ACTUS REUS
AQA – A2
CRIMINAL LIABILITY
The requirements of a criminal offence: actus reus and mens rea
Most criminal offences require both a physical element and a mental element. The physical element is known as the ‘actus reus’ and the mental elemnt is known as the ‘mens rea.’
The definition of a particular crime, either in statute or under common law (law made by judges) will contain the AR and the MR. The existence of AR is essential for criminal liability. Each crime has its own AR laid down by statute or a judge.
Examples of AR:
The AR of s18 of the Offences Against the Person Act 1861 occurs when D causes an Unlawfully wounding or GBH
The AR under the Theft Act 1968 arises-
The AR for murder developed by judge is-
The same act by the D may be part of the AR of different crimes, depending on its consequences.
e.g. a stabbing- If they die- AR for murder
If they don’t die- AR for GBH
Many crimes in their definition may require that an act may be committed ‘unlawfully’ or ‘without lawful excuse’. If the act is committed lawfully then there is no AR and therefore no crime.
E.g’s of lawful GBH-
ACTUS REUS
Crimes can be divided into 4 types depending on the nature of their AR:
1) Conduct
Some crimes are committed if D does a certain act, regardless of the consequences
E.g., i) strict liability
ii) dangerous driving
iii) possession of drugs
iv) purgery
2) Consequences
For some crimes however it is necessary to show more than just conduct: the result or consequence of the action must also be assessed:
e.g. i) Murder- dead body
ii) Death by dangerous driving
3) Circumstances
These are ‘being’ rather than ‘doing’ offences. D may be found guilty of a crime simply be being in a particular place when this state of affairs has been declared to be wrong:
e.g driving dangerously is only an offence if it is on a public highway
WINZAR V CHIEF CONSTABLE OF KENT 1983
D in hospital drunk. Police were called to remove him; they dumped him in the pavement in front of the hospital and charged him with being drunk in a public place.
Certain Acts of Parliament have adopted this approach:
s4 of the Road Traffic Act 1988-‘It is an offence to be in charge of a motor vehicle on a road or public place while unfit to drive through drink or drugs’
The conduct/act must be voluntary
The prosecution must prove that the accused voluntarily brought about the AR of the crime. The act or omission must have occurred because of the conscious exercise or will on the part of the accused.
If the accused is not in control of his actions for some reason his actions are obviously not voluntary and he may plead the defence of automatism-
Not in control of yourself.
E.g.
i) In the case of KAY V BUTTERWORTH D fell asleep while driving and drove into a group of soldiers.
Was there any voluntary conduct which could be the AR for the offence, and if so what was it?
ii) A pushes B, so that B looses his balance and falls against C injuring him. Who is liable?
iii) In HILL V BAXTER 1958 the judge gave the following example in an obiter statement:
“A car driver is attacked by a swarm of bees, swerves and injuries someone”Would he be liable?
4) ACTUS REUS BY OMISSION
LIABILTY FOR OMISSIONS
(FAILING TO ACT)
It is a general principle of English Law that you cannot commit the AR of a crime by omitting (failing) to do something.
E.g. If you do nothing to help a drowning man you have not committed a crime
No criminal liability, but a moral liability
However the law has listed the following situations where a person has a positive duty to act, and if he fails to do so he will be liable.
5 situations where failing to act is the ACTUS REUS of the offence;
1) WHERE STATUTE LAYS THIS DOWN
E.g. Road Traffic Act 1988e.g. Not wearing a seat belt
Not reporting an accident
Failing to give a breath test
Not stopping at traffic lights
Children and Young Person Act 1933
If you don’t feed, clothe or get medical treatment for a child in your responsibility
2) WHERE THERE IS A DUTY UNDER A CONTRACT TO ACT
E.g. Life guard
MEDICAL CASES
A doctor is under a duty of care for a patient, unless the patient refuses medical treatment. If the doctor omits to act then they cannot form the actus reus of the crime if the patient dies. However where a patient is not in a position to give instructions about treatment, then it becomes a question of what is in the patient’s best interest:
Compare this too PRETTY, why did Mrs. Pretty lose her case?
PRETTY 2001
FACTS: PRETTY was dying from a terminal illness & she wanted the court to declare that if her husband was to help her die he would be immune from prosecution.
HELD: The HL & the European court of Human Rights refused this request declaring that he would not be immune from prosecution
3) YOUR STATUS OR POSITION-
e.g., Sea captains must take reasonable steps to protect the lives of passengers. Police officers have a duty to protect the public.
4)VOLUNTARY ASSUMED RESPONSIBILITY
If a person voluntarily undertakes to look after another duty will be imposed:
5) DANGEROUS SITUATION CAUSED BY D & D HAS FAILED TO PUT IT RIGHT
CAUSATION
If the AR of a crime requires prohibited consequence (e.g. death in murder or manslaughter) it must be established that the suspects conduct is a:
1)FACTUAL
&
2)LEGAL CAUSE OF THE CONSEQUENCE
1)FACTUAL CAUSE OF CONSEQUENCE –‘Causation in Fact’
THE ‘BUT FOR’ TEST.
The question that must be asked when deciding if the actions of the D were a factual cause of a consequence is this:
But for the actions of the accused would the consequences have happened?
If the answer to this is YES the D is- not a factual cause
If the answer to this is NO then D is- is a factual cause
Or put another way, would the consequences have happened anyway, whatever the conduct of the accused?
If the consequence would have happened anyway at the time that it did then the actions of the accused is NOT a FACTUAL CAUSE of the consequence & cannot be the AR of the offence in question.
