Actus Reus Flashcards
What is actus reus?
Any Act, omission or state of affairs that is laid down in the definition of a particular crime along with any surrounding circumstances and any consequences of the act/omission requires by that definition
Result crimes
Require the production of a prescribed consequence
Conduct crimes
Require the mere adoption of a particular conduct
R v Deller
Actus reus requires defined circumstances:
D sold his car to P stating that car was “free from encumbrances”, was however believing to be lying to P. Unbeknownst to D, he was actually telling the truth and could not be convicted of making false pretences
When does the actus reus no conduct at all?
State of affairs: like being in possession of controlled drugs or being in charge of a vehicle while inebriated/drugged
Bell (per Lord Goff)
D’s conduct must be voluntary - the muscular movements by D constituting the relevant conduct must be under control of D’s conscious mind automatism
Like: driver attacked by bees, sudden blinding pain, sudden blackout
Bratty v A-G for Northern Ireland (Lord Denning orbiter)
Lord Denning includes sleepwalking as involuntary Act (automatism)
Leicester v Pearson
Car was knocked onto zebra crossing by speeding car behind him –> not voluntary, no responsibility
Statutory provisions for omissions
Motoring offences predominate - characteristically conduct crimes which penalise failure to act rather than the resulting harm
Example: s.19 Terrorism Act 2000 (failure to disclose information about terrorism)
Liability can also be precluded for omissions: Criminal Attempt Act 1981
Dytham
Offence of misconduct in public office can be committed through an omission - uniformed police officer failed to intervene when he saw a man being kicked to death 30 metres away
A-G’s Reference No 3 (2003)
Misconduct in public office arising from an omission - hospital staff informed police officers that the victim’s breathing had to be monitored but they failed to do so
Common law treatment of omission
Generally, common law does not impose any requirement on citizens to act unless there is a duty - the stranger is free to watch the blind man walk over the cliff or the child drown in a few inches of water
When might the court consider imposing a duty?
1) Close relationship
2) assumption of responsibility
3) doctor-patient relationship
4) Contractual duty
5) creation of a dangerous situation
Gibbins and Proctor
Father was convicted of murdering his child through omitting to act - failed to get medical assistance and the child died
Obligation to help your spouse?
Unclear. Case law seems to suggest only when they are helplessly dependent on you - not clear for able-bodied lovers
Hood
Obligation to help your spouse when they are “helplessly” dependent on you - husband was convicted of gross negligence manslaughter after failing to get medical assistance for 3 weeks after his osteoporosis suffering wife fell
Stone and Dobinson
A duty to Act can be assumed through albeit pathetic attempts to care for someone.
S’s younger sister Fanny who had anorexia came to live with the couple (“ineffectual and inadequate”, she was also partially blind and deaf). They made a half-hearted attempt to care for her - washed her, left her food, tried to call for help but ceased to provide care leading up to her death
Ruttell
Applied Stone and Dobinson - assumption of responsibility.
V became unconscious having taken drugs and D took various steps to revive him but panicked and left him outside where V died of hypothermia and opiate intoxication
Wacker
Applied Stone and Dobinson - assumption of responsibility.
Lorry driver knowingly took illegal immigrants as cargo in his vehicle (assumption).Closed air vent to stifle noise and go undetected by police. They died (60!!!) and he was convicted
Evans
Evans supplied her sister with heroine that Carly administered herself. Evans fear red she might overdose, recognising the symptoms and stayed in her room but did not call for an ambulance because she was on conditional licence and feared the authorities.
Evans had not taken acts to care for her sister Carly and could not be convicted under Stone and Dobinson BUT was convicted of gross negligence manslaughter under Miller principle: one person creates/contributes to a state of affairs which he knows/ought to have known has become dangerous –> duty arises to take reasonable steps to avert the danger
Airedale NHS Trust v Bland
Doctor-patient relationship –> duty to act (and continue treatment) IN NORMAL SITUATIONS.
