Actus Reus

Question 1

Actus reus

Answer 1

Criminal conduct and behaviour element of an offence.

Question 2

Criminal conduct

Answer 2

Voluntary and willed

Question 3

For a person to be found guilty of a criminal offence you must show that he/she

Answer 3

○ acted in a particular way;
○ failed to act in a particular way (omissions); or
○ brought about a state of affairs.

Question 4

Proving required actus reus

Answer 4

○ that the defendant’s conduct was voluntary; and
○ that it occurred while the defendant still had the requisite mens rea.

Question 5

Voluntary Act

Answer 5

• voluntary act is something done by the defendant
  
  • Involuntary act is something that happens to a defendant
  • Voluntarily = operation of free will
  • Reflexive actions are generally not classed as being willed or voluntary, hence the (limited) availability of the ‘defence’ of automatism.
  • The unexpected onset of a sudden physical impairment (such as severe cramp when driving, actions when sleepwalking) can also render any linked actions ‘involuntary’.

Question 6

Automatism

Answer 6

• Automatism = an absence of a fundamental requirement for any criminal offence; namely, the ‘criminal conduct’ (actus reus)
  
  • Total loss of control over their actions.
  • ‘complete destruction of voluntary control’.
  • E.g. swarm of bees flies into a car causing a reflex action by the driver resulting in an accident (an example given in Hill v Baxter [1958] 1 QB 277).
    ○ Drivers actions are involuntary and not sufficient to support a criminal charge.
  • E.g. a person inadvertently dropping and damaging property when suddenly seized by cramp or discharging a firearm as a result of an irresistible bout of sneezing.

Question 7

Coincidence with Mens Rea

Answer 7

• The defendant had the requisite mens rea at the time of carrying out the actus reus.
  
  • no need for that ‘state of mind’ to remain unchanged throughout the entire commission of the offence.
  • If a person (X) poisons another (Y) intending to kill Y at the time, it will not alter X’s criminal liability if X changes his mind immediately after giving the poison or even if X does everything he can to halt its effects (R v Jakeman (1983) 76 Cr App R 223).
  • if the actus reus is a continuing act, as ‘appropriation’ iit may begin without any particular mens rea but the required ‘state of mind’ may come later while the actus reus is still continuing.
  • When mens rea ‘catches up’ with the actus reus, the offence is complete at the first moment that the two elements (actus reus and mens rea) unite.
  • E.g. motorist was directed to pull his car over to the kerb by a police officer and drove it onto the officer’s foot, there was no proof that he did so deliberately. However, it was clear that he deliberately left it there after the officer told him what he had done.

Question 8

Omissions

Answer 8

Failure to act

Question 9

Omissions Example

Answer 9

A sees B drowning and is able to save him by holding out his hand. A abstains from doing so in order that B may be drowned, and B is drowned. A has committed no offence.

Although A may have failed to save B, he did no positive act to cause B’s death and, under English law, A has done nothing wrong.

Question 10

Failure to act

Answer 10

• Liability is brought about by a failure to act.
  
  • Where failure or omission will attract liability are where a DUTY to act has been created.

Question 11

D - DANGEROUS SITUATION

Answer 11

Example:

R v Miller [1983] 2 AC 161 the defendant was ‘sleeping rough’ and entered a building and fell asleep on a mattress while smoking a cigarette. When he awoke, he saw the mattress was smouldering but instead of calling for help or doing anything about the smouldering mattress, he simply moved into another room in the building and fell asleep. The mattress caught fire and the fire spread to the rest of the building. The defendant was convicted of arson, not for starting the fire but for failing to do anything about it.

Question 12

U

Answer 12

UNDER STATUTE, CONTRACT OR A PERSON’S PUBLIC OFFICE.

Question 13

STATUTE

Answer 13

A driver who is involved in a damage or injury accident fails to stop at the scene of the accident (s. 170 of the Road Traffic Act 1988), a driver who fails to cooperate with a preliminary test procedure (s. 6(6) of the Road Traffic Act 1988) or a person who does not disclose information in relation to terrorism (s. 19 of the Terrorism Act 2000).

Question 14

CONTRACT

Answer 14

A crossing keeper omitted to close the gates (a job that was part of his contractual obligations) at a level crossing and a person was subsequently killed by a passing train (R v Pittwood (1902) 19 TLR 37).

Question 15

Public office

Answer 15

Whilst on duty, a police officer stood aside and watched as a man was beaten to death outside a nightclub. The officer then left the scene, without calling for assistance or summoning an ambulance. For this, the officer was convicted of the common law offence of misconduct in a public office (R v Dytham [1979] QB 722).

