Herring - Ch 2

Question 1

Actus reus - definition

Answer 1

> The conduct element of the offence.
The actus reus describes what the D must be proved to have done (or sometimes failed to do), in what circumstances, and with what consequences in order to be guilty of a crime.

Question 2

Mens rea - definition

Answer 2

> The mental element of the offence.

>This may be, e.g., intention, recklessness, or negligence.

Question 3

Conduct crimes

Answer 3

> Require proof only that D did an act.
There isn’t a need to demonstrate that the act produced a particular result.
E.g. possession of prohibited drugs.

Question 4

Result crimes

Answer 4

> Require proof that D not only performed a particular act but that that act produced certain results.
E.g. murder requires proof that D’s act caused the victim’s death.

Question 5

The Voluntary Act Requirement

Answer 5

> Many criminal offences require proof that D performed a voluntary act.
But not always, e.g. omission, conviction in respect of another’s actions.
Lord Denning: “The requirement that it should be a voluntary act is essential… in every criminal case.” (Bratty v A-G of N.1 [1963] AC 386.
What is meant by word ‘act’ here?
So many exceptions some argue rule doesn’t exist:
-omissions
-situational offences
-liability for acts of another person

Question 6

Omissions - general

Answer 6

> D is only guilty of a crime when failing to act where:
-D is under a duty to act
-D breached the duty
-D’s breach caused the harm to the victim.
There are some statutory crimes which in their definition require an act to be committed. E.g. Ahmad (1986) - failed to carry out alterations on victims house but wasn’t an act so Protection from Eviction Act 1977 didn’t apply.

Question 7

Omissions - when is D under a duty to act?

Answer 7

1. Statutory duty.
2. Duties of law enforcement.
3. Contractual duty.
4. Assumed duties.
5. Ownership or control of property.
6. Continuing act.
7. Creation of the danger.
8. Novel situations.

Question 8

Omissions - when is D under a duty to act? Statutory duty

Answer 8

E.g s. 6 of Road Traffic Act 1988 required driver to provide sample of breath when required to.

Question 9

Omissions - when is D under a duty to act? Duties of law enforcement

Answer 9

> Police officers are under a duty to assist members of the public in danger.
If officer asks a citizen to assist him in restoring the peace, the citizen is under a duty to offer the assistance.

Question 10

Omissions - when is D under a duty to act? Contractual duty

Answer 10

> Pittwood 1902:
-Gatekeeper failed to close gate when required so he was liable for manslaughter when man died in cart and train collision.

Question 11

Omissions - when is D under a duty to act? Assumed duties

Answer 11

> Voluntarily assumed responsibility for another’s welfare under duty to care for them.
Assumption of responsibility may be express or implied.
Some duties arise automatically: Sheppard 1862 held that no duty owed by parent to an 18-yr-old daughter.

Question 12

Implied assumption of responsibility

Answer 12

A person has regularly offered assistance to another so a mutual understanding of responsibility can be assumed.

Question 13

Duty of care case

Answer 13

> R v Stone and Dobinson [1977] QB 354 (CA):

• Controversial as the two accused had low capabilities and were barely able to look after themselves never mind Fanny too, but it was found they had assumed responsibility for her by previously trying to get a doctor, doing her washing and trying to feed her.
• They were obliged to summon help or care for Fanny themselves when she became so infirm.
• Fanny had anorexia nervosa.

Question 14

Omissions - when is D under a duty to act? Ownership/control of property

Answer 14

> May be that someone using another’s property to commit a crime in the owner’s presence means owner undy duty to prevent it as so far as possible.
Normally cases of aiding or abetting a crime.

Question 15

Omissions - when is D under a duty to act? Continuing act

Answer 15

> Fagan v Metropolitan Police Commissioner [1969] 1 QB 439.

