Topic 2 - Actus Reus Flashcards
The elements of an offence are found in the definition of the offence, and that is contained in a statute or in cases (common law).
These elements are known as the definitional elements of the offence.
The definitional elements are broken down, to manage them more easily, into actus reus and mens rea.
The actus reus consists of prohibited conduct (acts or omissions), prohibited circumstances, and/or prohibited consequences (results).
A person can be criminally liable for failing to act (ie an omission), but only where there is a duty to act. Imposing criminal liability for an omission can be controversial.
Causation is a key part of consequence/result crimes. The prosecution must prove that the result was caused by the defendant. In order to do this, the chain of causation must first be established, and then consideration must be given to any intervention which might break the chain.
Identifying the definitional elements of an offence
We saw in chapter 1 that criminal liability is found when the prosecution can prove the defendant satisfies the elements of the crime, and has no defence. The elements of each offence (and of each defence) are found in its definition, and the definition is found either at common law (cases only) or under statute (an Act of Parliament, supplemented by case law which interprets the statutory provision).
Note: in this chapter and the next two, we are concerned with offences only and not defences.
The first step is to take the definition of a crime and see if you can break it down into its components. As examples, we are going to look quickly at two offences which are commonly taught on a criminal law module. Even if you are already familiar with the two crimes, it is still worth reading what follows to see how the elements have been identified.
How to identify the definitional elements of gross negligence manslaughter
Our first crime is the common law offence of manslaughter by gross negligence. In the leading case, Adomako [1994], Lord Mackay, the then Lord Chancellor, delivered the leading speech of a unanimous House of Lords. He said ‘the ordinary principles of the law of negligence apply to ascertain whether or not the defendant has been in breach of a duty of care towards the victim who has died. If such breach of duty is established the next question is whether that breach of duty caused the death of the victim. If so, the jury must go on to consider whether that breach of duty should be characterized as gross negligence and therefore as a crime.’
We can therefore conclude that the elements of the offence are:
a duty of care exists between D and V
which is breached
which caused V to die
and the jury finds the breach serious enough to be a crime.
How to identify the definitional elements of criminal damage
An example of a statutory offence is criminal damage. This is governed by s 1 Criminal Damage Act 1971, which provides:
A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence.
The definitional elements of the crime could therefore be listed as:
without lawful excuse
D destroys or damages
any property
belonging to another
intending to or being reckless as to whether any such property would be destroyed or damaged.
To make offences easier to handle, lawyers split the crime into two parts which we call the actus reus and the mens rea.
What does actus reus mean?
Have another look at the offence of criminal damage above. It has been broken into five elements. Criminal damage consists of conduct (destroying or damaging), in particular circumstances (property belonging to another) with a particular state of mind (intending or being reckless to the elements listed earlier). Most criminal offences have similar constituent elements. We classify the elements as either actus reus or mens rea, from the Latin phrase actus non facit reum nisi mens sit rea. The phrase translates into English as ‘the act is not guilty unless the mind is guilty’. Hence the actus (act) must be reum (guilty) and the mens (mind) must also be rea (guilty). We examine mens rea in chapter 3. We tackle actus reus here.
The strict translation of actus reus to ‘guilty act’ is misleading. Actus reus does not necessarily denote ‘guilt’ in terms of blameworthiness or moral wrongness, but refers to the prohibited conduct, circumstance, or result (or a combination of them). Secondly, the actus reus does not have to be an act; the conduct could be satisfied by an omission (see ‘Omissions’, p 16). Thirdly, actus reus includes far more than conduct. The term is used to cover any circumstances mentioned in the definition of the offence and any consequence (or result) too.
What has the law commission suggested about actus reus and mens rea?
If you are answering an essay question on actus reus in the exam, you might find it useful to know that the Law Commission (among others) has called for the term actus reus to be replaced with ‘external elements’ and mens rea with ‘fault elements’ to reflect better their true meanings. Lord Diplock in Miller [1983] said that it would be ‘conducive to clarity … if we were to avoid bad Latin and instead to think and speak … about the conduct of the accused and his state of mind at the time of that conduct, instead of speaking of actus reus and mens rea’.
By far the easiest way to find the actus reus is to take away the mens rea (chapter 3) and what is left must be actus reus, even if that consists of the state of mind of the victim (V) (eg V’s consent, or rather the lack of it, in the offence of rape). So, returning to criminal damage for a moment, the actus reus of criminal damage is therefore:
destroying or damaging
any property
belonging to another.
The element ‘without lawful excuse’ is probably another element of the actus reus, but might be a defence. Do not worry about this lack of certainty. Judges have struggled for decades to decide whether what we call defences are in fact defences (ie they exist separately from the actus reus and mens rea) or are part of the actus reus or mens rea. It is not your job to make this decision for them! You will be relieved to know that this issue does not have to concern us again until chapter 14.
Acts and omissions
Some crimes can be committed either by doing something (ie a positive act) or by not doing something (ie an omission). An example of a crime that can be committed by either act or omission is murder. If D intentionally stabs V and V dies, that is murder by an act. On the other hand, if D is under a legal responsibility to care for V, and D, wanting to kill V, fails to feed her and V dies, that is murder by omission (see Gibbins and Proctor (1918) in ‘Familial relationships’ on p 17).
Some crimes, however, can only be committed by an act because that is what the definition of the crime says. For example, the offence of robbery (see ‘Robbery’ in chapter 13) could not be committed without D actually doing something (such as using force, or threatening to use force, etc in order to steal). On the other hand, some crimes can be committed only by omission. For example, s 36 Road Traffic Act 1988 provides that a person who drives a vehicle and who fails to comply with a road sign (such as a ‘stop’ sign) is guilty of an offence. It is the failure to comply which gives rise to criminal liability.
Voluntariness and automatism
Whether the actus reus is committed by an act or by omission, it must be committed voluntarily. Conduct which is involuntary in law is conduct which is not subject to D’s conscious will. This may be because of an uncontrollable impulse, such as if D crashes a car while having a heart attack, or it may be as a result of an unanticipated and serious side effect of taking prescription medication. Where D’s conduct amounts to the actus reus of a crime, but is involuntary, criminal lawyers tend to say they have the defence of automatism. Actually, it would be more accurate to say that it is a denial of actus reus.
The common law traditionally prohibits acts and does not criminalize omissions. Therefore no liability will usually arise in relation to a failure to act. There are some good reasons for this approach, including:
imposing liability for an offence of failing to act would be hard if not impossible to enforce,
proving causation might be impossible,
convicting for omissions would conflict with the principle of autonomy; that is, while we are individually responsible for our conduct, we should not be responsible for the conduct of others. At any given time there are thousands of people we could be helping (eg by donating money to charity, donating an organ, visiting someone in hospital) and we cannot reasonably be responsible for everything we are not doing.
The law does prohibit certain omissions (as the exception to the general rule) where four conditions are satisfied:
1.
the offence in question is capable of being committed by omission (examples are given earlier),
2.
D is under a legal duty to act, either at common law or under statute,
3.
D has breached that duty, and
4.
D’s breach of duty caused the harm.
