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Criminal Law > Chapter 2 - Objective elements of the offence (Actus reus) > Flashcards

Chapter 2 - Objective elements of the offence (Actus reus) Flashcards

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1
Q

What are the 3 objective elements of the actus reus of an offence

A

I. conduct = element of the crime
II. circumstances = makes the act wrongful
III. consequences = e.g. manslaughter –> death of another

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2
Q

Framework Bipartite

A
  1. Actus reus
    - was there an act/omission?
    - was it unlawful?
2. Mens rea 
descriptive aspect:
- was there intention/negligence?
normative element: 
- was he to blame?
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3
Q

Framework Tripartite

A
  1. Offence description = legal elements of the offence
    a) objective element = Actus reus = was there an act/omission/conduct/consequences/circumstances
    b) subjective element = Mens rea = was there an intention/negligence/fault element (descriptive aspect)
  2. Unlawfulness = wrongdoing
  3. Blameworthiness (normative element)
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4
Q

Actus Reus (Criminal conduct)

A

Traditionally = a willed bodily movement
Excluded are: thoughts, feelings, desires, ideologies
Furthermore: All conduct not controlled by the will e.g. reflexes, spasm, sleepwalking

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5
Q

Conduct (GER/NL)

A
  1. fulfill the legal elements of an offense
  2. be unlawful and
  3. there must be guilt on the part of the defendant

If 1 is fulfilled then 2 and 3 are presumed unless there are justifications or excuses

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6
Q

Theories of conduct - the causal theory of action (the ghost in the machine)

A
  • criminal act consists a willed bodily movement
  • based on 19th century dualist concept => man as creatures of animus + corpus = human will as the cause of physical action as willed bodily movement
  • theory is in the English penal system still accepted
  • used to be the prevalent theory in GER + NL
  • the content of the will plays no role
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7
Q

Theories of conduct - The theological theory of action

A
  • the content of the will (aim) constitutes an element of the very concept of action
  • human conduct is “seeing” not blind
  • nature + meaning of human action cannot be understood unless one also knows the actor’s purpose e.g copying banknotes: joke vs. trying to betray people

Problem:

  • omissions do not fit the description of conduct bc. of strict focus on human behavior and willed bodily movements
  • description of conduct (willed bodily movement) is unworkable by corporate wrongdoing
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8
Q

Theories of conduct - The social theory of action

A
  • conduct needs to be interpreted in social context in which the act occurred (is not fixed and social negotiated) = determines its relevance for the attribution of criminal liability
  • prevails in GER + NL penal systems
  • In E more and more acceptance in the evaluation of actus reus

Problem:
- By omission/negligence liability it is difficult to claim that the person acted in a goal orientated way

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9
Q

Purpose of omission liability

A

Imposes basis for criminal liability (especially in a risk society)

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10
Q

On what are the duties of care based?

A
  1. Close personal relationship
    => duty for parents
    => spouses in medical need
    => no duty for adult siblings + friends (but adult siblings can be creation of dangerous situations)
  2. undertaken duties/mutual trust
  3. specific qualities of offender (e.g doctor)
  4. ownership or responsibility = source of danger
  5. creation of dangerous situations
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11
Q

Good samaritan offences

A
  • should we be obliged to act?
  • No statutory offence in E/Wales bc. of individual autonomy
  • GER: § 323c StGB = Unterlassene Hilfeleistung
  • NL: Art. 450 DCC = omission to effect an easy rescue
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12
Q

Good samaritan offences - difference GER/NL

A
  • G: concept of legality is much more strictly

- warns citizens that omission can be bases for criminal liability

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13
Q

Commission by Omission/Improper Omission

A
  • NL + ENG = based on case law
  • GER: § 13 StGB
  • NL: Art. 307 DCC killing = also letting die
  • principle of legality requires that we have clear and strict interpretation that the scope of liability is defined
  • is the bystander not helping a person in need criminal liable for (negligent) manslaughter
  • Duties of care
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14
Q

Commission by Omission GER

A
  • statute

- Distinction between supervisory and protector

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15
Q

Commission by Omission NL

A
  • criminal liability can arise from failure to act

- unproblematic, flexible act requirement

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16
Q

Commission by Omission

A
  • accepted only where the general duty outweighs the individual autonomy
  • interpretive approach
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17
Q

Dennis case 2007

A
  • Close personal relationship Parents
  • Parental duty also covers abuse cases
  • Parents have strong duty to protect
18
Q

R v Hood 2003

A
  • Close personal relationship spouses in medical need = matrimonial duties
19
Q

R v Evans 2009

A
  • Creation of dangerous situation

- No duty for sister that overdosed due to close relationship but for creation of dangerous situation

20
Q

Lewin v Crown Prosecution Service 2002

A
  • Friendship as the duty of care
  • No duty based on Friendship => death not foreseeable
  • But creation of dangerous situation possible
21
Q

Jomanda Case (NL) 2009

A
  • specific qualities
  • not liable bc. no medical profession
    Employers, civil servants, doctors: conduct has to be judged by the standard of a reasonable person from the same profession
22
Q

Act/Omission distinction

A

Criminal liability requires a positive act or an omission

a) pos. action + mens rea etc. = liability
b) omission + mens rea etc. + violation of duty of care = liability

23
Q

Different doctrinal approaches

A

I. Ontological approach
=> Focus on (absence of) bodily movements (but while we fail to act we may do lots of other things)

II. Normative approach
=> is the emphasis of the reproach based on action or omission (value judgement which cannot be reviewed objectively)

III. Semantic case by case approach
=> can conduct best be described as act or omission? No obj. criteria = digression of courts

24
Q

Switching of life support England

A

N.H.S. Trust v Bland 1993

may doctors lawfully discontinue treatment?

