Actus Reus Flashcards
3 Possible elements of AR
- Conduct element: Physical actions (or omissions) required
- Cirumstance element: The surrounding facts required for the offence
- Result element: The outcomes of D’s act that are required for the offence
Conduct Crimes elements v Result element
Conduct + Circumstance = Conduct
Conduct + Circumstance + Result
Conduct Crime General Rules
Usually Voluntary Act/Conduct is required
With some exceptions
1.) Omissions - failure to act
2.) Situational Liability - presence or connection to a set of circumstances eg: being an owner of a dog
What is the ruling on omissions in conduct crimes
General Rule: No Bad Samaritan Law in English Criminal Law - not usually liable for failing to act
**Exceptions **
- Definiton of the crime allows it (eg Child Neglect)
- D’s failure or omission must be in breach of an existing legal duty (Sometimes the law imposes a duty on you to act)
- (2) Relationships, contract, creation of a dangerous situation
D unkowingly drives over a police officer’s foot, P
P asks D to move the car, D switches off the engine and remains on P’s foot
Act or Omission
Omission
How do scholars try to distinguish acts from omissions?
-** J. Austin** “willed muscular movement”
If you intentionally move your muscles you’ve “acted.” Omission would be an absence of “willed muscular movement”
* Michael Moore expanded on the argument above
- T. Honore
“Doing contrary to a norm is a comission”
General lack of consensus as to how we distinguish acts from omissions
Simester - (criticism on Austin) oversimplification of distinction. Eg: being sat for portrait, hunger struck (are these things not being done) they are an act. Or when a man is shouting or screaming at a child drowning. He is not helping (but he is moving)
Give some hard cases where the courts have struggled with defining omission or act
Assault has no omissions allowed yet these cases still alowed these cases
-* Fagan* - had to be creative with how they found liable for a D.
Driving over police constable foot, police tells him to move off and he does not move
- Omissions are not allowed for assault and technically did not. AR + MR was not aligning
Court said conduct was one continuing act from driving on the foot until the moment where his mens rea came in
**2. **Santa-Bermudez
D patted down by police officer and while patting down get stabbed. V did nothing (needle in pocket). No case to answer (no omissions liability for assault)
Court expressed disatisfaction with distinctions. So still decided there was culpability
**
3. DPP v K (a minor)**
D adding acid to a hand dryer in the toilets as part of school experiment. Someone dried hands and got permanent scarring. Any contact with the V (directly or indirectly) satisfy AR
Difficult cases to establish acts/omissions (medical treatment)
Airedale v Bland
- D in permanent vegetative state for 3 years
- Would Doctors be criminally liable from removing life support
- Courts decided would not give rise to criminal liability. Intrepretating the removal of nutrition as an omisson
- Lord Goff: If a doctor does it is an omission but if not it is an act
LBW -> Struggled with physical movement of switching artificial nutrition or hydration
What implications are there with our inability to distinguish from acts + omissions. What are the alternatives?
- Scope and moral basis of liabiliy:** Elliot**. On what moral grounds can we blame people for what they do or fail to do
If we can not tell the line between act + omission, it becomes very morally and legally problematic to use it as basis of criminal liability
- Subject to judicial manipulation -> leaves criminal law in a very unceratin area
Duff - control requirement -> Did the D have control over the V
1st Element of Omissions in conduct crimes
1. Definition of crime must allow it
- Most result crimes (e.g. murder, gross negligence manslaughter, criminal damage)
- **NOT ** Any crime whose definition requires affirmative action, e.g. assault;
Ahmad (1986) 84 Cr App R 64
s1 Protection From Eviction Act 1977: ‘doing acts calculated to interfere with [V’s] peace and comfort.’ -> Omission can be used for conduct crime
2nd Element of allowing Omissions in conduct crimes
**1. Duty to act (Either CL or Statutory)
- Breach of that duty
- Breach causes resulting harm**
So previously we were explaining the elements of conduct crimes. Where there is an exception for liability what are the factors we look at for each element
Act element: Omission
Circumstance Element: Duty to act, Breach
**
Duties can Include:**
- Common Law or statutory duty
- Contractual Duty
- Relationship Based Duty
- Assumption of Care Duty
- Creation of a Dangerous Situation
Duty to Act: Omissions
Common Law: Dytham - Police watched a man get kicked to death
**Statutory Duty: **Domestic Violence, Crime and Victims Act 2004, ss. 5-6 (causing or allowing the death of a child or a vulnerable adult)
Contractual Duty - Pittwood
Based on Relationship - many cases
Assumption of Duty
Creation of a Dangerous Situtation
Duty to Act Based on Relationship
R v Hood [2003] for spouses**
Gibbins and Proctor: father and stepmother both convicted
Stone and Dobinson - children, siblings (no duty to act)
R v Evans - Sisters do not count
Assumption to take care of duty (Duty to Act)
Sometimes a duty will be assumed on you.
-* Nicholls * If you take someone in you have Duty of Care
- Instan - implied assumption of duty by niece from using aunt income + house
- Ruffell
- R v Bowditch - Couple messing around in harbour and left her there. No CL or statutory duty to act + Heavily criticised
R v Bowditch explanation as to why there is an assumption of duty
no
Stone v Dobinson
They were convicted of manslaughter by gross negligence.
