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PPRRIINNCCIIPPLLEESS OOFF CCRRIIMMIINNAALL LLIIAABBIILLIITTYY 11..

Actus Reus

By the end of this unit, you will be able to:

Explain what is meant by the term actus reus, and illustrate your answer with examples Understand the legal principles of causation and the factors affecting it. To explain and critically evaluate when an omission [failure to act] may constitute the actus reus of

an offence.

Homework: During this unit, you will be set the following. In completing homework, you will be expected to do your own research and supplement your own notes. This is essential to show understanding. 1. Complete the following past A2 essay for homework: In general the criminal law prohibits the doing of harm, but does not impose criminal liability for an omission. However, there are justifiable exceptions to this general principle. Assess the truth of this statement by reference to situations where a failure to act may result in criminal liability [50] 2. Sheet One

End of Unit Assessment. As with AS, you will sit a DRAG test on elements, but this will be done at the end of the Mens Rea (next) unit.

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What is a crime?

The majority of crimes require both a and an , both of which must be proved beyond reasonable doubt by the prosecution.

Actus Reus

The Actus Reus is the physical element of the crime and generally speaking should be a positive voluntary act. However, as you will quickly see this is not a hard and fast rule (there are few

of those in the criminal law). For example there are some situations where the failure to act my be sufficient for an actus reus... or the act does not even need to be voluntary!

BUT: The general rule is that D’s act or omission should be voluntary. This means that they don’t do it as the result of a muscle spasm, or other ‘unconscious’ conduct.

Leicester v Pearson (1952) What kind of behaviour would you class as involuntary?

Types of AR

1. A Consequence or Result Crime This describes the majority of crimes, where D has committed a particular, positive act or omission. There must be a tangible outcome. E.g. s.18 Offences Against the Person Act 1861 covers wounding with intent – all layers of the skin must be broken! What is the result of murder? 2. State of Affairs This is the rarest. This means that D simply finds themselves in a set of circumstances... and it’s these circumstances which are enough for the AR. Remember the phrase “wrong place, wrong time”? All the prosecution must prove is that the circumstances exist!

Facts: D did not stop for pedestrian on zebra crossing and hit V.

Ratio:

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R v Larsonneur (1933) Winzar v Chief Constable of Kent (1983) – This case was explained in the introduction to criminal law! 3. Conduct For these offences the actus reus is simply the prohibited conduct.

Theft is one example. One of the AR elements is the “appropriation of property belonging to another”. The taking of the property is enough.

Perjury is another example, where D is guilty if they lied under oath in court. It doesn’t matter whether the lie was actually taken into account in the case.

4. Omissions *this is a popular essay question in section A – so make sure that you are confident with it*

Not doing something is a crime! These are rare, and we will come back to them… generally, the rule is that there is no duty to act. Why?

Facts: D was a French national who was asked to leave Britain. She went to Ireland who forcibly deported her back to GB. On arrival she was arrested and charged with being an illegal alien under Aliens Order 1920

Law:

Facts: Law: Conviction was upheld. The QBD held that the importance was that D was there on the highway drunk, rather than the involuntary behaviour.

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Omissions: When is to not do something , a crime?

An omission is a failure to do something. Generally speaking, failing to do something will not impose criminal liability on you. This is because it can impose an unfair burden on other people. Look at the following situations and explain whether these people owe a duty to act or not:

A passer-by seeing a car crash and not helping.

A policeman sees a person lying on the floor and does not go to help.

A passer-by sees child pushing another into a river when they know they cannot swim. Would your answer change if the passer-by was a lifeguard?

England & Wales does not have a ‘Good Samaritan’ law, unlike other countries, like France and the Netherlands. When Diana died in the crash, and the photographers stood around taking photos, the French threatened to prosecute them under this law. The majority of omissions come from common law. What are the pros and cons of a ‘Good Samaritan’ Law?

PROS CONS

When is it fair to impose a duty on another person? Which are the most important – moral or legal

duties?

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What about Doctors? Should we impose a duty on them?

The general rule comes from.... Airedale NHS v Bland (1996) But... R v Adomako (1993) So... what do we learn? When will a medical omission not be a crime? Do you agree with this? Why/ why not?

