9- Actus Reus

Question 1

What are the different types of actus reus

Answer 1

1. Conduct crimes
2. Consequence crimes
3. State of affairs crimes

Question 2

What are conduct crimes?

Answer 2

Crimes where it is not necessary for any consequence to be proved- ‘conduct’ crimes.

EXAMPLE: Theft, where the prohibited conduct to be proved, is that D appropriated property belonging to another. It is not necessary to prove a consequence.

Question 3

What are consequence crimes?

Answer 3

Crimes where prohibited conduct must also result in a consequence.
The actus reus, in this case, is only committed where, as well as D doing or failing to do something, there is also a prohibited consequence caused by D’s conduct.

EXAMPLE: s 47 of the Offences Against the Person Act 1861- There must be a threat of unlawful force but there must also be a consequence of ‘actual bodily harm’- an injury to the victim. This could be a bruise or a broken nose, for example.
Without the consequence, there cannot be as 47 offence. The actus reus for s 47 is not complete.

Question 4

What are state of affairs crimes?

Answer 4

In some crimes, the actus reus can be a state of affairs for which D is responsible.

EXAMPLE: Having an offensive weapon in a public place (s 1 of the Prevention of Crime Act 1953.) D doesn’t have to do anything with the weapon, nor does it have to be visible. It is enough that they have it with them in a public place.

Question 5

Explain the voluntary nature of actus reus and give 3 examples

Answer 5

The act or omission must be voluntary on the part of D.
If D has no control over their actions then they have not committed the actus reus.

EXAMPLE 1: In Hill v Baxter (1958) the court gave examples of where a driver of a vehicle could not be said to be doing the act of driving voluntarily.
These included where a driver lost control of the vehicle because:
They were stung by a swarm of bees
They were struck on the head by a stone
They had a heart attack while driving

EXAMPLE 2: If D hits another person because of a reflex action or a muscle spasm.

EXAMPLE 3: Where a person pushes another person, causing them to bump into a third person. The act of the 2nd person is involuntary. Even though they had hit the 3rd person, they have not committed the actus reus for any assault offence. The original pusher can be liable.
This is shown in the case of R v Mitchell (1983.)

Question 6

Explain involuntariness in actus reus

Answer 6

In a few cases, D’s have been convicted even though they did not act voluntarily.
These situations include a ‘state of affairs’, but not one that the D entered into voluntarily.

EXAMPLE: R v Larsonneur (1933).

Question 7

Omissions as actus reus

Answer 7

An omission cannot make a person guilty of an offence.
The UK doesn’t have a ‘Good Samaritan’ law.

This was explained by Stephen J, a 19th century judge:
“A sees B drowning and is able to save him by holding out his hand. A abstain from doing so in order that B may be drowned. A has committed no offence.”

Question 8

What is a Good Samaritan law?

Answer 8

Some countries have a law that makes a person responsible for helping other people in an ‘emergency situation’, even if they’re complete strangers.
French law has this:

EXAMPLE: When Princess Diana’s car crashed in Paris in 1997. Journalists who had been following took photographs of her, injured in the car. They didn’t try to help her, and the French authorities threatened to charge them under the French ‘Good Samaritan’ law.

Question 9

What are the problems of the Good Samaritan law?

Answer 9

1. What if a person pretends to be injured in order to lure a stranger to their assistance and rob the stranger?
2. Risk that an untrained person, by intervening, causes more harm to injured person.
3. What is considered an ‘emergency situation’? Who decides that there is an ‘emergency situation’ so that the ‘Good Samaritan’ law is operating?
4. If several people witness the incident, do they all have to help or is it enough if only one helps?
5. Should rescuers put themselves at risk in order to help? It seems unlikely that the law would require this.
   EXAMPLE: Miller (1983)- D who has caused the risk should take reasonable steps, D would not be expected to put themselves at risk.

Question 10

What are the exceptions to the rule that an omission cannot make a person guilty of an offence?

Answer 10

In some cases failure to act can be the actus reus.
6 ways in which this can exist:
1. A statutory duty (AofP)
2. A contractual duty (job)
3. A duty bc of a relationship
4. A duty which has been taken on voluntarily
5. A duty through one’s official position
6. A duty which arises bc D has set in motion a chain of events

Question 11

Exceptions to omission rule- Statutory duty

Answer 11

An AofP can create liability for an omission.

EXAMPLE:
Offence of failing to stop or report a road traffic accident (s 170 of the Road Traffic Act 1988)
Offence of failing to provide a specimen of breath (s 6 of the Road Traffic Act 1988).
s 1 of the Children and Young Persons Act 1933 puts parents who are legally responsible for a child under a duty for providing food, clothing, medical aid and lodging for their children. Parents who fail to do this can be guilty of the offence of wilful (intentional) neglect.

