Objective Notes: W201 – Individual & State
UNIT 18 – MANUAL THREE
GUILTY CONDUCT
1
Basic Actus Reus (A R) principles
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Without A R there is no crime –
o Principally, this is positive action – doing something;
o But failure to act can equate to actus reus.
Additionally AR may require there to be –
o Certain circumstances surrounding the action;
o Certain consequences of def’s conduct
Result offences – where in addition to def’s conduct there are certain
circumstances & consequences, this is a result offence;
Conduct offences –
o Where no consequence has to follow from the conduct, this is a
conduct crime;
o Def is guilty if he acts in certain way/ situation – there’s no
requirement to demonstrate any consequence of the conduct;
For A R to be established all elements expressed in the offence definition
must be present;
A R can be established by a state of affairs – e.g. being drunk in public place;
Def’s conduct must be voluntary;
Where any required element is missing, A R is not established & a
conviction can’t follow.
Identifying A R
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Crim offences defined by stat or common law so A R is found in stat interp
& relevant judgments;
A R = elements of definition ex state of mind/ defences
Examples –
o Crim damage (s,1(1) CDA 1971):
 Damaging/ destroying another’s property ( A R);
 Without lawful excuse (Defence);
 With intent or recklessness (Mens rea).
o Murder (common law):
 Killing human being (A R);
 Unlawfully (Defence);
 Malice aforethought (mens rea).
A R may embrace more than one element e.g. –
o Crim damage = damage/ destruction AND property belonging to
another (thus, damaging own property is not an offence);
o Murder = killing AND human being (thus killing foetus/ animal or
attempting to ‘kill’ dead person is not murder).
Liability through failing to act
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Certain offences – e.g. burglary, rape – can’t be committed by omission –
there can be no rape where there is no active sexual participation;
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Objective Notes: W201 – Individual & State
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Some stat offences impose liab failing to act but general rule is that there is
no liab for failing to act subject to certain exceptions;
Where a special relationship exists – family ties or def has assumed a duty –
failing to act can incur crim liab –
o Particularly duty of parent to child , recognised at common law & by
s.1(2)(a) of Children & Young Persons Act 1933;
o In R v Gibbons & Proctor [1918], P was not child’s mother but held to
have assumed duty due to voluntary co-habitation with G & receipt of
housekeeping money from him – her failure to feed child was A R of
murder;
o Co-habitation may indicate assumed duty generally - specific liab will
depend on the fact & in R v Stone & Dobinson [1977] duty was found
based on –
 S’s blood relationship with his sister F;
 F lived with the defs;
 Limited care they provided established an assumed a duty of
care.
o By Stone there’s no general liab towards either relatives or residents
of one’s home but duty can be assumed from def’s conduct & if
inadequate assistance is provided, crim liab may be incurred;
o Parent has a special relationship with child which imposes a duty to
care & other relationships may exist where it is apparent that duty
assumed:
 Acceptance of payment/ accommodation in return for
providing care;
 Inviting those needing care to live permanently as part of
one’s family/ household.
‘Victim’s’ wishes may abrogate duty & in R v Smith [1979] it was held
whether def was released from duty by victim’s instructions depended on
her state of mind –
o Where she was capable of being rational, reasonable to respect this
wish & avoid crim liab;
o But if victim too ill to make such decision, more appropriate to
override wishes;
o Thus, where victim remains capable of determining fate, def is
released from duty to care.
Where employment contracts set out obligations to act, failure can result in
crim liab & in R v Pittwood [1902] contractual breach rendered def crim
liab for consequences of his failure;
Where stats impose duties to act in certain ways, omissions result in crim
liab, irrespective of consequences;
Where def creates dangerous situation, he is under duty to take steps to
rectify this & can incur crim liab if he fails so to act & in R v Miller [1983]
it was held o Def created dangerous situation which imposed duty to take
reasonable steps to prevent further damage;
o His failure so to do justified crim liab & conviction.
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Objective Notes: W201 – Individual & State
4
Causation
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With ‘result’ offences act/ omission must cause a result & there must be a
demonstrable link between conduct & prohibited result;
In most cases this is clear on facts but circumstances are not always so clear
cut & courts have developed 2 causation tests, both of which have to be
present to establish A R –
o Factual causation: Where, but for def’s act, victim would not have
died, factual causation (FC) exists;
o Legal causation:
 Must also prove that def was legal cause of death;
 Matter of fact for jury to decide but C of A guidelines assist in
situations where –
 Another person’s act intervenes between initial act of
def & final result; or
 An event occurs between these.
o Contribution to result by acts of another - R v Pagett [1983] C of A
held:
 Def’s conduct need not be sole or main cause of death;
 Sufficient for act/ omission to contribute significantly to the
result;
 Significant = > minimal.
o Intervening events Defs may argue that the event absolves them of liab- novus
actus interveniens –
 Link is broken by the incidence of the event;
 Chain of causation is broken.