HoL:

  • Switching of life support = omission to treat
  • focus on doctor’s duty of care
  • doctor’s do not have a duty to continue treatment that is no longer in the patient’s best interest

Problem: If switching life support is considered to be an act then
=> doctors would be liable for murder
=> distinction of act/omission is arbitrary
=> ethical debate: individual autonomy vs sanctity of human life

HoL: If an intruder (Eindringling) switches off life support = act => liability for murder will arise

25
Q

Switching of life support GER

A

BGH NSt 2010, 630

Paradox: How can one conduct be an act & an omission?

=> If it’s an omission by doctors it must be an omission by everyone else?
=> therefore decision of BGH: switching off life support = act
=> But conduct is justified due to “withdrawal of treatment” defence = therefore not an wrongful act

26
Q

Which crime distinctions does it give?

A

I. conduct crimes

II. result crimes

27
Q

What are conduct crimes?

A
  • crimes of harmful actions

- wrongdoing is inherent to the conduct => no result required e.g rape/theft

28
Q

What are result crimes?

A
  • crimes of harmful consequences

- connecting a certain conduct with a certain result = causal link e.g homicide, arson (Brandstiftung)

29
Q

Why does causation matter

A
  • protection of individual autonomy
  • connecting D’s wrongful conduct with the occurred harm

Problems:

  • causing or accident?
  • Problem of breaking the chain of causation by unforeseen/extraordinary events or by foreseeability
30
Q

Conditio sine qua non

A
  • “but for test”
  • conduct in question must have been an indispensable condition for the result
  • no causal relationship if the result would have occurred without conduct
  • assumption for factual cause: notion of causality applied in natural science would apply in law as well but scientists starting point = lawyer’s end point
  • In science the cause leads to a hypothesis which has to be experimentally confirmed <=> in criminal law confirmation is not required and stops with a formulation of a hypothesis
31
Q

Proximate-cause

A
  • can limit many remote causal factors
  • cause closest to result is the relevant one
  • in E reflected in novus actus interveniens (a new intervening act)
    It is an act or event that breaks the causal connection between a wrong or crime committed by the defendant and subsequent happenings. The new event relieves the defendant from responsibility for the happenings => breaks the chain of causation => based on individual autonomy
32
Q

Adequate causation

A
  • Most adequate cause of result
  • A condition is the adequate cause of a consequence if it has a tendency according to human experience and in the ordinary cause of events to be followed by such a consequence
  • goal: was the end result reasonably foreseeable?
33
Q

Causation as a Meta-physical concept

A
  • linked to notions of causation outside the law

e. g logic, natural science, heart-attack

34
Q

Causation as a legal concept

A
  • Causation in criminal law should provide a attribution of liability => establishing criminal liability
35
Q

Causation test NL

A
  • theory of reasonable attribution (=a legal concept but traditional test still shines through)
  • includes a normative judgement
  • D’s conduct need not to be the sole cause of the harm => preconditions rarely matter = take the V as it is found

3rd party:

  • third party conduct may contribute to the result
  • Non-voluntary conduct of 3rd parties do not break the chain (Girlfriend as shield case)
36
Q

Causation test GER

A
  • necessary conditions are causes of result that cannot be dominated without eliminating the result
  • causality as a meta-physical concept
  • D’s conduct need to be the sole cause of the harm
  • preconditions rarely matter = take the V as it is found
  • all necessary conditions have equal value

3rd party:
third party conduct may contribute to the result
- Non-voluntary conduct of 3rd parties do not break the chain (Girlfriend as shield case)

37
Q

Causation test ENG

A
  • Common sense is used to determine the cause
  • contributory conditions excluded
  • Accidents vs things going as usual
  • preconditions rarely matter = take the V as it is found
  • Predisposition (Neigung) rarely breaks the chain of causation

3rd party:
third party conduct may contribute to the result
- Non-voluntary conduct of 3rd parties do not break the chain (Girlfriend as shield case)

38
Q

NL; GER; ENG natural events

A
  • extraordinary and not foreseeable natural events break the chain of causation
  • extraordinary but foreseeable natural events do not break the chain of causation
39
Q

NL; GER; ENG medical intervention (voluntary conduct)

A
  • medical treatment corresponding with the legis artis does not break the chain of causation
  • chain is broken only if the treatment was grossly negligent
40
Q

Conduct NL

A
  • V’s conduct after D’s act
  • Refusing a life saving surgery does not break the chain of causation if it’s the lesser of two evil (e.g extreme injury)
41
Q

Conduct GER

A
  • V’s conduct

- chain not broken unless the conduct of V draft

42
Q

Conduct ENG

A
  • V’s conduct

- V preconditions and conduct do not break the chain of causation (take the V as it is found)

Criminal Law (2 decks)

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