Question 16

Omissions - when is D under a duty to act? Creation of danger

Answer 16

> Where someone has created a dangerous situation they may be under a duty to act to prevent harm resulting.
R v Miller [1983]:
-Difficult one for HoL as AR and MR must exist at same moment.
-Had MR when realised there was a fire at which put he wasn’t doing anything.
-HoL held he had duty to stop fire as he had started it and that on leaving the room in breach of his duty to act hew committing the AR of the offence and at this time, he also had the necessary MR.
This reasoning was applied in Evans 2006, where sister created the dangerous situation by supplying her sister with drugs and so breached duty to act by not seeking help.
And in Bowler 2015. Mummified William’s with encouragement, had sex, then left him and checked he was breathing half an hour then again an hour later and he was lifeless, didn’t call ambulance for 3 hours. He created situation regardless the William’s wanted it and so was under a duty to act.

Question 17

Omissions - when is D under a duty to act? Novel situations

Answer 17

> Not necessarily a closed list.

Question 18

Omissions - What is required if there’s a duty to act?

Answer 18

> D must do what is reasonable (decided by jury).
One issue that isn’t yet resolved is whether it is what is reasonable for the D or for an ordinary person.
Stone & Dobinson - CA ignored D’s disabilities, requiring D to act as an ordinary person.

Question 19

Omissions - when will the omission cause the result?

Answer 19

> Must be shown omission caused the harm.
Dalloway 1847 - if D was to be convicted it had to be shown that if he were driving properly (keeping proper grip on reins) he would have been able to avoid injuring child.
Still debate over whether needs evidence that the victim wouldn’t have suffered the harm or whether that the victim might not have suffered harm:
-In Marby 1882, D was convicted of manslaughter after failing to summon medical help which MIGHT have saved the victim.

Question 20

Distinguishing between acts and omissions

Answer 20

> Jeremy Horder: “although there are some clear cases of omission and some clear cases of act, there are many ambiguous cases in which the act-omission distinction shouldn’t be used as a cloak for avoid moral issues.”
Speck 1977: child innocently placed hand on a man’s genital area and he did nothing to move hand. Considered an act not omission but can’t help think that this was in order for the court to ensure a conviction?
Bland.

Question 21

Distinguishing between acts and omissions - Bland.

Answer 21

• Consultant in charge of Bland with the support of his parents, sought from court declaration permitting discontinuation of his life support.
• Lord Goff of Chieveley: “I must however stress… that the law draws a crucial distinction between cases in which a doctor decides not to provide, or to continue to provide, for his patient treatment or care which could or might prolong his life and those in which he decides, for example by administering a lethal drug, actively to bring his patient’s life to an end.”
• “I agree that the doctor’s conduct in discontinuing life support can properly be categorised as an omission.” This is differentiated from “an interloper who maliciously switches off a life support machine…actively intervening…such conduct cannot possibly be categorised as an omission.”
• Lord Mustill: “My Lords, I must recognise at once that this chain of reasoning makes an unpromising start by transferring the morally and intellectually dubious distinction between acts and omissions into a context where the ethical foundations of the law are already open to question. The opportunity for anomaly and excessively fine distinctions, often depending more on the way in which the problem happens to be stated than on any real distinguishing features, has been exposed by many commentators… All this being granted we are still forced to take the law as we find it and try and make it work…”

Question 22

Omissions - Situational Offences

Answer 22

> Analogous to offences involving omissions are cases where D is guilty for being in a particular situation or state of affairs.
Controversial case = Larsonneur.
Larsonneur 1933:
-D convicted of the offence of being found in UK while being “an alien to whom leave to land in the UK had been refused.”
-D was only in UK as had been forcibly returned by Irish police.
-Was it right to punish her when she hadn’t performed a voluntary act to put herself in a criminal situation?

Question 23

Omissions - liability for the acts of other people

Answer 23

1. Vicarious liability:
   - Under vicarious liability an employer, under certain circumstances, may be criminally responsible for the acts of an employee.
2. Doctrine of innocent agency:
   - If A causes B (who is insane or a child) to cause harm to another then A can be made criminally responsible for the consequences of B’s act.

