ACTUS REUS
AQA – A2
CRIMINAL LIABILITY
The requirements of a criminal offence: actus reus and mens rea
Most criminal offences require both a physical element and a mental
element. The physical element is known as the ‘actus reus’ and the mental
elemnt is known as the ‘mens rea.’
The definition of a particular crime, either in statute or under common
law (law made by judges) will contain the AR and the MR. The existence
of AR is essential for criminal liability. Each crime has its own AR laid
down by statute or a judge.
Examples of AR:
The AR of s18 of the Offences Against the Person Act 1861 occurs when
D causes an Unlawfully wounding or GBH
The AR under the Theft Act 1968 arises-
The AR for murder developed by judge is-
The same act by the D may be part of the AR of different crimes,
depending on its consequences.
e.g. a stabbing- If they die- AR for murder
If they don’t die- AR for GBH
Many crimes in their definition may require that an act may be committed
‘unlawfully’ or ‘without lawful excuse’. If the act is committed lawfully
then there is no AR and therefore no crime.
E.g’s of lawful GBH-
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ACTUS REUS
Crimes can be divided into 4 types depending on the nature of their AR:
1) Conduct
Some crimes are committed if D does a certain act, regardless of the
consequences
E.g., i) strict liability
ii) dangerous driving
iii) possession of drugs
iv) purgery
2) Consequences
For some crimes however it is necessary to show more than just conduct:
the result or consequence of the action must also be assessed:
e.g. i) Murder- dead body
ii) Death by dangerous driving
3) Circumstances
These are ‘being’ rather than ‘doing’ offences. D may be found guilty of a
crime simply be being in a particular place when this state of affairs has
been declared to be wrong:
e.g driving dangerously is only an offence if it is on a public highway
WINZAR V CHIEF CONSTABLE OF KENT 1983
D in hospital drunk. Police were called to remove him; they dumped him in
the pavement in front of the hospital and charged him with being drunk in
a public place.
Certain Acts of Parliament have adopted this approach:
s4 of the Road Traffic Act 1988- ‘It is an offence to be in charge of a
motor vehicle on a road or public place while unfit to drive through drink
or drugs’
The conduct/act must be voluntary
The prosecution must prove that the accused voluntarily brought about
the AR of the crime. The act or omission must have occurred because of
the conscious exercise or will on the part of the accused.
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If the accused is not in control of his actions for some reason his actions
are obviously not voluntary and he may plead the defence of automatismNot in control of yourself.
E.g.
i) In the case of KAY V BUTTERWORTH D fell asleep while driving and
drove into a group of soldiers.
Was there any voluntary conduct which could be the AR for the
offence, and if so what was it?
ii) A pushes B, so that B looses his balance and falls against C injuring him.
Who is liable?
iii) In HILL V BAXTER 1958 the judge gave the following example in an
obiter statement:
“A car driver is attacked by a swarm of bees, swerves and injuries
someone” Would he be liable?
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4) ACTUS REUS BY OMISSION
LIABILTY FOR OMISSIONS
(FAILING TO ACT)
It is a general principle of English Law that you cannot commit the
AR of a crime by omitting (failing) to do something.
E.g. If you do nothing to help a drowning man you have not
committed a crime
No criminal liability, but a moral liability
However the law has listed the following situations where a person has a
positive duty to act, and if he fails to do so he will be liable.
5 situations where failing to act is the ACTUS REUS of the offence;
1) WHERE STATUTE LAYS THIS DOWN
E.g. Road Traffic Act 1988 e.g. Not wearing a seat belt
Not reporting an accident
Failing to give a breath test
Not stopping at traffic lights
Children and Young Person Act 1933
If you don’t feed, clothe or get medical treatment for a child in your
responsibility
2) WHERE THERE IS A DUTY UNDER A CONTRACT TO ACT
E.g. Life guard
R V ADOMAKO 1994
FACTS: During an operation A was assisting as an anaesthetist
the tube carrying the oxygen from the ventilator to the patient
became disconnected. A failed to notice the disconnection and 6
minutes later the patient suffered a cardiac arrest and died. At
no stage did A check the equipment. The case against him is that
he has been grossly negligent in failing to notice or respond
appropriately top the obvious signs that a disconnection had
occurred
HELD: duty under a contract to do his job, he failed to do this.
Convicted of gross negligent manslaughter.
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MEDICAL CASES
A doctor is under a duty of care for a patient, unless the patient refuses
medical treatment. If the doctor omits to act then they cannot form the
actus reus of the crime if the patient dies. However where a patient is
not in a position to give instructions about treatment, then it becomes a
question of what is in the patient’s best
interest:
AIREDALE NATIONAL TRUST SERVICE V BLAND 1993
FACTS: B was in a persistent vegetative state. Although he was
able to breathe unaided, he was not conscious and was being fed
through a nasal tube. His relations wanted him to be allowed to die
by stopping feeding him. The NHS asked the court for a
declaration on the matter. If the hospital stopped feeding him they
would be guilty of failing to do their job under their contract.
HL HELD: The doctors were allowed to stop feeding him
because it was in the patient’s best interest.