Question 16

T - TAKEN IT UPON HIM/HERSELF

Answer 16

The defendant voluntarily undertakes to care for another who is unable to care for him/herself as a result of age, illness or infirmity and then fails to care for that person.

Example:

R v Stone [1977] QB 354 the defendant accepted a duty to care for her partner’s mentally ill sister who subsequently died from neglect.

Question 17

Y - YOUNG PERSON

Answer 17

In circumstances where the defendant is in a parental relationship with a child or a young person, i.e. an obligation exists for the parent to look after the health and welfare of the child and he/she does not do so.

• Whether or not there is a sufficient proximity between the defendant and the victim brought about by a duty to act will be a question of law (R v Singh [1999] Crim LR 582 and R v Khan [1998] Crim LR 830).
• Having established such a duty, you must also show that the defendant has voluntarily omitted to act as required or that he/she has not done enough to discharge that duty.
• Offence examples: torture (no doubt), false accounting (capable of omission).

Question 18

Causal Link or Chain of Causation

Answer 18

• Causal link between actus reus and relevant consequences.
  
  • Prove that the consequences would not have happened ‘but for’ the defendant’s act or omission.
  • Simple example: defendant throws a brick at a window and the window is broken by the brick hitting it; the window would not have broken ‘but for’ the defendant’s conduct.
  • Complex example: R v McKechnie [1992] Crim LR 194 the defendant attacked the victim, who was already suffering from a serious ulcer, causing him brain damage. The brain damage (caused by the assault) prevented doctors from operating on the ulcer which eventually ruptured, killing the victim.
  • Delay example: a defendant transported an accomplice to a place near to the victim’s house some 13 hours before the accomplice shot and killed the victim. Despite the delay and despite the fact the accomplice had not fully made up his mind about the proposed shooting at the time he was dropped off by the defendant, there was no intervening event that diverted or hindered the planned murder (R v Bryce [2004] EWCA Crim 1231).
  • Defendant entered a house after throwing a brick through a window. Although the defendant did not attack the occupant, an 87-year-old who died of a heart attack some hours later, the Court of Appeal accepted that there could have been a causal link between the defendant’s behaviour and the death of the victim. (R v Watson [1989] 1 WLR 684).

Question 19

Intervening Act

Answer 19

The causal link can be broken by a new intervening act provided that the ‘new’ act is ‘free, deliberate and informed’ (R v Latif [1996] 1 WLR 104).

* Intervening act will not break a causal link/chain of causation. 
* Defendants must ‘take their victims as they find them’ e.g. if victims have a particular characteristic, such as a very thin skull or a very nervous disposition, which makes the consequences of an act against them much more acute.

Question 20

R v Kennedy [2007]

Answer 20

If a drug dealer supplies drugs to another person who then kills him/herself by taking an overdose, the dealer cannot, without more, be said to have caused the death. Death would have been brought about by the deliberate exercise of free will by the user.

Question 21

R v Dias [2001]

Answer 21

The supplier is unlikely to be held liable for causing death in such a case unless he/she actually takes a more active part in the administering of the drug.

Question 22

Incorrect medical treatment

Answer 22

Hardly ever categorised by the courts as amounting to an intervening act.

Question 23

R v Smith [1959]

Answer 23

Two soldiers were fighting each other when one stabbed the other with a bayonet. Other soldiers carried the injured man to a medical centre, dropping him twice on the way. An overworked doctor failed to notice that one of the injured man’s lungs had been pierced and the treatment the soldier received ‘might well have affected his chances of recovery’. This did not, however, break the chain of causation as the original injury was still the operating and substantial cause of death.

Question 24

R v Jordan (1956)

Answer 24

Where the defendant had stabbed the deceased, who was taken to hospital for treatment. The deceased received treatment for the injuries and recovered so that the original injury brought about by the stabbing had almost totally healed. At this time, there was a mix-up resulting in the administration of a drug (terramycin) after the deceased had shown he was intolerant to it (treatment described as ‘palpably wrong’ by the court). The court concluded that it was the medical treatment that had caused the death and not the stab wound.

Question 25

R v Cheshire [1991]

Answer 25

The victim was shot with a shotgun causing injury to his hip. As part of his emergency treatment, a tracheotomy was carried out. Whilst the gunshot wounds healed, there were complications regarding the tracheotomy which caused the victim to die. The defendant was convicted regarding the death as the complications were still a natural consequence of his original act (the shooting).

Question 26

R v Harvey [2010]

Answer 26

During a ‘domestic tiff’, the offender threw a television remote control at his wife, which hit her behind the ear. Unknown to anyone, she had an unusual weakness of the vertebral artery, which ruptured and caused her death. Save for the death, the offence charged would have been one of battery.