Question 24

Causation

Answer 24

> Necessary to prove D’s act caused a particular consequence.
Kennedy [2007] UKHL 38, para. 15: courts have consistently stated that causation is simply a matter of common sense and not a question of philosophical analysis.
Stephen Shute: “The law tends to regard causation in terms of broad generalisations based on common sense principles rather than attempting to mimic the more obscure approach to causation often taken by the philosopher or the scientist.”
So, courts see as question of fact. But not always possible.
Wallace 2018, CA quoted Canadian judge, Judge Karakatsanis:
-“Any assessment of legal causations should maintain focus on whether the accused should be held legally responsible for the consequences of his actions, or whether holding the accused responsible for the death would amount to punishing a moral innocent.”
Factual vs. ‘but for’ causation:
-Should D be held responsible for this result? vs. Did D legally cause the result?

Question 25

‘But for’ causation - definition

Answer 25

> D’s act is a ‘but for’ cause of a result, if, but for for D’s act, the result wouldn’t have occurred.
SC in Hughes 2013:
-“The law has frequently to confront the distinction between ‘cause’ and the the sense of a sine qua non without which the consequence would not have occurred, and ‘cause’ in the sense of something which was a legally effective cause of that consequence. The former, which is often conveniently referred to as a ‘but for’ event, is not necessarily enough to be a legally effective cause…. In the case law there is a well recognised distinction between conduct which sets the stage for an occurrence and conduct which on a common sense view is regarded as instrumental in bringing about the occurrence.”
‘But for’ causation is useful in that it tells us who cannot be regarded as a cause of death.

Question 26

The key test for legal causation

Answer 26

> Used to be said that a legal cause is “an operating and substantial cause” however in Wallace 2018, CA said the legal test for causation was whether the “accused’s acts can fairly be said to have made a significant contribution to the victim’s death.”
Further, they said that “the cause need not be substantial to render a D guilty.”
Shift from “operating & substantial cause” to “significant cause”.
This means that jury can be persuaded that just because one person was the main (‘substantial’) cause of the death, another person’s act could still be a significant (even if secondary) cause of death.
Significant cause = relevant & operating cause.
Andrew Simester: an act’s effect can ‘peter out’ over time & with the influence of other factors so that it becomes too remote from the cause and so no longer is an ‘operating cause’ even if it is a ‘but for’ cause.

Question 27

Best way to argue that cause isn’t an operating cause

Answer 27

> ‘break in the chain of causation’ or that there was a novus actus interveniens.
Rafferty 2007:
-D & friends hit victim then D ran away whilst his friends drowned victim.
Actions of his friends = a novus actus interveniens so Rafferty not held to cause V’s death.
2 people’s actions cause offence = ‘concurrent causes’.

Question 28

Situations giving rise to a novus actus interveniens

Answer 28

1. Acts of 3rd parties breaking chain of causation
2. Omissions of 3rd parties breaking chain of causation
3. Acts of victim breaking the chain.
4. The ‘thin skull’ rule
5. A natural event/ acts of God
6. Intended results

Question 29

Novus actus interveniens - definition

Answer 29

> A free, voluntary and informed act of a 3rd party which renders the original act no longer a significant cause.
Kennedy and Wallace = 2 leading cases.

Question 30

Situations giving rise to a novus actus interveniens/breaking chain of causation - 3rd parties act - Kennedy

Answer 30

> R v Kennedy [2008] AC 269.
Simon Kennedy prepared a syringe of heroin for Marco Bosque who injected himself and died shortly after.
Does victim’s act of injecting himself break chain of causation between appellant’s act of supplying drugs & victim’s death?
Report on behalf of their Lordships:
-14. “The criminal law generally assumes the existence of freewill…. Informed adults of sound mind are treated as autonomous beings able to make their own decisions on how they will act… Thus, D is not treated as causing V to act in a certain way if V makes a voluntary and informed decision to act in that way rather than another.”
Also quoted Professor Glanville Williams.
-18. “If the conduct of the deceased was not criminal he was not a principal offender, and it of course follows that there is no meaningful legal sense in which the appellant can be said to have been a principal jointly with the deceased, or to have been acting in concert. The finding that the deceased freely and voluntarily administered the injection to himself, knowing what it was, is fatal to any contention that the appellant caused the heroin to be administered to the deceased or taken by him.”

Question 31

Situations giving rise to a novus actus interveniens/breaking chain of causation - 3rd parties act - Professor Glanville Williams section quoted in Kennedy.