Offence of allowing the death of a child or vulnerable adult under s 5 of the Domestic Violence, Crime and Victims Act 2004. This applies where a person in the = household fails to take reasonable steps to protect the victim.

Question 12

Exceptions to omission rule- Contractual duty

Answer 12

EXAMPLE: In R v Pittwood (1902) a railway-crossing keeper omitted to shut the gates, with the result that a person crossing the line was struck and killed by a train. Keeper guilty of manslaughter.

MODERN EXAMPLE: A lifeguard at a pool who leaves their post unattended. Their failure to do their duty could make them guilty of an offence if a swimmer were injured or drowned.

Question 13

Exceptions to omission rule- Duty bc of a relationship

Answer 13

Usually a parent-child relationship bc a parent has a duty to care for young children.
A duty can also exist the opposite way round, where a grown-up child is caring for their elderly parent.

EXAMPLE: R v Gibbins and Proctor (1918)- involving a parent-child duty of care.

Question 14

Exceptions to omission rule- Duty which has been undertaken voluntarily

Answer 14

In the previous case (R v Gibbins v Proctor (1918)) the partner had voluntarily undertaken to look after the girl. She therefore had a duty towards the child.
When she failed to feed the child she was guilty of murder bc of the omission.

ANOTHER EXAMPLE: R v Stone and Dobinson (1977).

RECENT EXAMPLE: R v Evans (2009)- mother was guilty of manslaughter through her failure to act.

Question 15

Exceptions to omission rule- Duty through one’s official position

Answer 15

This is very rare.

EXAMPLE: R v Dytham (1979).

Question 16

Exceptions to omission rule- Duty which arises bc D set in motion a chain of events

Answer 16

This concept of owing a duty and being liable through omission was created in the case of R v Miller (1983).

EXAMPLE 2: DPP v Santa-Bermudez (2003)- D knew that there was a dangerous situation but failed to take any steps.
This failure was enough for the actus reus of an assault causing actual bodily harm.

The case of Evans (2009) also illustrates the principle of a D being liable after creating a state of affairs. Supplying heroin had created a state of affairs which she knew or ought reasonably to have known was threatening the life of V.

Question 17

Duty of doctors

Answer 17

There are cases where doctors decide to stop treating a patient.
If this discontinuation of treatment is in the best interest of the patient then it is not an omission which can form the actus reus.
However, a positive act - euthanasia still remains unlawful.
This discontinuation in the interest of the patient was decided in Airedale NHS Trust v Bland (1993).

Question 18

Problems with actus reus

Answer 18

1. Definition- Actus reus is not an accurate description of conduct which can be sufficient to make a person liable for an offence.
   Actus reus means an act, yet the law recognises a failure to act can be sufficient for liability.
   The Law Commission in its Draft Criminal Code (1989) preferred the phrase ‘external element’ (facts about an offence that must be proved), which is a more accurate description.
2. Whether there should be wider liability for omissions such as the Good Samaritan law.
3. Problems of deciding when a duty should be imposed so that an omission is sufficient for the actus reus of an offence.
4. Whether a person should be liable for failure to act when they assume the duty.
5. Omissions in medical treatment.
6. Justification for statutory imposition of liability for an omission.

Question 19

Problems if Good Samaritan law was introduced in the UK

Answer 19

1. Should ordinary people be forced to act as ‘rescuers’?
   In a developed country, state provides well-trained and well-equipped professionals such as the police and fire-brigade to deal with emergency situations.
   These services are paid for through taxes, so it could be argued that every tax-payer is already doing their bit.
2. The rescuer might do more harm than good, or they could put themselves at risk.
3. Another problem is that many people could be liable for one incident. It would be impractical to prosecute large numbers.

Question 20

Problems when decing when a duty exists

Answer 20

The existence of duty is something the judge decides:

At the trial, judge will determine whether there is evidence to establish a duty of law.

Judge will then direct the jury that if they decide certain facts are proved, then a duty exists.

The jury will make the decision as to whether the facts are proved in the case and whether the duty has been broken.

The law can therefore expand to cover different situations.

This was stated in R v Khan and Khan (1998)- CofA stated obiter that duty situations could be extended to other areas.

This point was also stated in R v Evans (2009).
However, it could be argued that this makes the law more uncertain.

Question 21

Assuming a duty

Answer 21

It can seem harsh that someone who accepts an adult into their home can be held to assume a duty towards the adult.