If it is decided that the actions of the accused did in some way contribute to the consequence then they are a factual cause of it.
It is sufficient that D’s act makes a more than minimal contribution to the consequence this was decided by the judge in the case of KIMSEY 1996.
Most cases are straightforward and the jury can be left to decide the issues for themselves. Sometimes however although the actions of the accused may be A factual cause if death, the judge may need to direct the jury about whether it can be a legal cause.
2) CAUSATION IN LAW
Even though an action may be a factual cause, there may be legal rule that prevents the jury accepting it as a legal cause. This usually happens when something has happened after the actions of the D, but before the unlawful consequence.
This is referred to ac a NOVUS ACTUS INTERVENIENS
Novus Actus Interveniens
This is an intervening act or event which happens after the initial incident that is so substantial that it takes over as the new cause, or ‘breaks the chain of causation.’If it is, the judge can tell the jury that the actions of the D are no longer the legal cause. The problem is deciding if the act or event is substantial enough to do this.
1)ACTIONS BY MEDICAL PRACTITIONERS
Medical treatment will hardly ever break the chain of causation.
Substantial & operating causes and life support machines
2) INTERVENING ACTIONS BY THE VICTIM
If the victim of the offence has acted in a way that has contributed to his or her injury the attacker will still be the cause if the victim’s actions were a reasonably foreseeable reaction to the actions of the attacker:
Compare ROBERTS to WILLIAMS:
R V WILLIAMS 1992
FACTS: Hitch hiker jumped from Williams’ car & died from head injuries. There had been attempt to steal V’s wallet & that is why he jumped from the car. The CA said the V’s act had to be foreseeable & had to be in proportion to the threat. The question to be asked
“Was D’s conduct within the ambit of reasonableness & not so daft as to make his own voluntary act one which amounted to a NAI & so breaking the chain of causation”
3)INTERVENING ACTIONS BY THIRD PARTIES
If a third party has contributed to the unlawful consequences the original attacker will still be liable if the third party’s actions were a reasonably foreseeable consequence of the actions of the D:
THIN SKULL RULE
The accused must ‘take his victim as he finds him’. If a person’s actions only result in the death of the victim because of some frailty or condition of which the assailant was unaware the assailant will still be held to be.
4)SELF –NEGLECT
If V mis-treats, or neglects to treat his own injuries this will not break the chain of causation
HOLLAND 1841
FACTS: D cut V on his finger, the wound became infected, but he ignored medical advice that he should have the finger amputated. The wound caused lock-jaw & he died.
The question was the wound inflicted by D the cause of death?
HELD:
5)VOLUNTARY ACTS
House of Lords ruled that a voluntary act by V also breaks the chain of causation:
KENNEDY 2007
FACTS: D was a drug dealer & V was a heroin addict. One night at V’s request, D prepared a dose of heroin & gave V a syringe ready for injection. V injected himself but later died. D was convicted of manslaughter but appealed that he did not cause V’s death
HELD:
6)ACCELERATION PRINCIPLE
D will still be considered liable if he has accelerated V’s death. It is no defence to say that D was dying of a fatal disease anyway.
ADAMS 1957
FACTS: D was a doctor charged with the murder of one of his patients who was terminally ill, by means of an overdose of pain killers.
The jury were directed that it did not matter that V’s days were numbered: ‘If her life were cut short by weeks or months it was just as much murder as if it were cut short by years’
All the above cases involved actions by someone that were clearly a FACTUAL cause of death or injury. They were all appealed on the issue of whether or not the judge had correctly directed the jury as to whether the actions could be legal cause of death.
7)PRE-EXISTING CONDITION
HAYWOOD 1908
FACTS: D indicated that he was going to harm his wife. An argument developed & the woman ran into the road, followed by her husband who was still making threats at her. The woman collapsed & died. She had a condition that would not usually cause any problems but the unusual physical exertion & the fright caused her husband’s treatment had caused her to collapse.
HELD:
8)THIN SKULL RULE (Take your victim as you find him)
R V BLAUE 1975
FACTS: D stabbed victim. Victim dies. She refused medical treatment due to her religion. D Argued victim broke chain of causation.
HELD: D was guilty, ‘TAKE YOUR VICTIMS AS YOU FIND THEM’.
Refusal of medical treatment did not break the chain of causation
EVALUATION OF THE LAW ON CAUSATION
1)The ‘but-for’ test is fair as if there is no factual connection between D & the offence it is unfair to allocate blame
2)Is it fair & morally right that merely being a ‘factual cause’ is not sufficient if the consequence if the fault of D? – JORDAN
3)Does the test of ‘REASONABLE FORESEEABILITY’ lead to a fair result if D claims that he did not foresee the actions of the third party – PAGETT?
4)Is it right that the jury decide what is reasonably foreseeable when the V’s actions contribute to the injuries sustained or the death? – ROBERTS/WILLIAMS
5)Is it fair & morally right that where the D has injured the V who then receives medical treatment which proves unsatisfactory should the D claim that he isno longer liable & the treatment has broken the chain of causation? – SMITH /CHESHIRE/JORDAN?
6)Public policy has shaped judicial attitudes to the development of the law in relation to supporting the police & the medical servicesin the performance of their duties
7)If is fair & morally right to assert that the D must take the victim as they find them or whether the decisions in BLAUE & DEAR are too harsh
8)Should the entire blame always be placed on the originator of a chain of events? – CHESHIRE/PAGETT/ROBERTS
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