Answer 31

“I may suggest reasons to you got doing something; I may urge you to do it, tell you it will pay you to do it, tell you it is your duty to do it. My efforts may perhaps make it very much more likely that you will do it. But they do not cause you to do it, in the sense in which one causes a kettle of water to boil by putting it on the stove. Your volitional act is regarded (within the doctrine of responsibility) as setting a new ‘chain of causation’ going, irrespective of what has happened before.”

Question 32

Situations giving rise to a novus actus interveniens/breaking chain of causation - 3rd parties act - Wallace

Answer 32

> R v Wallace [2018] EWCA Crim 690.
Wallace threw sulphuric acid onto her former partner, who suffered truly dreadful injuries leaving him in constant pains and as a result, he travelled to Belgium where voluntary euthanasia is permitted, and his life was ended by doctors.
Trial judge said no charge of murder and prosecution appealed against that ruling.
Sharpe LJ:
-60. “The intervening acts of Mr van Dongen and the doctors were not, on these facts random extraneous events, or acts unconnected with the fault element of the defendant’s conduct. They were very closely, indeed inextricably, bound up with it.”
-61. “Looked at it this way, Mr van Dongen’s death, his request to the doctors, and the act of euthanasia itself carried out in accordance with his wishes, were not discrete acts or events independent of the defendant’s conduct., nor were they voluntary, if by this is meant they were the product of the sort of free and unfettered volition presupposed by the novus actus rule.”
At retrial D was acquited of murder.

Question 33

Situations giving rise to a novus actus interveniens/breaking chain of causation - 3rd parties act - Kennedy & Wallace principle

Answer 33

If A does an act after which B does an act, then if B’s act is
1. a free voluntary, and informed act; and
2. it renders A’s act no longer a significant cause,
A will not have caused the result. B’s act will be a novus actus interveniens.

Question 34

Situations giving rise to a novus actus interveniens/breaking chain of causation - 3rd parties act - free, voluntary & informed act

Answer 34

> Wise v Dunning [1902] said to stretch meaning of ‘voluntary’ too far as court was willing to accept that the anti-Catholic preacher caused the spontaneous violence from the Catholics in the crowd as it was an ‘instinctive’ reaction.
Where a person is acting in a way which is justified, their action isn’t free, voluntary, or informed.
Someone acting in line with legal obligations doesn’t break chain of causation.
It may be that acts in accordance with a moral obligation won’t break chain of causation. Certainly sound medical practice, e.g. in Malcherek and Steel 1981, where doctor switched off life support machine in accordance with approved medical procedures was held not have caused the patient’s death.
Person unaware of circumstances then their action may not break chain of causation.
Sharpe LJ, Wallace: ‘product of the sort of free and unfettered volition.’

Question 35

Situations giving rise to a novus actus interveniens/breaking chain of causation - 3rd parties act - rendering D’s action as no longer significant

Answer 35

> One of very VERY few case where medical treatment did break chain of causation = R v Jordan (1956).
D stabbed victim and V taken to hospital where wound almost healed when doctor administered a drug to which V was allergic and died.
The drug killed V and D acquitted as medical treatment was ‘abnormal’, ‘palpably wrong’, or ‘grossly negligent’ and the wound had virtually healed at time of death.
Cheshire 1991 - treatment not as should have been but didn’t break chain of causation.
William Wilson - 2 key cases where chain of causation broken by medical treatment:
1. Palpably wrong.
2. Death caused in hospital by an act which isn’t connected to injuries inflicted by D, in which case don’t have to be ‘palpably wrong’ either.

Question 36

Situations giving rise to a novus actus interveniens/breaking chain of causation - 3rd parties act - medical treatment - Cheshire context

Answer 36

> R v Cheshire [1991] 1 WLR 844.
Shot victim in leg. Tracheotomy performed as V had breathing difficulties when in intensive care in hospital.
2 months after shooting, V died as windpipe narrowed where tracheotomy had been performed - rare, but not unknown complication of such a procedure.
D convicted of murder, but appealed on basis trial judge wrongly directed jury saying only if medical treatment could be described as reckless could the appellant be said to not have caused V’s death.