This was the situation of Stone and Dobinson (1977), although there was also:
A blood relationship to the victim in that case and
Victim was a vulnerable person incapable of looking after herself.

Adults are normally held to be responsible for their own lives.

A mentally capable adult can refuse medical treatment even though this is likely to cause their death.

If adult is vulnerable, the person assuming the duty is assumed to be in the best position to ensure that potential harm is avoided.

Such duty can be fulfilled by summoning help. It is not necessary for the person to do more than that. In Stone v Dobinson the Ds were found guilty bc they didn’t summon help.

Question 22

Medical treatment

Answer 22

Even though in Airedale NHS Trust v Bland (1993) doctors were held not liable for withdrawing feeding from an unconscious patient, which caused the patient to die, euthanasia is still unlawful.

Withdrawing treatment in the best interest of the patient is permitted but not euthanasia.

Question 23

Statutory duties

Answer 23

Statutes often make it an offence to fail to do something-most offences connected with vehicles and/or driving.

Laws in this area often also impose strict liability. (Ex: car insurance.)

Justification for this is the greater good of society.

Some of the statutory duties have been imposed bc of the difficulty to prove an offence. This was the reason for the introduction of the offence of causing or allowing the death of a child or a vulnerable adult.

EXAMPLE: Prior to this Act, where a child died as a result of physical violence in the home, the prosecution had difficulty discovering which member of the household had committed the offence. Under this Act, all members of the household are liable for failure to protect the child.

Question 24

What is causation?

Answer 24

Where a consequence must be proved, then the prosecution has to show that:
D’s conduct was the factual cause of that consequence and
It was the legal cause of that consequence.

Question 25

What is meant by factual cause?

Answer 25

D can only be guilty if the consequence would not have happened ‘but for’ D’s conduct.

EXAMPLE OF ‘BUT FOR’ TEST: R v Pagett (1983)- D’s girlfriend wouldn’t have been killed ‘but for’ his using her as shield in the shoot-out.

OPPOSITE EXAMPLE: White (1910) where D was not the factual cause of the mother’s death. He was only guilty of attempted murder.

ANOTHER EXAMPLE: R v Hughes (2013)- SC held that factual causation is not necessarily enough on its own for liability.
It distinguished between ‘cause’ in the ‘but for’ sense without which a consequence would not have occurred, and ‘cause’ in the sense of something which was a legally effective cause of that consequence.

Question 26

What is meant by legal cause?

Answer 26

There may be + than 1 act contributing to the consequence.
Some of these acts may be made by people other than D.
The rule is that D can be guilty if their conduct was more than a ‘minimal’ cause of the consequence.
But D’s conduct doesn’t need to be a substantial cause.
In some cases it has been stated that the conduct must be more than de minimis.
In R v Kimsey (1996) the CofA held that instead of the latin phrase ‘de minimis’ it was acceptable to tell the jury it must be ‘+ than a slight or trifling (unimportant) link’.

Question 27

Which case explained the minimum threshold requirement for legal causation

Answer 27

The SC in R v Hughes (2013)

Question 28

What if there are multiple causes that contributed to the death or wounding?

Answer 28

May be + than 1 person whose act contributed to the death.

D can be guilty even though their guilt wasn’t the only cause of death.

In Kimsey both drivers were driving at high speed, but Kimsey could be found guilty.

Question 29

What is the ‘thin skull rule’?

Answer 29

D must also take the victim as he/she finds him/her.
Known as the ‘thin-skull’ rule, meaning that if the victim has something unusual about their physical or mental state which makes an injury more serious, D is liable for the + serious injury.

EXAMPLE: If victim has an unusually thin skull and a blow to their head gives them a serious injury, then D is liable for the injury, even though that blow would only have caused bruising in a ‘normal person’.

EXAMPLE: If victim has a mental state, whether a mental illness or a state of mind such as a belief, D has to take them as he/she finds them.

EXAMPLE OF MENTAL STATE: R v Blaue (1975)- D was still guilty, even though the victim could have been saved.

Question 30

Intervening acts in causation

Answer 30

Must be a direct link from D’s conduct to the consequence.

Known as the chain of causation. (Novus Actus Interveniens- new intervening act.)

In some situations, something else happens after D’s act or omission, and, if it’s sufficiently separate from D’s conduct, may break the chain of causation.

EXAMPLE: Where D has stabbed victim, who needs to be taken to hospital. On the way, the ambulance carrying victim has an accident and causes fatal head injuries to the victim. There is causation in fact but no causation in law.

Under the ‘but for’ test, it could be argued that the victim would not have been in an ambulance but for D’s act of stabbing them.

However, accident is such a major intervening act that D would not be liable for the death of the victim.