Here, it was in the patient’s best interest to discontinue treatment (had been in a vegetative state for over 3 years after Hillsborough Stadium Disaster)
ALSO: if patient validly refuses treatment, doctors are required by law to discontinue even when it will be deadly
Frenchay Healthcare NHS Trust
Not strictly necessary to obtain court order before withdrawing treatment, might be impractical in emergency situations
Pittwood (employed by railway company to shut gate before trains were due –> victim was killed on crossing)
Where D is under a contractual duty to act, even if the terms of this specify that it is a private duty owed only to the other contracting party, it can be used in criminal law as a duty to the public generally
Instan
Contractual duty even when it is not immediately obvious - aunt gave niece money to look after her and buy food but she absconded with it –> convicted of manslaughter
Miller
Creation of a dangerous situation –> duty to act
A squatter fell asleep smoking, set his mattress on fire, noticed and ignored this and the house caught fire.
This was not recklessness - he became aware and still failed to take reasonable steps
HoL - no Heroes we’re expected, just call the fire brigade
Lord Diplock in Miller
“Supervening fault”: the series of events from the moment of your inadvertent act that created the situation to the moment when you omitted o avert are all part of a CONTINUING act - fault supervenes upon you failing to advert it once you are aware
Fagan v MP
Accidentally parked on police officer’s foot and then refused to move car - the series of events was part of a single continuing act, fault supervened after refusal although the dangerous situation was created inadvertently
DPP v Santana-Bermudez
Divisional court applied Miller principle in upholding conviction for ABH.
D lied that he had no more syringes in his pocket when he actually did and the police officer was stabbed by it when she searched him.
D had created a dangerous situation (exposing her to reasonably foreseeable risk) and therefore owed a duty to act
Hart and Honoré - what is causation?
Causation is established where D’s acts made a difference between normal life occurrences and disaster
Alan Norrie on the “making a difference” argument for causation
Individualist ontology: law proceeds on the assumption that we are all individual actors who are masters of our own fate, operating in isolation from any social context/forces
Pagett
Non-voluntary interventions by 3rd parties are not “free, deliberate and informed”: D used girlfriend as shield before shooting at policemen who returned fire and killed her.
–> reasonable act of self-preservation and D should have foreseen (Hoffmann)
ALSO: Where causation arises, it is up to the jury to decide whether the prosecution has established the necessary causal link
Two limbs of causation
1) factual causation: D’s conduct must in fact have caused the prohibited consequences
2) legal causation: D’s conduct must in law have caused the prohibited consequences
Factual Causation
As a matter of fact, D’s acts have to have played a role in bringing about the prohibited consequence - LOW THRESHOLD
murder/manslaughter: everyone dies so it’s causing an acceleration in its occurrence i.e. you can murder someone who is terminally ill
White
Factual causation: But for test
D put potassium cyanide in his mother’s drink, she drank half of it but then died of a heart attack. D’s acts were not a factual cause of his mother’s death, she would have died in the same way, at the same time regardlessly
Cheshire
As long as D’s cause is a SIGNIFICANT cause, it need not be the only cause or even the main cause
NOTE: low threshold - significant means more than minimal
Seems to overtake Jordan: intervening medical treatment has to be so independent of D’s acts and potent in causing death that D’s acts be one insignificant
Here, bullet wounds were healing but a tracheotomy was performed negligently
–> procedure stemmed from initial wound so D legally caused death
Legal Causation
Once you have but for causation, you also need legal causation
Question of public policy: factually we might have ascribed a causal connection between you and the proscribed result, but legally, should we attach moral blameworthiness?
Professor Glanville Williams on Legal Causation
Test for moral reaction - whether the result can fairly be said to be imputable to the defendant
Claire de Than and Russell Heston of Legal Causation
Infinitive consequences - at some point, is it legally fair to attribute these to D’s acts
Lord Hoffmann on Legal Causation - Empress Car v National Rivers Authority
No hard and fast principle, mostly common sense.
“I doubt whether abstract metaphysical theory is of much use. The notion of causation should not be over complicated.”
Substantial Cause
Overlap between factual and legal causation: Courts often say that D’s acts should be a substantial cause if it is more than a minimal cause the consequences (Cheshire)
Kimsey
A cause will be substantial as long as there was more than a “slight and trifling link”
Benge
Fact that 3rd parties also contributed will not absolve D, as long as D’s act was a substantive one
Here, foreman misread timetable and did not lift a piece of track. The fact that the driver was not properly on the look-out and that the flag man was not in regulatory distance did not absolve D:
Dalloway
Shows the overlap between factual and legal causation.