Question 37

Situations giving rise to a novus actus interveniens/breaking chain of causation - 3rd parties act - medical treatment - Cheshire judgement

Answer 37

> Lord Justice Beldam:

• “Treatment which falls short of the standard expected of the competent medical practitioner is unfortunately only too frequent in human experience for it to be considered abnormal in the sense of extraordinary.”
• “Acts of omissions of the a doctor treating the victim for injuries he has received at the hands of a D may conceivably be so extraordinary as to be capable of being regarded as acts independent of the conduct of the D but it is most unlikely that they will be. “
• Cites cases of Jordan, Smith and Malcherek
• “…when a victim of a criminal attack is treated for wounds or injuries by doctors or other medical staff attempting to repair the harm done, it will only be in the most extraordinary and unusual case case that such treatment can be said to be so independent of the acts of the D that it could be regarded in law as the cause of the victim’s death to the exclusion of the D’s acts.”
• “Even though negligence in treatment of the victim was the immediate cause of his death, the jury should not regard it as excluding the responsibility of the D unless the negligent treatment was so independent of his acts, and in itself so potent in causing death, that they regard the contribution made by his acts as insignificant.”

Question 38

Situations giving rise to a novus actus interveniens/breaking chain of causation - 3rd parties act - medical treatment - Smith

Answer 38

> R v Smith [1959] 2 Q.B. 35.
Lord Parker C.J:
-“If at the time of death the original wound is still an operating cause and a substantial cause, then the death can properly be said to be the result of the wound… only if the second cause is so overwhelming as to make the original wound merely part of the history can it be said that the death does not flow from the wound.”

Question 39

Situations giving rise to a novus actus interveniens/breaking chain of causation - 3rd parties act - medical treatment - Malcherek quote

Answer 39

> Lord Lane C.J:
-“There may be occasion, although they will be rare, when the original injury has ceased to operate as a cause at all, but in the ordinary case if the treatment is given bona fide by competent and careful medical practitioners, then evidence will not be admissible to show that the treatment would not have been administered in the same way by other medical practitioners. In other words, the fact the victim has died, despite or because of medical treatment for the initial injury given by careful and skilled medical practitioners, will not exonerate the original assailant from responsibility for the death.”

Question 40

Situations giving rise to a novus actus interveniens/breaking chain of causation - omissions of 3rd parties breaking the chain of causation

Answer 40

> No court has said explicitly, but omission can’t break chain of causation as an omissions can’t render D’s act as no longer an operating and substantial cause.

Question 41

Situations giving rise to a novus actus interveniens/breaking chain of causation -acts of the victim breaking the chain - 2 leading cases

Answer 41

1. Roberts

2. Blaue

Question 42

Situations giving rise to a novus actus interveniens/breaking chain of causation -acts of the victim breaking the chain - Roberts - facts

Answer 42

> R v Roberts (1971) 56 Cr App R 95.
V jumped out of car due to Roberts making indecent suggestions to her and so Roberts was charged with actual bodily harm.
Roberts appealed on the basis that he thought the judge had misdirected jury in saying that if they felt sure V was induced to jump out of car they could convict D.

Question 43

Situations giving rise to a novus actus interveniens/breaking chain of causation -acts of the victim breaking the chain - Roberts - judgement

Answer 43

> Lord Justice Stephenson:

• “The test is: Was it the natural result of what the alleged assailant said and did, in the sense that it was something that could reasonably have been foreseen as the consequence of what he was saying or doing?”
• “If of course the V does something so ‘daft’… that no reasonable man could be expected to foresee it…it is really occasioned by a voluntary act on the part of the V which could not reasonable be foreseen and which breaks the chain of causation between the assault and the harm or injury.”

> Williams and Davis approved of Roberts but made slight change because V may react irrationally if put into an emergency situation so reaction wasn’t reasonably foreseeable:

• “whether the deceased’s reaction in jumping from the moving car was within the range of responses which might be expected from a V placed in the situation in which he was.”
• “The jury should bear in mind any particular characteristic of the victim and the fact that in the agony of the moment he may act without thought and deliberation.”

> Marjoram - action reasonably foreseeable to a an ordinary person and not whether it was reasonably foreseeable to a person of D’s age and characteristics.