Compare this too PRETTY, why did Mrs. Pretty lose her case?
PRETTY 2001
FACTS: PRETTY was dying from a terminal illness & she wanted the court
to declare that if her husband was to help her die he would be immune
from prosecution.
HELD: The HL & the European court of Human Rights refused this
request declaring that he would not be immune from prosecution
3) YOUR STATUS OR POSITIONe.g., Sea captains must take reasonable steps to protect the lives of
passengers. Police officers have a duty to protect the public.
DYTHAM 1979
FACTS: Policeman didn’t stop a fight.
He failed to do his job under his contract.
Charged with GROSS CRIMINAL NEGLIGENCE.
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4) VOLUNTARY ASSUMED RESPONSIBILITY
If a person voluntarily undertakes to look after another duty will be
imposed:
R V INSTAN 1893
FACTS: Instan was a niece of an elderly Aunt. Instan
volunteered to look after the aunt. Niece stopped
feeding her when she was ill. The Aunt died as a result.
D failed to look after her Aunt.
HELD: Charged with gross negligent manslaughter.
STONE & DOBINSON 1977
FACTS: Taken in their sister who was ill. They were unable to look
after her (they were of low intelligence) the sister died.
HELD: They were both convicted of GNM.
5) DANGEROUS SITUATION CAUSED BY D & D HAS FAILED TO
PUT IT RIGHT
MILLER 1983
FACTS: D fell asleep having a cigarette, the mattress set on fire. He
failed to get help.
HELD: Charged with arson.
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CAUSATION
If the AR of a crime requires prohibited consequence (e.g. death in
murder or manslaughter) it must be established that the suspects
conduct is a:
1) FACTUAL
&
2) LEGAL CAUSE OF THE CONSEQUENCE
1) FACTUAL CAUSE OF CONSEQUENCE –‘Causation in Fact’
THE ‘BUT FOR’ TEST.
The question that must be asked when deciding if the actions of the D
were a factual cause of a consequence is this:
But for the actions of the accused would the consequences have
happened?
If the answer to this is YES the D is- not a factual cause
If the answer to this is NO then D is- is a factual cause
Or put another way, would the consequences have happened anyway,
whatever the conduct of the accused?
WHITE 1910
FACTS: D put poison in his mother’s drink, intending to kill her. She
died of a heart attack before she could drink it.
HELD:
If the consequence would have happened anyway at the time that it did
then the actions of the accused is NOT a FACTUAL CAUSE of the
consequence & cannot be the AR of the offence in question.
If it is decided that the actions of the accused did in some way
contribute to the consequence then they are a factual cause of it.
Not a factual cause of death, because the victim would have died
anyway.
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It is sufficient that D’s act makes a more than minimal contribution to
the consequence this was decided by the judge in the case of KIMSEY
1996.
Most cases are straightforward and the jury can be left to decide the
issues for themselves. Sometimes however although the actions of the
accused may be A factual cause if death, the judge may need to direct
the jury about whether it can be a legal cause.
2) CAUSATION IN LAW
Even though an action may be a factual cause, there may be legal rule
that prevents the jury accepting it as a legal cause. This usually happens
when something has happened after the actions of the D, but before the
unlawful consequence.
This is referred to ac a NOVUS ACTUS INTERVENIENS
Novus Actus Interveniens
This is an intervening act or event which happens after the initial incident
that is so substantial that it takes over as the new cause, or ‘breaks the
chain of causation.’ If it is, the judge can tell the jury that the actions of
the D are no longer the legal cause. The problem is deciding if the act or
event is substantial enough to do this.
1) ACTIONS BY MEDICAL PRACTITIONERS
R V JORDAN 1956
FACTS: The victim of a stabbing was given incorrect medical
treatment at hospital as a result he contracted pneumonia & died
which was the medical cause of death by the time of his death the
stab wounds had mainly healed.
CA HELD: The Crown convicted but the CA quashed the conviction
finding JORDAN NOT GUILTY.
They said he had received PALPABLY WRONG TREATMENT this
together with the fact that his wounds were nearly healed & no longer
SUBSTANTIAL OR OPERATIONAL meant he was NOT GUILTY
The Chain of causation broken by the palpably wrong medical
treatment. - NAI
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R V SMITH 1959
HELD : S was found GUILTY as the wounds were still a substantial
and operating cause at the time of death. Medical treatment didn’t
break the chain of causation.
R V CHESHIRE 1991
FACTS: D shot his V, whilst in hospital he received poor medical
treatment he contracted respiratory problems & as a result had a
Medical treatment will hardly ever break the chain of causation.
heart attack & died.
Substantial & operating causes and life support machines
HELD: D’s convictions was upheld. The fact that the V contracted
respiratory problems did not break the chain of causation even though
in the wounds were nearly healed.
The CA held that “ it was only in the most extraordinary & unusual
medical cases that medical treatment would break the chain of
causation”
R V MALCHEREK & STEEL 1981
M stabbed his wife, she was recovering in hospital when she suffered a
pulmonary embolism from which sever brain damage resulted she was
declared ‘brain dead’ by the medical profession and her life support
machine was switched off.