D was driving a horse cart without holding reins. Child jumped onto road. He was acquitted as Act wasn’t deemed morally culpable: even if he had been holding reins, the reaction time was so short that she would have died anyway
–> moral element of legal causation, but doesn’t that sound a lot like factual causation too i.e. ratio in White?
Lord Hoffmann of Intervening Acts - Express Car vNational Rivers Authority
“It is of course the causal significance of acts of third parties or natural forces that gives rise to almost all of the problems about the notion of ‘causing’
Law and common sense attach great significance to deliberate human acts/extraordinary natural events
Hart and Honoré: Intervening Acts
Either
1) “free, deliberate and informed” intervention of a 3rd party
2) abnormal Act/event coinciding with/supervening D’s conduct
Alan Norrie on “abnormality” and “voluntariness” of Intervening Acts
What is abnormal depends on social perception and therefore a sociopolitical label is stuck on it.
What is voluntary can be broad or narrow, depending on how much one recognises the social character of life
Hart and Honoré on natural events intervening
If D knocks V unconscious and leaves them by the sea so that V is drowned by the incoming tide, D has legally caused V’s death - natural event of tide is not unnatural or unforeseeable.
If V however is killed by a lightening strike, courts might take this as an extraordinary and hence superseding D’s conduct
Pagett || Empress Car
A “free, deliberate and informed” act between D’s act and its ultimate consequence can break the legal chain of causation
Campbell | Yateman | Henry
Where the 3rd party’s intervention is not independent of D or their acts form part of the same chain of events as D, D remains causally responsible
Here, Campbell, Yateman and Henry attacked V and Y came back later to perform another attack on V. Held, that on medical evidence, the earlier attack was a significant cause of death. Y’s act was not fundamental enough to amount to an intervening act
The CURENT law on intervening acts in drug cases
Kennedy No 2: reestablished orthodoxy - a voluntary and informed decision by a victim with full capacity is not caused by another
Dalby
A mere supplier of heroin did not cause the user’s death as the self administration is a free, deliberate and informed act
The original Kennedy in 1999
Departure from the established principle on intervening acts in drug cases: D as a mere supplier was found to have legally caused V’s death.
Dalby was distinguished - gone beyond mere supplier by preparing syringe = encouragement to inject
Dias
Tried to return to orthodoxy as to intervening acts in drug cases: simply distinguished The original Kennedy on technicality (here Causation not left to the jury)
IMPLIED: chosen self-administration would break chain of causation. Only when forced or mentally incompetent…
Rogers
Does not follow Dias - perpetuated the error made in original Kennedy
D applies tourniquet to V’s Act , V self-insects and Rogers is held guilty of unlawful act manslaughter. The CoA argued that the application of the tourniquet is part of the continuing act of self-injection. Therefore Rogers commits unlawful act of s23 administering a noxious substance under OAPA 1861. This unlawful act accompanied by death = unlawful act manslaughter
Finlay
Returned to the original Kennedy, introducing foreseeability of V’s injection as continuing chain of causation
Kennedy No 2 (CoA, not HoL that is authority now)
Criminal case review: remove problem of causation by presenting drug supply cases as joint enterprise crimes - reduction of D cause V to administer to D administered to V
REJECTED in Kennedy No 2: not acting in concert/jointly responsible because V had a CHOICE, knowing the facts of whether to inject
Timeline in the drug supplier cases
Dalby The original Kennedy Dias Rogers Finlay Kennedy No 2 2005 Kennedy No2 2007
Grindler
The free, deliberate and informed test in Kennedy No2 does not apply to death by dangerous driving/ causing death by careless driving.
In such situations, the chain of causation will be broken by the intervening act of another that was not reasonably foreseeable, even if that act was not free, deliberate and informed
Empress Car
Public policy for holding D responsible despite free, deliberate and informed intervention of natural event/3rd party
Charged with pollution even though a 3rd party had caused the oil to flow into a river.