Question 44

Situations giving rise to a novus actus interveniens/breaking chain of causation -acts of the victim breaking the chain - Blaue - facts

Answer 44

> R v Blaue [1975] 3 All ER 446 (CA).
Blaue stabbed V, piercing her lung and in order to survive V needed a blood transfusion, which as a Jehovah’s witness she refused.
Appellant convicted of manslaughter but appealed on the basis that chain of causation between stabbing and death was broken by V refusing blood transfusion.

Question 45

Situations giving rise to a novus actus interveniens/breaking chain of causation -acts of the victim breaking the chain - Blaue - judgement

Answer 45

> Lord Justice Lawton:

• Appellant argued that “jury should have been directed that if they thought the girl’s decision not to have a blood transfusion was an unreasonable one, the chain of causation would have been broken.
• At once the question arises - reasonable by whose standards? Those of Jehovah’s Witnesses? Humanists? Roman Catholics?
• It has long been the policy of the law that those who use violence on other people must take their victims as they find them. This in our judgment is the whole man, not just the physical man. It does not lie in the mouth of the assailant to say that his victim’s religious beliefs which inhibited him from accepting certain kinds of treatment were unreasonable.
• The question for decision is what caused her death. The answer is the stab wound. The fact the victim refused to stop this end coming about did not break the causal connection between the act and death.

Question 46

Situations giving rise to a novus actus interveniens/breaking chain of causation -acts of the victim breaking the chain - Roberts & Blaue

Answer 46

> If Roberts test applied in Blaue then it may have been decided that it wasn’t reasonably foreseeable that the victim would be a JW and refuse blood transfusion.
Seem to conflict but there have been attempts to reconcile them:
1. In Blaue, the V’s act was an omission unlike in Roberts where V acted by jumping. So this suggests Blaue’s rule is that a V’s omission doesn’t break the chain of causation, whereas Robert’s rule explains V’s act might if it was unforeseable. This wasn’t made explicit by courts though.
2. May argue that there isn’t a conflict between 2 approaches as modification of the Roberts test in Williams and Davis required jury to consider whether response was reasonably foreseeable, given the victim’s characteristics. But then in Blaue if they were using this test they should have asked whether V acted as a reasonable JW but they didn’t % it could be argued that this test will always be satisfied.
3. Could argue that Blaue was a special case about religion and applying the reasonableness and foreseeability test would require jury to consider whether the exercise of a religious belief was unreasonable.

Question 47

Situations giving rise to a novus actus interveniens/breaking chain of causation -acts of the victim breaking the chain - Dear

Answer 47

> Dear [1996] Crim LR 595 - D stabbed V and V reopened wounds himself and died from blood loss from wounds.
Held that even if V had deliberately reopened wounds, D’s actions could still be found to have been an operating & substantial cause of V’s death.

Question 48

Situations giving rise to a novus actus interveniens/breaking chain of causation -acts of the victim breaking the chain - Dhaliwal

Answer 48

> Dhaliwal [2006] EWCA Crim 1139.
CA appeared willing to accept that a husband who had been continually abusive to his wife had caused her to commit suicide.

Question 49

The ‘thin skull’ rule

Answer 49

> D must take V as they find them.
Is it restricted to cases where V doesn’t do anything to make their condition worse?
What if V acts in a way which causes further harm?

Question 50

Situations giving rise to a novus actus interveniens/breaking chain of causation - A natural event (‘Acts of God’)

Answer 50

> Natural events don’t usually break chain of causation.
Freak of nature may.
Gowans [2003] EWCA Crim 3935:
-D attacked V, putting him in coma.
-V then caught infection & died.
-V was in especially vulnerable state to any infections as he was in the coma so D’s act was held to be an operating & substantial cause of death.
-Infection not seen as ‘an Act of God’ which broke chain of causation.

Question 51

Situations giving rise to a novus actus interveniens/breaking chain of causation - Intended Results.

