actus reus

Question 1

What was Lord Diplock’s criticism of the terms actus reus and mens rea?

Answer 1

He preferred to speak of ‘the conduct of the accused and his state of mind at the time of that conduct’, rather than use the Latin terminology (Miller [1983] 2 AC 161)

Question 2

What is the general rule in English law?

Answer 2

For a person to be liable for a criminal offence, he must have brought about a certain prohibited state of affairs by his conduct, and this must be accompanied by a certain state of mind

• But crimes of strict liability don’t require any particular state of mind

Question 3

what are the 3 aspects of the actus rei? (not all have to be involved)

Answer 3

1. Proof that D did a particular act,
2. Proof that that act caused a particular result, and
3. Proof that that act or result occurred in certain circumstances

Question 4

what two types of crimes are there?

Answer 4

Conduct

• Require proof only that the defendant did an act
• No need to demonstrate that act produced a particular result
• E.g. possession of prohibited drugs

Result

• Require proof not only that the defendant performed a particular act, but also that that act produced certain results
• Need to establish causation
• E.g. murder, battery

Question 5

‘voluntary act’ requirement

Answer 5

Proof the defendant performed a voluntary act, except when

• Committed by omission
• Only proof of state of affairs is required (strict liability)
• Convicted in respect of the actions of another

Lord Denning in Bratty v Attorney-General of Northern Ireland (1963): “the requirement that it should be voluntary is essential…in every criminal case”

Question 6

Kay v Butterworth (1945)

Answer 6

The accused was found guilty of careless driving even though he had fallen asleep at the time the accident occured. at some point he had continued to drive whilst feeling sleepy and this was deemed to be a voluntary act.

Question 7

omissions

Answer 7

• criminal liability arises when the defendant fails to act, where s/he is under a particular duty to act in a certain way
• can be understood in terms of ‘relational’ and ‘action’ categories

Question 8

Ahmad (1986) (omissions)

Answer 8

Some crimes cannot be committed by omissions and require an act to be committed (statutory crimes)

• Defendant charged with an offence under the Protection from Eviction Act 1977
• Required proof of the defendant ‘doing acts calculated to interfere with the victim’s peace and comfort’
• But defendant had only failed to carry out alterations on the victim’s home à premises uninhabitable – so failure to carry out the alterations was not an ‘act’

Question 9

what are the ways in which a duty to act arises?

Answer 9

1. statutory duty
2. law enforcement
3. contractual duties
4. assumed duties
5. ownership/control of property
6. continuing act
7. creation of danger

Question 10

Mavji (1987) (statutory duty)

Answer 10

Offence of cheating the public revenue

Michael Davies J: “This appellant was in circumstances in which he had a statutory duty to make the VAT returns and to pay over to the Crown the VAT due. He dishonestly failed to do either. Accordingly he was guilty of cheating Her Majesty the Queen and the Public Revenue. No further act or omission required to be alleged or proved.”

Question 11

Dytham (1979) (law enforcement)

Answer 11

• A police officer from St. Helens, witnessed the death of a nightclubber outside Cindy’s nightclub but took no action to help because had he reported it then he would have had to stay beyond the end of his shift. The defendant was convicted of the common law offence of misconduct in a public office.
• The court rejected the defendant’s contention that this offence required malfeasance, or at least misfeasance, and did not extend to non-feasance.
• The court held that as a police officer, he had a duty of care to all of society, unlike civilians, in which case, there is no duty to put oneself at harm.

Question 12

Pitwood (1902) (contractual duty)

Answer 12

• Defendant was employed as a gatekeeper on a railway line – failed to close the gate and perform his duties as required à accident in which a train hit a cart and a man was killed à liable for manslaughter as his failure to do so was a breach of his contractual duty
• But contractual duty owed to employer, and not to victim?

Question 13

assumed duties - parent-child

Answer 13

Domestic Violence, Crime and Victims Act 2004 s5 creates a specific offence of causing or allowing the death of a child

• Gibbons and Proctor (1919) 13 Cr App R 134 (CA)
  
  • Failed to feed the child and the child died of starvation
• Emery (1993) 14 Cr App R (S) 394 (CA)
  
  • Stood by and let another person harm his/her child

But if the child has reached the age of majority the legal duty towards the child may come to an end

• Sheppard (1862)
• Child and Young Persons Act 1933 s1 – duty not to neglect the child, ending when the child reaches the age of 18

Other provisions

• Mental Capacity Act 2005 s44 – offence to willfully neglect a person lacking mental capacity
  
  • R v Patel (2013) EWCA Crim 965

Question 14

Shepherd (1862)

Answer 14

• D the mother of a girl aged 18 who died during childbirth. During labour she was taken into the house of her stepfather during his absence. The mother omitted to obtain the assistance of a midwife, and her daughter died. There was no evidence that the mother had the means to pay the midwife.
• Held: She was not legally bound to procure the aid of a midwife, and she could not be convicted of manslaughter for not doing so, there being no duty toward a daughter aged 18.
• Erle, CJ: “ Here the girl was beyond the age of childhood, and was entirely emancipated.”

Question 15

assumed duties - spousal

Answer 15

• Long-term partners may fall into this definition
• People v Beardsley (1907) (American case) was an exception – held a man didn’t owe a duty to his lover who took morphine in his presence

Question 16

Hood (2003) (assumed duties - spousal)

Answer 16

Court of Appeal upheld a husband’s conviction of gross negligence manslaughter, where had failed to summon medical attention to his wife – a sufferer of osteoperosis – after she fell and broke a number of bones

Question 17

assumed duties - other relationships

Answer 17

Do children owe their parents a duty?