HoL: such an Intervention was foreseeable. Lord Hoffmann - left tanker in precarious situation –> like a natural event
De Than and Heaton on Empress Car
Fallacy in Lord Hoffmann’s argument: voluntary human acts = natural events. It has never been necessary for the free, deliberate and informed Act of a HUMAN 3rd party to be extraordinary/unforeseeable
Criminal responsibility based on personal autonomy and ownership of consequences
Micheal
A 3rd parties Act will not be intervening if it’s not informed: D, intending the death of her child, handed a bottle of poison to foster mother stating it was medicine –> foster mother not guilty of child’s death
Williams
“Escape” case: intervening acts of the victim do not break chain as they are not free, providing V’s response was understandable in the circumstances and not unexpected or “daft”
NOTE: jury should bear in mind any particular characteristics of V and that in the agony of the moment they might act without thought or deliberation
Corbett
Intervening acts of V: particular characteristics of V (subjective)
Victim being drunk/mentally ill has to be taken into account assessing what response D could have expected –> only applies when D is aware/reasonable person in those circumstances would have been
Marjoram
Intervening acts of V: “reasonable foresight” test is objective - particular characteristics of D irrelevant
Hayward
Thin skull rule: take your victim as you find it
D chased wife into the street and she collapsed and died due to overexertion and a pre-existing thyroid condition of which D was unaware –> D caused death because he took her in the condition he found her in
Blaue
Extended thin skull rule in Hayward: does not only include physical characteristics but also mental aspects of V
Here, V was a Jehovah’s Witness and refused blood transfusion after being injured by D, that probably would have saved her life
–> legally caused her death
Blaue vs. Williams
Escape cases - unforeseeable acts by V break chain, according to thin skull rule they don’t?
DeThan: limiting thin skull rule to preexisting physical conditions.
However, she believes Blaue is based on direct injury persisting as substantial and operating cause at time of death
Smith
Even if medical treatment contributes to death, if initial wound is still a “substantial and operating” cause at time of death, then D has caused death (no break)
Here, V was stabbed with a bayonet in a barrack room brawl in Germany - dropped twice on the was to hospital, given wrong treatment (right treatment = 75% survival chance)
–> D still convicted - only break if second cause is so overwhelming as to make the original wound merely part of history
Malcherek
Discontinuance of medical treatment which allows the initial wound to take its natural course and end in death will not break chain of causation between D’s Act and consequence
Dear
Even if V’s wounds have been properly treated and then re-opened (accidentally or by V) and V does nothing to stop the bleeding, D will still be legally responsible for V’s death as the initial wound is still substantial and operating cause of death
Dahliwal
Had there been an identifiable psychiatric condition linked to D’s abuse then he would have been legally responsible for the death of his wife
Jordan
Initial cause became “merely part of history” (Smith) due to intervening medical treatment: V had substantial,y recovered but hospital persisted with treatment of antibiotics he had already shown himself intolerant to
M.S Moore on but for test
But for test makes irrelevant factors causal: if a vase falls off the table and shatters, the fact that it was not made of unbreakable material becomes causal
Hughes
SC’s criticism of how causation was applied by CoA in Williams [2010 NOT escape case]:
court accepted that no fault could be attributed to D but since he was driving without insurance/licence he was convicted of causing death while driving without licence/insurance under Road Traffic Act 1988
Factual causation sufficient to convict, CoA argued Parliament intended to remove legal causation (already created other low fault level driving offences)
SC in Hughes argued there must be more than mere but for test, some moral culpability, term “caused by driving” already imported legal causation into statute
Lowe
Liability will not be imported for an omission under the heading constructive manslaughter. Only possible basis for liability is atm gross negligence manslaughter
Adomako
D must owe a duty of care before gross negligence manslaughter will arise
Elliott on liability for manslaughter by omission
Current law is unnecessarily restrictive in requiring both a duty to act under common law and a duty to care under civil law
- Adomako
Critique of common law rules on duty to act
Grenville Williams: categories (assumption of responsibility, relationship…) are too narrow and uncertain
Law Commission in 1989: categories so uncertain they’d be impossible to codify
Lord Mustill in Bland: recreated this
CoA in Sinclair: courts openly favour incremental development of relationships which give rise to a duty to act –> great uncertainty as to wether conduct criminal
Padfield on omission in homicide vs. omission in pollution cases
Pollution cases: Empress Cars, Alphacel –> judges have taken omissions to be positive acts in themselves and thus constitutive of liability whereas in homicide, omission will not usually result in liability (unless under duty to act)
Quotes Ashworth: this is unsustainable and evidence of “puissance of legal over factual causation
Argument: factual vs. legal causation
Williams: factual > legal, restated by Hughes - some legal causation
Pollution cases: legal > factual (intervening acts)