Question 27

R v Roberts (1971)

Answer 27

Actions by the victim will sometimes be significant in the chain of causation, such as where a victim of a sexual assault was injured when jumping from her assailant’s car in an attempt to escape.

* Where such actions take place, the victim’s behaviour will not necessarily be regarded as introducing a new intervening act. If the victim’s actions are those which might reasonably be anticipated from any victim in such a situation, there will be no new and intervening act and the defendant will be responsible for the consequences flowing from them.

Question 28

R v Corbett [1996]

Answer 28

The defendant was convicted of manslaughter when a man he was assaulting was struck and killed by a car as he attempted to escape. If, however, the victim’s actions are done entirely of his/her own volition or where those actions are, in the words of Stuart-Smith LJ, ‘daft’ (R v Williams [1992] 1 WLR 380), they will amount to a new intervening act and the defendant cannot be held responsible for them.

Question 29

‘act of God’

Answer 29

Or, other exceptional natural event, may break the chain of causation leading from the defendant’s initial act, if it was the sole immediate cause of the consequences in question.
* An event must be ‘of so powerful a nature that the conduct of the defendant was not a cause at all, but was merely a part of the surrounding circumstances’ (Southern Water Authority v Pegrum [1989] Crim LR 442).

Question 30

Principals and Accessories

Answer 30

• Degree of involvement and ways of attracting criminal liability

Question 31

Principal offender

Answer 31

One whose conduct has met all the requirements of the particular offence.

Question 32

Accessory offender

Answer 32

Someone who helped in or brought about the commission of the offence.

	○ If an accessory ‘aids, abets, counsels or procures’ the commission of an offence, he/she will be treated by a court in the same way as a principal offender for an indictable offence (Accessories and Abettors Act 1861, s. 8) or for a summary offence (Magistrates’ Courts Act 1980, s. 44).

Question 33

Aiding

Answer 33

Giving help, support or assistance.

Question 34

Abetting

Answer 34

Inciting, instigating or encouraging.

Question 35

Aiding and abetting

Answer 35

Involve the presence of the secondary party at the scene / was there as part of an agreement in respect of the principal offence.

Question 36

Counselling

Answer 36

Advising or instructing - requires no causal link. As long as the principal offender is aware of the ‘counsellor’s’ advice or encouragement, the latter will be guilty as an accessory, even if the principal would have committed the offence anyway.

Question 37

Procuring

Answer 37

Bringing about. You must show a causal link between their conduct and the offence.

Question 38

Counselling and procuring

Answer 38

Take place before the commission of the offence.

Question 39

Principals and Accessories Example

Answer 39

Where the principal (P) relies on acts of the accessory (D) which assist in the preliminary stages of a crime later committed in D’s absence, it is necessary to prove intentional assistance by D in acts which D knew were steps taken by P towards the commission of the crime.

Question 40

What must the prosecution prove when principals and accessories are involved?

Answer 40

○ an act done by D;
○ which in fact assisted the later commission of the offence;
○ that D did the act deliberately realising that it was capable of assisting the offence;
○ that D, at the time of doing the act, contemplated the commission of the offence by P; and
○ that, when doing the act, D intended to assist P.

Question 41

What happens if the principal cannot be found?

Answer 41

If the principal cannot be traced or identified, the accessory may still be liable.

Question 42

What happens if the principal is acquitted?

Answer 42

An accessory may be convicted of procuring an offence even though the principal is acquitted or has a defence for his/her actions. The principal often supplies the actus reus for the accessory’s offence.

Question 43

Rubie v Faulkner [1940]

Answer 43

If the accessory had some responsibility and the actual ability to control the actions of the principal, his/her failure to do so may attract liability (e.g. a driving instructor who fails to prevent a learner driver from driving without due care and attention.

Question 44

Effective withdrawal

Answer 44

• making an effective ‘withdrawal’ before any liability is incurred
  ○ Evidence such as how far the proposed plan had proceeded before the withdrawal, and the amount/nature of any help or encouragement already given by the accessory, will be relevant.
  
  • In the absence of some overwhelming supervening event, an accessory can only avoid liability for assistance rendered to the principal offender towards the commission of the crime by acting in a way that amounts to the countermanding of any earlier assistance, such as a withdrawal from the common purpose.

Question 45

R v Tyrrell [1894]

Answer 45

A person whom the law is intended to protect from certain types of offence cannot be an accessory to such offences committed against them.

For example, a girl under 16 years of age is protected (by the Sexual Offences Act 2003) from people having sexual intercourse with her. If a 15-year-old girl allows someone to have sexual intercourse with her, she cannot be charged as an accessory to the offence.

