Chapter 2 - Objective elements of the offence (Actus reus) Flashcards
What are the 3 objective elements of the actus reus of an offence
I. conduct = element of the crime
II. circumstances = makes the act wrongful
III. consequences = e.g. manslaughter –> death of another
Framework Bipartite
- 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?
Framework Tripartite
- 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) - Unlawfulness = wrongdoing
- Blameworthiness (normative element)
Actus Reus (Criminal conduct)
Traditionally = a willed bodily movement
Excluded are: thoughts, feelings, desires, ideologies
Furthermore: All conduct not controlled by the will e.g. reflexes, spasm, sleepwalking
Conduct (GER/NL)
- fulfill the legal elements of an offense
- be unlawful and
- 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
Theories of conduct - the causal theory of action (the ghost in the machine)
- 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
Theories of conduct - The theological theory of action
- 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
Theories of conduct - The social theory of action
- 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
Purpose of omission liability
Imposes basis for criminal liability (especially in a risk society)
On what are the duties of care based?
- 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) - undertaken duties/mutual trust
- specific qualities of offender (e.g doctor)
- ownership or responsibility = source of danger
- creation of dangerous situations
Good samaritan offences
- 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
Good samaritan offences - difference GER/NL
- G: concept of legality is much more strictly
- warns citizens that omission can be bases for criminal liability
Commission by Omission/Improper Omission
- 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
Commission by Omission GER
- statute
- Distinction between supervisory and protector
Commission by Omission NL
- criminal liability can arise from failure to act
- unproblematic, flexible act requirement
Commission by Omission
- accepted only where the general duty outweighs the individual autonomy
- interpretive approach
Dennis case 2007
- Close personal relationship Parents
- Parental duty also covers abuse cases
- Parents have strong duty to protect
R v Hood 2003
- Close personal relationship spouses in medical need = matrimonial duties
R v Evans 2009
- Creation of dangerous situation
- No duty for sister that overdosed due to close relationship but for creation of dangerous situation
Lewin v Crown Prosecution Service 2002
- Friendship as the duty of care
- No duty based on Friendship => death not foreseeable
- But creation of dangerous situation possible
Jomanda Case (NL) 2009
- 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
Act/Omission distinction
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
Different doctrinal approaches
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
Switching of life support England
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
Switching of life support GER
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
Which crime distinctions does it give?
I. conduct crimes
II. result crimes
What are conduct crimes?
- crimes of harmful actions
- wrongdoing is inherent to the conduct => no result required e.g rape/theft
What are result crimes?
- crimes of harmful consequences
- connecting a certain conduct with a certain result = causal link e.g homicide, arson (Brandstiftung)
Why does causation matter
- 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
Conditio sine qua non
- “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
Proximate-cause
- 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
Adequate causation
- 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?
Causation as a Meta-physical concept
- linked to notions of causation outside the law
e. g logic, natural science, heart-attack
Causation as a legal concept
- Causation in criminal law should provide a attribution of liability => establishing criminal liability
Causation test NL
- 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)
Causation test GER
- 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)
Causation test ENG
- 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)
NL; GER; ENG natural events
- extraordinary and not foreseeable natural events break the chain of causation
- extraordinary but foreseeable natural events do not break the chain of causation
NL; GER; ENG medical intervention (voluntary conduct)
- medical treatment corresponding with the legis artis does not break the chain of causation
- chain is broken only if the treatment was grossly negligent
Conduct NL
- 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)
Conduct GER
- V’s conduct
- chain not broken unless the conduct of V draft
Conduct ENG
- V’s conduct
- V preconditions and conduct do not break the chain of causation (take the V as it is found)