 In determining whether crim liab for result avoided, courts
consider whether:
 Despite the event, the def’s acts were an operating/
substantial cause of the result (R v Malcherek & Steel
[1981]);
 Event was foreseen by def or foreseeable by reasonable
person as likely normally to occur;
 In R v Pagett it was held:
 Chain may be broken by 3rd party’s ‘free, deliberate &
informed intervention’;
 Where this not so – intervention involuntary because
the 3rd party had no choice but to intervene – def’s
conduct/ result link is not broken.
 Where death arises from escape attempts by victims – such
action could be considered to be an involuntary act & in R v
Williams & Davies [1992] it was held:
 Juries should consider whether –
o Harm (but not necessarily serious) was
reasonably foreseeable from def’s threats;
o Actual reaction was reasonably within range of
anticipatable responses in the circumstances;
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Objective Notes: W201 – Individual & State
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Rule = where victim’s action is involuntary (he has no
option but to try to escape), def’s conduct brought
about that result & he is crim liable for consequence.
 In R v Watson [1989] held that where death results from fright
following threats etc test is that applicable to physical injury –
if result foreseen or foreseeable, def could be held to be legal
cause.
o Affect of medical negligence –
 Def may argue did not foresee medical mis-treatment &/ or
that that is not foreseeable – treatment intervening event which
broke the chain of causation & in R v Jordan [1956] held:
 Where death resulted from normal medical treatment
(e.g. post-surgery complications),def remained the
cause of the result;
 But where treatment found to be not normal, such a
finding could not be the case.
 Note that Jordan is considered to be exceptional (original
wound had healed) & in R v Smith [1959] guidelines held to
be:
 Where original wound still operated as substantial,
operating cause (irrespective of there also being some
other cause), then the death is the result of the injury;
 Only if it is established that wound now simply setting
or history in which another & overwhelming cause
operates, can it be held that death does not result from
the wound.
 The leading case, R v Cheshire [1991], held:
 Negligence may be immediate cause of death, but this
did not mean that def’s contribution by original
conduct did not contribute significantly to result;
 Only in most exceptional circumstances poor/ negligent
treatment would avoid liability;
 Treatment would have to be so independent of def’s
acts & so potent in itself in causing death before it
could render def’s contribution insignificant.
o Affect of pre-existing conditions –In R v McKechnie [1992] held –
where def’s attack directly prevented treatment & medical decision
was reasonable & not so independent of the def’s conduct to be
considered cause of death, chain had not been broken & def was
liable;
o Affect of weak or intractable victims –
 General rule = defs take victims as they find them & this
extends to refusals by victims to accept medical help on
religious/ other grounds;
 If victim is frail or has firm beliefs leading to refusal of medical
treatment, that is def’s bad luck – it does not remove crim liab
& in R v Blaue [1975] held:
 Those using violence against others must take victims
as they find them;
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Objective Notes: W201 – Individual & State
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This encompasses the ‘whole’ of that person & not just
the physical;
Sole question is what caused death & answer is def’s
act;
Victim’s refusal to stop result did not break chain.
Example of causation issues
Facts –
 D fell asleep smoking & awoke to find chair smouldering but did nothing to
stop it;
 H was asleep & awoke to find house ablaze, called fire brigade & was
hospitalised due to severe burns & breathing problems;
 Dr S was busy, failed to diagnosis full damage & left H alone promising to
come back;
 When he did a few hours later H had died.
Conclusions –
 D took no steps to inflict harm but failed to put out fire & this led to H’s
injuries;
 D may seek to argue that there is no liab for failure to act but, as established
in R v Miller where def creates a dangerous situation, he has a duty to rectify
this;
 Extent of duty depends on facts (e.g. severity of fire) but must include
calling the fire brigade &, possibly, trying to wake H;
 If H had died at flat or before reaching hospital, D’s failure to act when under
duty established A R of murder;
 What has to be considered is implication & affect of intervening act –
whether chain of causation broken by bad medical treatment;
 ‘But for’ D’s omission H wouldn’t have been injured or at hospital where
treatment was negligent – FC is proved;
 As to legal causation, injuries are an operating & substantial cause of death –
A R is established;
 As to intervening event, R v Cheshire means that chain only broken if
treatment was so independent & self-potent to make D’s conduct an
insignificant contribution – this is rarely the case & court is likely to hold
that all aspects of A R for murder are established.
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