• Courts appear less willing to impose duties outside the parent-child relationship
  
  • Evans (Gemma) (2009) EWCA Crim 650
• But more willing to do so in the case of disability
  
  • Lewin v CPS (2002) EWHC 1049 vs R v Stone; R v Dobinson (1977)
• In the former no prosecution was brought, whereas in the latter the defendants were convicted in spite of their low mental capacities

Still not clear, however, what is crucial to the finding of a duty

Question 18

ownership/control of property

Answer 18

If someone owns a piece of property and another person in his/her presence commits a crime using that property, the owner is under a duty to seek to prevent the crime insofar as is reasonable

Question 19

Tuck v Robson (1970) (ownership/control of property)

Answer 19

• pub landlord didn’t make his customers leave
• was convicted of aiding their consumption of alcohol after time
• simply calling “time, glasses please” and turning off the main lights wasn’t enough
• failure to prevent is taken as abetment –> no need to prove that the omission did in fact encourage or assist the principal

Question 20

Smith v Littlewoods (1987) (assumed duties - other relationships)

• Does a neighbor owe another neighbor a duty of care?
• also relevant to tort - negligence

Answer 20

• Littlewoods Organisation Ltd bought a cinema in 1976. They intended to demolish it and build a supermarket. After some initial work in June it was unattended. Sometimes children broke in, and on one occasion vandals set fire to some old film, and the cinema itself. On 5 July 1976, vandals started a larger fire and the cinema burnt down, damaging a neighbouring cafe, billiard saloon and church. The neighbours claimed damages.
• The instant court held the fire was reasonably foreseeable. Littlewoods appealed, arguing it had no knowledge of previous attempts to start the fires. The First Division of the Inner House of the Court of Session allowed Littlewoods’ appeal, and the matter was appealed again to the House of Lords.
• Held by HL: since there was nothing inherently dangerous about an empty cinema, i.e. it was not a source of risk. The only thing that could possibly have prevented a fire would be a 24-hour guard on the premises and that would be an intolerable burden to impose on the owners in this case. Mere foreseeability of damage was not sufficient basis to find liability

Question 21

Fagan v Metropolitan Police Commissioner (1969)(continuing act)

Answer 21

• The defendant, Mr. Fagan, was in his car when a police officer approached him and told him to move his car. In accordance with the directions, Fagan backed his car up, accidentally rolling it onto the foot of the officer. When the officer yelled at him to move his car off his foot, he cursed back at him, told him to wait, and refused to move.
• At trial, Fagan was convicted of “Assaulting a constable in execution of his duties”. Fagan appealed on the grounds that there can be no offence in omitting to act and that the act of driving onto the constable’s foot was done completely by accident so there was no mens rea.
• The Divisional Court agreed that assault cannot be committed by an omission. However, in this case, the crime was not an omission to move the car; rather, it constituted a continual act of battery. The offence was not complete until the moment Fagan realised that he had driven onto the foot of the officer and, in deciding not to cease this continual act, formed an intent amounting to the mens rea for common assault. Since both mens rea and actus reus were present, an assault had been committed, and Fagan’s conviction was upheld.
• Also demonstrates an example of creating a dangerous situation, an omission such as that of R v Miller who set fire to a house not of his property and failed to contain or control the situation but instead ignored the situation, and found guilty of recklessly causing injury by omission.

Question 22

R v Miller (1983) (creation of danger)

Answer 22

• Lord Diplock: “Cannot see any good reason why, so far as liability under criminal law is concerned, it should matter at what point of time before the resultant damage is complete a person becomes aware that he has done a physical act which, whether or not he appreciated that it would at the time when he did it, does in fact create a risk that property of another will be damaged, provided that, at the moment of awareness, it lies within his power to take steps”
• Problem was the requirement that the actus reus and mens rea of the offence must exist at the same moment in time – at the time when the defendant had the mens rea he wasn’t doing anything
• Overcome by finding the defendant had a duty to stop the fire because he had started it and that on leaving the room in breach of his duty to act it fulfilled the criteria of actus reus
• Upheld in Evans (2009) EWCA Crim 650

Question 23

requirements if there’s a duty to act

Answer 23

Defendant must do what is reasonable

• But – reasonable to an ordinary person, or in his/her particular circumstance?
• Stone v Dobinson seemed to adopt the former (ignored defendants’ disabilities)
• R (Jenkins) v HM Coroner for Portsmouth and South East Hampshire and Cameron and Finn (2009)
  
  • Courts rejected argument that the defendants breached their duty to him to summon help because they were merely respecting his decision not to summon help

Must be shown that the omission caused harm

• Dalloway (1847) 2 Cox CC 273

Question 24

Dalloway (1847) (omissions must cause harm)

Answer 24

• D was driving a horse and cart without holding the reins tightly
• A child ran in front of the cart, was run over and killed
• Expert evidence claimed that even if he had been holding the reins tightly, he would not have been able to stop the cart in time
• Therefore, the ‘culpable element’ of his act (negligently not holding the reins tightly) was not in fact the legal cause of the consequence

Question 25

acts-omissions distinction

Answer 25

Ashworth: “there are many ambiguous cases in which the act-omission distinction should not be used as a cloak for avoiding the moral issues”

courts have not been consistent in interpreting references to ‘acts’ as necessarily excluding omissions

• Speck [1977]: held that an omission (to remove the hand of an 8 year-old from D’s private parts) could amount to an ‘act’ of gross indecency with a child.