Criminal Law
Actus Reus
 The term actus literally means act in English. Actus reus
includes acts and omission, consequences and surrounding
circumstances (state of affairs)
 In essence, the actus reus includes all the elements of the
definition of a crime except the accused’s mental element

The actus reus generally requires proof that the defendant voluntarily
committed an act i.e.; that the defendant committed the act through
his own free will as opposed to it being committed involuntarily.

For an act to be involuntary, the person doing it must be deprived of
free choice as to what to do and divested of the ability to control
what he did at the particular point in time. For example a person
who acts in an epileptic fit, or in his sleep, or when attacked by a
swarm of bees or in a state of automatism. Hill v Baxter (1958) 1 QB
277 @186

There are circumstances when an act or omission is not an actus reus as
shown in the following TWO cases
1. Hill v Baxter (1958)

Here A, the accused was stung by bees while driving as a result of which he
lost control of the vehicle, which hit and killed D. There was no actus reus on
A’s part, resulting in D’s death
2. R v Burgess (1991)

Here A who suffered from apoplexy while under an attack of the illness, hit B.
A’s action was held to be involuntary.
Omission
As a general rule of law, there is no obligation on the part of any person to act to
prevent the occurrence of harm or wrongdoing to another. Citizens are generally
not required to be their brother’s keeper.
For example:
If a pedestrian falls into the road , is run over by a speeding car and
consequently dies, and a bystander could have prevented this by reaching out
and pulling the pedestrian from the road but chooses not to, notwithstanding
how inhumane, or morally reprehensible this may be considered, no criminal
proceedings can generally ensue from the bystander’s omission to act.
However an omission may give rise to criminal responsibility in
certain circumstances; these circumstances largely being:
(i) Where statute either expressly or impliedly imposes liability for
a failure to Act and ;
(ii) where a person is under duty to act arising at common law or
under statute by virtue of the following:
1. the relationship between persons, certain persons are liable to
act;
2. contractual relations;
3. voluntarily assuming responsibility for another person’s care;
4. creating a dangerous situation.
Statutes
Many statutes also make omissions criminal; failure
to provide specimen of breath for a breath test,
failure to report an accident within a prescribed
period etc
1.
By virtue of relationship between persons
As noted in the Text, Criminal Law by Peter Seago
(3rd Edition), certain persons are liable to act
because of their status. For example: sea captains
are under a duty to take reasonable steps to protect
the lives of their passengers and crew. Parents are
under an obligation to look after the welfare of their
children and guardians their wards.
R v Gibbins and Proctor (1918) 13 CAR 134
The defendant and his common law wife failed to feed the man's 7
year-old child, Nelly, and she died from starvation. The woman
hated Nelly, and was clearly the person behind the omission to
feed.
Held: Where there is the duty to act, failure to do so can lead to
liability, even for murder, if the necessary mens rea is present. The
defendant, being the father of the child, had the duty to act for
the welfare of the child. His common law wife was held to be
liable because, while the child was not hers, she was living with
the defendant and had undertook the duty to care for the child.
The courts regarded the parent's duty towards a young child as so
self-evident as not to require analysis or authority. Both parties
were found guilty of murder.
By virtue of contractual relationships
It is possible to bring oneself under a duty to act by
virtue of contractual obligations. For example: If a
person is employed by the National Works Agency to
ensure that all roads in the New Kingston area are in
good and proper order and by failing to properly
perform his duties a road caves in and a person
driving on that road dies, that person may be liable
for the death of the driver, for even though his
contract exists with the National Works Agency, he is
under a duty of care to all users of the road who are
not necessarily signatories to the contract.
One of the leading cases on this point is the case of R
v Pittwood (1902) 19 TLR 37
In that case the accused, who was under a contractual
obligation to look after a railway level crossing,
negligently left his post with the gates in such a
position as to suggest to road users that no trains
were coming. As a result a man was killed when his
cart, which was crossing the railway lines, was struck
by a train.
The accused was charged with causing the death of
the deceased by gross negligence.
He argued that he owed no duty of care to
the users of the crossing, but rather that his
contract was with railway company and as
such his contractual obligations lay solely
with the railway company.
The Court held however that this contractual
undertaking was sufficient to place him
under a duty to the road users and as such
the prosecution was able to establish the
actus reus.
By virtue of Voluntary Undertakings
A person may undertake to be his brother’s keeper.
Where a person voluntarily assumes responsibility for