Answer 51

> Some argue that if D acts intending to produce a particular result & that result occurs then D will automatically be found to have caused that result.
This would only be true if the ‘but for’ cause was satisfied.
Little in case law to support this though.
In Michael (1849) 9 C&P 356:
-D wanted her baby dead so gave nurse bottle of poison for baby saying it was medicine. 5-yr-old child removed poison & gave to baby.
-Even though turn of events unexpected, the end result was what D wanted so she could be said to have caused it.
-However, the case can also be explained on basis that the action of the nurse & child weren’t free, voluntary, and informed actions and so couldn’t be novus actus interveniens.

Question 52

The need for a voluntary act - why might the law have a voluntary act requirement?

Answer 52

> One view is that criminal law should not punish evil thoughts alone:
-We do not punish people for being bad, but doing bad things. (M. Moore (1993: 51)).
-Acquiring proof would be too difficult.
-Requiring act lessens the chances of wrongful conviction.
-Limits gov. power as would be too easily for corrupt gov. or officials to punish those they perceive to be a threat to their power.
Must be voluntary otherwise it would be unjust.

Question 53

The need for a voluntary act - what is the ‘voluntary act requirement’?

Answer 53

> Offence must involve proof, but Donald Husak goes further than this:
-Criminal liability must be imposed ‘FOR an act’ (1995a).

Question 54

The need for a voluntary act - what is the ‘voluntary act requirement’? - The traditional view

Answer 54

> Actions = ‘willed bodily movements.’ (M. Moore 1993: 28).

Question 55

The need for a voluntary act - what is the ‘voluntary act requirement’? - The traditional view - arguments against

Answer 55

1. Defining an act as a willed voluntary movement can produce an artificiality of the would as by describing an action simply in terms of what movement was done without considering the context or consequences of that movement gives a misleading/not very useful description of what was done.
   E.g. we say eating, walking, or talking, not specifying the separate bodily movements making up those acts.
2. Traditional view doesn’t account for ‘automatic pilot’ engaged when people act sometimes where it would be artificial to talk about such acts being willed.
   Although some say there’s an ‘unconscious will’ (Fletcher (1978: 4344-9) is willing to include within definition of a voluntary act Ds who have a conscious/subconscious reason for acting as they did.
3. Traditional view too narrow? Doesn’t inc. some omissions which would be quite properly described as ‘acts’.

Question 56

The need for a voluntary act - what is the ‘voluntary act requirement’? - The traditional view - alternatives

Answer 56

> The ‘control principle’: that it would be unjust to impose criminal liability for a state of affairs over which D had no control. Makes it easier to punish omissions than ‘voluntary act requirement does.’
Susan Dimock (2012) prefers the ‘agency principle’: ‘that liability be imposed for conduct that is expressive of the defendant’s agency.’ Someone may have no control over their behaviour but have chosen to put themselves in that position (e.g. intoxication) so there behaviour may express their agency even if uncontrolled.

Question 57

The need for a voluntary act - what is the ‘voluntary act requirement’? - The control principle - Andrew Simester

Answer 57

> A.P Simester, ‘On the So-called Requirement for Voluntary Action’ (1998) 1 Buffalo Criminal Law Review 403 at 414-18.

• “The indispensable minimum, then, is to establish that D is responsible for the explicit or implicit behaviour element of the actus reus, regardless of whether the behaviour is named an act or omission, and of whether D was an agent in respect of that behaviour. This requirement is met when D’s behaviour is voluntary.”
• “Involuntariness is not merely a denial of intention, or other forms of mens rea, or even a denial of fault in general… It is a claim that the movements of” ones “body which” the offence “do not belong to” them “as a reasoning person.”
• “Not all movements of one’s body can be identified with the person whose body it is that moves.”
• “These are not actions that a person is answerable for doing; they are things that happen to him, over which he has no control, and for which he is not responsible.”
• “Her behaviour is part of her body’s history, but is not traceable to her as a reasoning person.”

Question 58

The need for a voluntary act - what is the ‘voluntary act requirement’? - The control principle - HLA Hart

Answer 58

> H.L.A Hart:
“What is missing in these cases appears to most people as a vital link between mind and body; and both the ordinary man and the lawyer might well insist on this by saying that in these cases there is not “really” a human action at all and certainly nothing for which anyone should be made criminally responsible however “strict” legal responsibility may be.”