Question 31

What factors can break the chain of causation?

Answer 31

1. An act of a third party
2. The victim’s own act
3. A natural but unpredictable event

The intervening act must be sufficiently independent from D’s conduct and sufficiently serious.

Where D’s conduct causes a foreseeable action by a third party, D is likely to be held to have caused the consequence.

This principle applied in Pagett (1983) where he held his girlfriend as a shield against police bullets.

Question 32

Can medical treatment break the chain of causation?

Answer 32

Medical treatment unlikely to break the chain of causation unless it’s so independent of D’s acts and ‘in itself so potent in causing death’ that D’s acts are insignificant.

Question 33

What 3 cases show medical treatment breaking the chain of causation?

Answer 33

1. R v Smith (1959)- D was found guilty. It was held that the injury he’d caused was still an ‘operating’ and ‘substantial’ cause of death.
2. R v Cheshire (1991)- CofA held that, even though the treatment for the injuries was ‘short of the standard expected of a competent medical practitioner’ and the victim’s wounds had virtually healed, D could be found guilty. Prosecution only had to prove that D’s acts contributed to the death. It didn’t have to be the main cause.
3. R v Jordan (1956)- D was not guilty. Victim had died from an allergic reaction.

In first 2 cases, the doctors were carrying out treatment for the injuries to try and save the victim’s life. They would not have needed treatment if they had not been seriously harmed by D. In these cases D is still liable even though medical treatment wasn’t good.

In the 3rd case, if a normal dose of the drug had been given and doctors hadn’t known victim was allergic, giving the drug would not have broken the chain of causation.

Question 34

Does switching off a life-support machine break the chain of causation?

Answer 34

Switching off a life-support machine by a doctor when it has been decided that the victim is brain-dead does not break the chain of causation.

EXAMPLE: R v Malcherek (1981)- CofA upheld the conviction, D was guilty of murder.

Question 35

Does the victim’s own act break the chain of causation?

Answer 35

If D causes victim to react in a reasonably foreseeable way, then any injury to the victim will be considered to have been caused by D.

EXAMPLE: R v Roberts (1971)- CofA upheld D’s conviction for assault causing actual bodily harm under s47 of the Offences Against the Person Act 1861.

EXAMPLE 2: R v Marjoram (2000)- it was reasonably foreseeable that V would fear that the group was going to use violence against him, and that the only escape route was the window.

EXAMPLE 3: Bristow, Dunn and Delay (2012)- reasonably foreseeable action by the victim.

Question 36

Can the victim’s unreasonable reaction break the chain of causation?

Answer 36

If victim’s reaction is unreasonable, this may break the chain of causation.

EXAMPLE: R v Williams and Davis (1992)- CofA said the action had to be reasonably foreseeable and in proportion to the threat.

Question was whether the victim’s conduct was ‘within the ambit of reasonableness and not so daft as to make his own voluntary act one which amounted to a novus actus interveniens and consequently broke the chain of causation.

Question 37

What are the main rules of causation?

Answer 37

1. Was D’s conduct the factual cause of the consequence?//NO- not guilty
2. Was D’s conduct + than a minimal cause of the consequence?//NO-not guilty
3. Did an intervening act break the chain of causation?//YES-not guilty

D legally and factually has caused consequence and will be guilty if D has the required mens rea.

Question 38

What are the problems of hte ‘thin skull rule’?

Answer 38

It may seem unjust where D doesn’t know about the medical condition.

EXAMPLE: If victim has an exceptionally thin skull, so that a blow kills them, it is justifiable that D should be liable for murder. D did not intend to kill but if he/she intended to cause really serious injury, D will be guilty of murder.

Question 39

Should D be liable if the victim refuses medical treatment?

Answer 39

This was justified when medical treatment was very primitive, especially when operations had to be carried out without anaesthetic.

EXAMPLE: R v Holland (1841)- D deliberately cut V’s finger. Cut became infected and V was advised he should have his finger amputated. He refused until it was too late and he died. D was liable for his death.
D is guilty of bodily harm, but should D be liable for the death too?

Should D be liable regardless of the reason for refusing medical treatment?
EXAMPLE: R v Dear (1996)- D was convicted of murder even though V had committed suicide after the injury.

Question 40

Can negligent medical treatment break the chain of causation?

Answer 40

Negligence must be independent of D’s acts and ‘in itself so potent in causing death’ that D’s acts are insignificant? Some of the cases ‘contradict’ this: R v Smith (1959); R v Cheshire (1991).

The ‘operating’ and ‘substantial’ cause principle of Smith (1959) might not have led to conviction in Cheshire (1991).