another’s care and then simply fails to fulfill that
undertaking, he or she may become criminally liable for any
harm which may be occasioned.
There is no need to prove a legal obligation to undertake the
duty or that is obliged by contract, it is sufficient if the
defendant has voluntarily and gratuitously undertaken the
care of another.
R v Instan (1893) 1 QB 450
The defendant lived with her aged and helpless aunt
but caused her death by failing to give her food. She
was found guilty of manslaughter. The court held that
there was a duty on the part of the defendant to
provide food by virtue of her voluntary undertaking to
look after her aunt.
Stone and Dobson (1977) 2 All ER 341
S and D allowed Stone's ill and unstable sister, Fanny,
to live in their house. Fanny was suffering from
anorexia and her condition deteriorated, until she
became bed-ridden. She needed medical help, but
none was summoned and she eventually died in
squalor, covered in bed sores and filth.
Held: Because S and D had taken Fanny into their
home, they had assumed a duty of care for her and
had been grossly negligent in the performance of that
duty. The fact that Fanny was Stone's sister was
merely incidental to this. Both were found guilty of
manslaughter by gross negligence
5. By virtue of creating a dangerous situation
Where a person has created a dangerous situation, he
is deemed to be under a duty to take reasonable steps
to avert that danger.
If for example a person saw two persons trapped in a
burning car, he would be under no duty to try to assist
them, if however he was the person who was smoking
next to the car as it was being filled with gasoline and
as a result it exploded into flames, he may be thought
to be under a duty to act.
One of the leading cases on this point is the case of R v Miller (1982)
2 All ER 386
In that case the accused had fallen to sleep while smoking a
cigarette in a house where he was squatting. He awoke to find that
his mattress was on fire, but instead of taking steps to put the fire
out, he simply moved to another room leaving the fire to spread.
The House of Lords decided that common sense dictated that he
should bear responsibility for the result of his failure to avert the
danger which he had caused.
In that case, Lord Diplock stated:
"I see no rational ground for excluding from conduct actions capable
of giving rise to criminal liability, conduct which consists of failing
to take measures that lie within one's power to counteract a danger
that one has oneself created…”.
Once the prosecution has proved that the accused
failed to act in a situation where the law imposes a
duty to act, (i.e. they have established the actus reus),
then the general principles of criminal liability
operates as in any other case and in all instances,
unless it is a strict liability case, the prosecution would
then have to prove that the necessary mental element
accompanied the actus reus so as to make the omission
of the accused a crime.
STATE OF AFFAIRS
A crime may be committed although there is no “act” in
the normal sense instead there may be a specified state
of affairs which is deemed sufficient.
A "state of affairs" refers to the circumstances at a
particular place and time which are to be distinguished
from an act which is doing something, such as stabbing
somebody or taking property and an omission which is
not doing something, such as failing to take care of
your child.
R v Larsonneur (1933) 24 Cr App Rep 74
In this case, the defendant was convicted under the
Aliens Order Act 1920 of “being an alien to whom
leave to land in the UK has been refused”. The
defendant was found in the UK after she had been
brought from Ireland to the UK against her will in the
custody of the police. Note, notwithstanding the fact
that the accused was brought to the UK against her
will, she was still convicted of the crime as she was
found in the UK after she was strictly prohibited from
being there.
The state of affairs in this instance was constituted
when Ms. Larsonneur was “found in the UK”.
Winzar v Chief Constable of Kent (1983) Times 28th
March
In this case, the police were called to remove the
accused from the hospital corridor. They found that
he was drunk and removed him to a police car which
was parked on the highway. The accused was found
guilty of being found drunk on a highway and
convicted even though strictly speaking he was
“found” by the police in the hospital corridor.
The state of affairs was constituted in this instance
when the accused was “found drunk on a highway.”
Note that these state of Affairs offences are usually strict
liability offences with no need for one to determine how the
state of affairs came to be. In these instances, Parliament may
be taken to impose criminal liability where the voluntary
conduct of the accused is not required.
It is submitted that while they do not seem to be the most fair
cases, they show very clearly the concept of strict liability
offences; namely once a person is found to have contravened a
particular statute even if such contravention may not have been
as a result of the act of the person (For example: Ireland was
taken to the UK by police and police were the persons who took
Wizmar to the car on the highway) he /she may still be deemed
to be found guilty by virtue of falling under the particular
prohibition on a strict application of the subject statute.