The court said they had assumed a duty of care toward Fanny by:
Taking her into their home.
Trying (even a little) to help her
Stone v Dobinson - criticism
- Both D needed help themselves
- Made attempts to help Fanny
- Other people could have picked up on Fanny
Norrie - the concept of undertaking care was manipulated into action
Creation of a Dangerous Situation
- Miller
Went to sleep with lit cigarette and did not do anything to stop the smoke
Courts decided there should be a duty to act
Lord Diplock -> Correspondance principle does not matter here
This has been extended in Evans
Sister supplied the heroin while the sister suffered an overdose and stayed on the premises while the sister suffered an overdose
Sister was a user so could have identified the signs of overdose. Did not call for help. She was convicted. When D knows or ought to have known about a dangerous situation in a life threatening situation.
Should Evans count? She did not create dangerous situation but contributed.
This was not the only reason though. Family stayed on the premises at the time sister was injected + obvious signs of the drug and appreciated what sort of state she was in.
What is the case of Evans an example of by the courts + Critique
Trying to impose moral liability when there is not exactly a legal duty to act
Crosby (2018) - The weight attached to any of these undisputed facts is a mystery but it also leaves open the question of whether the conviction would have ben upheld without their presence
Issues with omissions liability
- Issues with causation (Evan) she just supplied the drugs (she had consent)
- Blurred boundaries between moral + legal duties [R v Bowditch] - these cases want to show that they are taking action. In doing, so they bend principles of omission liability
- Transparency - Stone v Dobinson -> If it is an omission there is a gender dynamic imposed in which if you are a woman you are more likely to have duty to act
Larry hates Harry and whilst they’re out on their usual Sunday walk, Larry pushes Harry onto a railway track intending him to be hit by the next train, which is due any minute. Larry runs away. Harry is injured by the fall and cannot get up. He calls for help.Gary, who is employed to operate the level-crossing, hears Harry calling for help, but as he’s in the middle of Sunday lunch, he decides not to get up and investigate.Jerry, the local police-officer is also in the vicinity doing his rounds. He also hears Harry’s cries but he doesn’t want to get involved as it’s 10 minutes to the end of his shift, and he doesn’t want a crisis to delay him from getting home in time for the football.Sally, Harry’s Mum, is walking by the railway track with her new boyfriend, Barry, when they hear Harry calling for help. Sally realises Harry’s in trouble but decides not to go and help because she thinks Harry is old enough to stand on his own two feet.Barry, who has never met Harry before, considers running to help but decides he doesn’t want to ruin his new shoes by getting them muddy. Shortly after, a train comes by and kills Harry.
Larry – dangerous situation?
Gary – contractual?
Jerry – common law?
Sally – relational? If Harry is above the age of 18 then no duty to act
Barry – no duty? Dependent on the age. If there is a duty it is under the assumption of duty, assumed to take care for Harry.
2nd element of 2nd type of allowance of Omissions liability
- No breach if performance of the duty was impossible Harding v Price
- No breach if the defendant’s conduct was justified Airedale v Bland
- For example if you did not act for a good reason - No breach if the D acted as reasonably as could be expected in the circumstances Miller
- Eg: Miller woke up and there was a fire to the whole house, very difficult for him to extinguish by himself but maybe ohone the police - Mere inadvertence is not enough R v Stone and Dobinson (need to be indifferent to obvious risk or foresaw risk and took it anyway).
R v Stone -> simple mistake not enough but gross deviaton from reasonabl
3rd element of the 2nd type of omissions liability
Breach resulted in harm
- Causation
So because D failed to act in accordance with their duty, the result came about
If D had acted in line with duty, it would not have done so
- R v Woodtreament and Anor
2nd exception to the general conduct rule requirement
Situational Liability
- Criminal liability simpy requires D to be in a prohibited situation
- Eg: s3(1) Dangerous Dogs Act 1991
R v Elvin -> Elvin owned two large dogs (American bulldogs).
The dogs escaped from his property through a poorly maintained gate and attacked and killed a man.
Elvin was prosecuted for owning a dangerously out-of-control dog under the Dangerous Dogs Act 1991.
The key point was foreseeability — it wasn’t enough that the dogs were dangerous in themselves — the owner had to be aware (or ought to have been aware) of the risk and failed to prevent it.
His failure to secure the gate and control the dogs amounted to gross negligence because it showed a reckless disregard for obvious danger**
Robinson - Pierre -> D facing charged under s3(1) BUT kept dogs on his premises properly secured BUT police had to forcefully enter. Dog escaped and bitten police officer in and out the house. Still liable regardless of third party interference? NOT IN ALL AND ANY CIRCUMSTANCES. STILL REQUIRED CAUSAUL LINK
Elvin made this statute. Robinson-Pierre not guilty
R v Robinson-Pierre is it consistent with R v Elvin?
NO, Robinson-Pierre did everything he could to stop the dogs from biting
Critiques of Situational Liability
Situational crimes - absence of ault are unpopular with commentators -> liability in absence of fault
- Danger of criminalising morally innocent people **R v Larsonneur **
- Is this fair considering the offences are triable by indictment and could carry a prison sentence
Facts: French women came to England and deported, left to Ireland who did not want her and sent back to England where she was charged as an alien