Question 46

National Coal Board v Gamble [1959]

Answer 46

The state of mind (mens rea) which is needed to convict an accessory is: ‘proof of intention to aid as well as of knowledge of the circumstances’

Question 47

STATE OF MIND FOR ACCESSORIES

Answer 47

• The requirement for proof of intention to aid means that the wider notions of recklessness and negligence are not enough to convict an accessory.
  
  • The minimum state of mind required of an accessory to an offence is set out in Johnson v Youden [1950]
    ○ the court held that before anyone can be convicted of aiding and abetting an offence, he/she must at least know the essential matters that constitute that offence.
    accessory to an offence of drink/driving must at least have been aware that the ‘principal’ (the driver) had been drinking (Smith v Mellors and Soar (1987)

Question 48

Joint enterprise

Answer 48

Two (or more) people embark on the commission of an offence by one or both (or all) of them.

As the parties to a joint enterprise share a combined purpose, each would be liable for the consequences of the actions of the other in the pursuit of their joint enterprise (but see below for such liability when the nature of the offence changes). This is the case even if the consequences of the joint enterprise are a result of a mistake.

Question 49

Joint Enterprise Example

Answer 49

For example, two offenders (A and B) agree to carry out a burglary on a particular house. Offender A leads the way but makes an error and mistakenly breaks into the wrong house. This error by offender A will not prevent offender B being guilty as an accomplice to the burglary offence.

Question 50

Parasitic Accessory Liability

Answer 50

• One party goes beyond that which was agreed or contemplated by the other
• Narrower area of secondary responsibility.
  • Foresight that the wounding might occur is simply evidence (albeit sometimes strong evidence) of intent to assist or encourage.

It is a question for the jury in every case whether the intention to assist or encourage is shown—a person is not to be taken to have had an intention merely because of foreseeability.

Question 51

Parasitic Accessory Liability Example

Answer 51

Two men (A and B) agree to carry out an offence of theft. During the course of the offence, the owner of the property subject of the offence appears and tries to prevent the offence taking place. Offender A produces a flick-knife and stabs the victim, causing grievous bodily harm. Offender B had no idea that offender A had a flick-knife and had never contemplated the use of violence during the theft offence.

The actions of offender A are a departure from the nature and type of crime that was envisaged by offender B who did not know that A possessed a flick-knife; it is an act so fundamentally different from that originally contemplated by B that B is most unlikely to be liable for the injuries caused to the victim (R v Anderson [1966] 2 QB 110).

Question 52

Jogee and Ruddock

Answer 52

The court made it clear that the ruling:

* did not affect the law that a person who joins in a crime which any reasonable person would realise involves a risk of harm, and death results, is at least guilty of manslaughter. Manslaughter cases can vary in their gravity, but may be very serious and the maximum sentence is life imprisonment;
* does not affect the rule that a person who intentionally encourages or assists in the commission of a crime is as guilty as the person who physically commits it;
* did not alter the fact that it is open to a jury to infer intentional encouragement or assistance, for example from weight of numbers in a combined attack, whether more or less spontaneous or planned, or from knowledge that weapons are being carried. It is commonplace for juries to have to decide what inferences they can properly draw about intention from an accused person’s behaviour and what he/she knew.

Question 53

Corporate Liability

Answer 53

• Companies which are ‘legally incorporated’ have a legal personality of their own and they can commit offences.
  
  • Companies have been prosecuted for offences of strict liability (Alphacell Ltd v Woodward [1972] AC 824), offences requiring mens rea (Tesco Supermarkets Ltd v Nattrass [1972] AC 153) and offences of being an ‘accessory’ (R v Robert Millar (Contractors) Ltd [1970] 2 QB 54).
  • some offences that would be conceptually impossible for a legal corporation to commit (e.g. some sexual offences) but, given that companies can be guilty as accessories (Robert Millar), they may well be capable of aiding and abetting such offences even though they could not commit the offence as a principal.
  • A company (OLL Ltd) has also been convicted, along with its managing director, of manslaughter (R v Kite [1996] 2 Cr App R (S) 295). Companies can be prosecuted for such offences under the terms of the Corporate Manslaughter and Corporate Homicide Act 2007.

Question 54

Vicarious Liability

Answer 54

• Liability can be transmitted vicariously to another.
  
  • Statutory duty is breached by employees in the course of their employment (National Rivers Authority v Alfred McAlpine Homes (East) Ltd [1994] 4 All ER 286).
  • A duty is placed upon a particular individual, such as a licensee, who delegates some of his/her functions to another.
  • Prevent individuals or organisations from evading liability by getting others to carry out unlawful activities on their behalf.