prosecution to a. prove that the defendant has satisfied the conduct element of the offence definition; (this requirement applies also to strict liability crimes). b. prove that the mental element of the offence is present (ie prove fault/blame); c. disprove any defence in support of which the defendant adduces evidence (this requirement applies also to strict liability crimes). These requirements give us the basic equation for criminal liability which is Harm + fault = liability. This equation is often represented in the following latin quotation actus non facit reum nisi mens sit rea. This gives us the technical term for the conduct element in criminal offences which is actus reus, otherwise known as the external elements or the conduct element. The technical term for the mental element is mens rea, otherwise known as the mental element, the fault element, or the internal element. These three elements of all offences (actus reus, mens rea and defences) will be examined in the context of homicide and criminal damage. The general points made are applicable to all crimes. A large number of statutory crimes - called strict liability crimes - do not have condemnation and punishment as their object but seek to regulate our conduct to ensure the smooth and safe running of society. Minor traffic offences are obvious examples. These offences do not require the defendant to have been at fault, ie to have a mental element in relation to the conduct element. It is enough that they do something which is prohibited. It is not necessary for them to be blameworthy. The external elements of a criminal offence includes a. conduct, b. circumstances (if any are required), c. result (if any is required).

Some crimes are conduct only offences, eg careless driving. Some require conduct and circumstances eg driving (conduct) while disqualified (circumstances). Many crimes require conduct and result (eg causing death by dangerous driving). Many others require conduct, circumstances and result eg criminal damage which involves conduct (act), result (damage to property), circumstances (the property belongs to someone else). The prosecution must prove every element in the crime definition. For a good recent example of how this can produce an unexpected acquittal see R v McGee [2012] EWCA Crim 613

1. Conduct Normally the conduct element in crime consists of some affirmative and voluntary conduct by the accused. If a person disobeys a traffic signal under the influence of a heart attack, or fails to inform the police that next door's house is being burgled there will be no criminal liability. This general principle is subject to exceptions. Sometimes criminal liability does not require action. Inaction may be sufficient.

Omissions and Situational Liability Sometimes the fact that the defendant has not done something is the very reason why we might wish to punish:

A. The conduct element of many statutory crimes is an omission or state of affairs, e.g. being drunk in charge of a vehicle (state of affairs) or failing to report a traffic accident (omission). The essence of such crimes is that a person is being punished for his conduct, not for some harmful result which may or may not have occurred. There is no objection to such crimes so long as the person is given fair warning of what he has to do to discharge his duty.

B. Some result crimes may be committed by omission when there is a strong expectation that the defendant should have intervened to prevent the result occurring. So murder can be committed by a parent failing to feed her baby if the failure is designed to kill. Objections can arise here for a number of reasons:

I. The definition of most result crimes normally implies or expresses some positive conduct on the part of the accused. Is it legitimate to convict a person for, say, unlawful wounding where his wrong consists simply of a failure to prevent the wound being inflicted e.g. a prison jailor who knowingly fails to prevent a prisoner stabbing another? 2. Result crimes require proof of causation. How can one cause anything by doing nothing? Does the prison jailor who fails to prevent a violent beating of an inmate 'cause' the prisoner to be injured? 3. Result crimes require proof of fault. Definitional fault normally consists of intention or recklessness. If A sees his next door neighbour's child drowning in a puddle of water and does nothing to prevent it because the experience gives him pleasure, is it accurate to say that he therefore intends to kill the child, as we might if he had pushed her head under the water and held her there?

4. The point of criminalising behaviour is generally thought to be to promote human freedom and autonomy. We punish murderers not just because they are wicked but because they attack the victim's life. Punishing omissions is itself an interference with human freedom and autonomy since it requires us to subjugate our own interests to those of others. Is this not inconsistent with the point of the criminal law? (i)

Omissions

Further reading:

W Wilson Central Issues in Criminal Theory (Hart) 2002 **, chapter 4, J C Smith, (1984) 4 Legal Studies 88 Ashworth, "The Scope of Criminal Liability for Omissions" (1989) 105 L.Q.R 424 Williams, "What should the Code do about Omissions" (1987) 7 Legal Studies 92 Williams, "Criminal Omissions - The Conventional View" (1991) 107 L.Q.R 86 Law Commission Report No. 177 (1989) and cl.17 in Draft Criminal Code Bill Alexander ‘Criminal Liability for Omissions’ in Simester and Shute eds. Doctrines of the General Part (2002) Acts and Omissions Distinguished The essence of an act is some bodily movement. However this is not a foolproof test. It is not always easy to distinguish an act from an omission. If after a shipwreck A snatches the sole remaining life jacket before B can get it and B later dies of drowning has A committed the actus reus of murder (via the act of snatching) nor nothing at all? Hayward (1908) 21 Cox CC; Airedale v Bland (1993) AC 789; Shama (1990) 2 All ER 602; Ahmad [1986] Crim LR 739; Speck (1977) 65 Cr App Rep 161 The Duty to Act There can be no liability for omitting to act unless there is a duty to act. Such duties arise in different ways: 1. By contract Pittwood (1902) 19 TLR 37 2. By relationship R v Gibbins and Proctor (1918) 13 Cr App R 134; R v Bonnyman (1942) 28 Cr App R 134 3. By the assumption of responsibility R v Stone and Dobinson [1977] 2 All ER 341; Instan [1893] 1 QB 450 4. By creating or contributing to a danger R v Miller [1983] 2 AC 161; Fagan v MPC [1968] 3 All ER 442; Santa-Bermudez [2004] Crim LR 471; R v Khan [1998] Crim LR 830; R v Evans (Gemma) 2009 EWCA Crim 650. 5. By statute Domestic Violence, Crime and Victims Act 2004, ss. 5-6 (causing or allowing the death of a child or vulnerable adult) Failure to inform offences. (ii)

Situational Liability

Larsonneur (1933) 97 JP 206; Winzar v Chief Constable of Kent (1983): Martin v State 31 Ala App 334 (U.S case)

(iii)

Involuntary Behaviour

People whose conduct is the result of no deliberation on their part but is caused by some external factor e.g. brake failure or internal pathology e.g. heart attack or insanity are not normally the subject of criminal liability even for crimes which do not require proof of fault. This aspect of liability will be considered in the part of the course concerned with defences....