In a similar case Steel attacked a woman with a stone causing her head
injuries. She was placed on a life support machine but that was
switched off & she was declared brain dead.
Both M & S were convicted of murder and appealed to the CA arguing:
that the doctors had technically killed both victims as they had turned
the life support machines off.
CA HELD:
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2) INTERVENING ACTIONS BY THE VICTIM
If the victim of the offence has acted in a way that has contributed to
his or her injury the attacker will still be the cause if the victim’s actions
were a reasonably foreseeable reaction to the actions of the attacker:
R V ROBERTS 1972
D made sexual advances to the V, she jumped out the car. She
suffered ABH. He argued that her jumping out the car broke the
chain of causation. But her actions were reasonably foreseeable. R
was guilty.
Compare ROBERTS to WILLIAMS:
R V WILLIAMS 1992
FACTS: Hitch hiker jumped from Williams’ car & died from head injuries.
There had been attempt to steal V’s wallet & that is why he jumped from
the car. The CA said the V’s act had to be foreseeable & had to be in
proportion to the threat. The question to be asked
“Was D’s conduct within the ambit of reasonableness & not so daft as
to make his own voluntary act one which amounted to a NAI & so
breaking the chain of causation”
3) INTERVENING ACTIONS BY THIRD PARTIES
If a third party has contributed to the unlawful consequences the original
attacker will still be liable if the third party’s actions were a reasonably
foreseeable consequence of the actions of the D:
R V PAGETT 1983
THIN
SKULL
RULE
D fired
at police.
Death of girlfriend (held her as a shield) Argued
The
accused
must
‘take
hiscausation.
victim as he finds him’. If a person’s actions
police broke the chain of
only
result
in the
death
the victim
because
some frailty
or condition
HELD:
D was
guilty
as of
actions
of police
were of
reasonably
foreseeable.
of which the assailant was unaware the assailant will still be held to be.
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4) SELF –NEGLECT
If V mis-treats, or neglects to treat his own injuries this will not break
the chain of causation
HOLLAND 1841
FACTS: D cut V on his finger, the wound became infected, but he
ignored medical advice that he should have the finger amputated. The
wound caused lock-jaw & he died.
The question was the wound inflicted by D the cause of death?
HELD:
5) VOLUNTARY ACTS
House of Lords ruled that a voluntary act by V also breaks the chain
of causation:
KENNEDY 2007
FACTS: D was a drug dealer & V was a heroin addict. One night at V’s
request, D prepared a dose of heroin & gave V a syringe ready for
injection. V injected himself but later died. D was convicted of
manslaughter but appealed that he did not cause V’s death
HELD:
6) ACCELERATION PRINCIPLE
D will still be considered liable if he has accelerated V’s death. It is no
defence to say that D was dying of a fatal disease anyway.
ADAMS 1957
FACTS: D was a doctor charged with the murder of one of his patients
who was terminally ill, by means of an overdose of pain killers.
The jury were directed that it did not matter that V’s days were
numbered: ‘If her life were cut short by weeks or months it was just as
much murder as if it were cut short by years’
All the above cases involved actions by someone that were clearly a
FACTUAL cause of death or injury. They were all appealed on the issue of
whether or not the judge had correctly directed the jury as to whether
the actions could be legal cause of death.
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7) PRE-EXISTING CONDITION
HAYWOOD 1908
FACTS: D indicated that he was going to harm his wife. An argument
developed & the woman ran into the road, followed by her husband who
was still making threats at her. The woman collapsed & died. She had a
condition that would not usually cause any problems but the unusual
physical exertion & the fright caused her husband’s treatment had
caused her to collapse.
HELD:
8) THIN SKULL RULE (Take your victim as you find him)
R V BLAUE 1975
FACTS: D stabbed victim. Victim dies. She refused medical treatment
due to her religion. D Argued victim broke chain of causation.
HELD: D was guilty, ‘TAKE YOUR VICTIMS AS YOU FIND THEM’.
Refusal of medical treatment did not break the chain of causation
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EVALUATION OF THE LAW ON CAUSATION
1) The ‘but-for’ test is fair as if there is no factual connection
between D & the offence it is unfair to allocate blame
2) Is it fair & morally right that merely being a ‘factual cause’ is not
sufficient if the consequence if the fault of D? – JORDAN
3) Does the test of ‘REASONABLE FORESEEABILITY’ lead to a fair
result if D claims that he did not foresee the actions of the third
party – PAGETT?
4) Is it right that the jury decide what is reasonably foreseeable
when the V’s actions contribute to the injuries sustained or the
death? – ROBERTS/WILLIAMS
5) Is it fair & morally right that where the D has injured the V who
then receives medical treatment which proves unsatisfactory
should the D claim that he is no longer liable & the treatment has
broken the chain of causation? – SMITH /CHESHIRE/JORDAN?
6) Public policy has shaped judicial attitudes to the development of
the law in relation to supporting the police & the medical services in
the performance of their duties
7) If is fair & morally right to assert that the D must take the victim
as they find them or whether the decisions in BLAUE & DEAR are
too harsh
8) Should the entire blame always be placed on the originator of a
chain of events? – CHESHIRE/PAGETT/ROBERTS
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