FACTS: LAW:

FACTS:

LAW:

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Facts: Ratio:

When do I owe a legal duty to act? Well, it actually comes from the civil law in the following case: Donoghue v Stevenson 1932 Who is your ‘neighbour’? e.g. So far, the criminal courts have identified five situations which impose a duty on D to act, and thus may lead to prosecution if he does not. 1. Duty arising from Specific Relationships.

The most obvious example of a relationship that will give rise to a duty to act, is that of a parent and child. This has been confirmed by both statute ( s.1 Child and Young Persons Act 1933) and the courts. R v Gibbons & Proctor (1918)

FACTS: LAW: Ds were responsible for her, had failed to feed the child and their conviction for murder was upheld by Court of Appeal.

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2. Duty Arising from Contractual Obligations

D is under a contractual duty to act (normally because of their job) and if they fail to do so, they may be liable if lives of others are likely to be endangered as a result. Which other professions might this include? R v Pittwood (1902) 3. Duty Arising from a Public Office.

What other situations might this cover? R v Dytham (1979) 4. Voluntary Assumption of Duty. If you voluntarily accept responsibility for another, you may be imposed with a duty to act with regard to that person’s welfare. R v Stone & Dobinson (1977)

FACTS: D operated a gate at a level crossing which he left open. A cart crossed the level crossing and was struck by a train, killing the driver.

LAW:

LAW: He was guilty of misconduct in office because he did not protect V or apprehend the attackers. Guilty of wilfully and without reasonable excuse neglecting to perform his duty.

FACTS:

FACTS: Ds were common-law wife & husband of low intelligence. S‟s sister, Fanny, came to live with them. She was an anorexic, and would stay in her bedroom. She eventually became ill, confined to bed and died of malnutrition and blood poisoning. Neither D had sought medical help.

LAW:

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R v Instan (1893) 5. Duty Arising from Dangerous Prior Conduct If D has created a dangerous situation which creates a risk to another’s life or property, then they are under a duty to stop or limit the results of the action. If they don’t, then they may be liable for the results of their action. R v Miller (1983) READ THE LAW REPORT ENCLOSED, AND ANSWER THE QUESTIONS. 1. What crime was Miller charged with? 2. What is a result [or consequence] crime? 3. What is an omission? 4. Did Miller owe a duty to act? 5. Which legal academics does Lord Diplock refer to in his speech?

FACTS: LAW:

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6. Was the defendant held liable for damaging the house by falling asleep whilst smoking? Or for damaging the house by failing to take reasonable steps to put out the burning bed? 7. What if the defendant had found that his nine-year-old child had set the bed on fire and had left it to burn? 8. What if the fire had originated in an electrical fault in the wiring of the house when he switched on his electric blanket? 9. What if the defendant’s fellow squatter had died in the fire?

R v Santana-Bermudez (2003)

HHoowweevveerr...... this list isn’t finite. R v Khan & Khan 1998 said that the courts may add new duty situations as they arise... and they have! R v Wacker 2002

FACTS: LAW: Ds failure to tell the policewoman of the needle was enough to convict. He knew the danger and failed to take steps to avert it. Conviction upheld.

FACTS: LAW:

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As well as the courts, Parliament has created some other statutory situations

Statutory Duty to Act Some statutes also impose on D a duty to act, and have created offences if the act is not completed.

s.170 Road Traffic Act 1988 states that it is an offence for a driver involved in a road traffic accident to fail to report an accident to the police.

S.1 Child and Young Persons Act 1933 states that a parent or guardian can be prosecuted for failure to look after their child.

S.6 Road Traffic Act 1988 states that it is an offence to fail to provide a specimen of breath when asked by a police man to do so.

S.19 Terrorist Act 2000 states that it is an offence to fail to disclose information. More recently, the government has created what is more commonly known as “familial homicide” under s.5 of Domestic Violence, Crime and Victims Act 2004.

1. What is the offence created under this act?

2. Why was the mother convicted? What was her ‘omission’?

3. Do you agree with the new law? What kind of situations do you think it was created to prevent?

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STUDENT TASKS... Read the following situations and complete the table to shown if there is a duty to act ion each situation. Explain your answers using relevant cases.

SITUATION IS THERE A DUTY TO

ACT? EXPLANATION

Jack & Isabel are having a picnic on a farm. Jack lights a fire near a haystack. The haystack catches fire, burning down the barn next to it. Jack and Isabel run off and do nothing to prevent the spread of the fire.

Mitch is a lifeguard at a swimming pool. While on duty, a child drowns. Mitch didn’t realise what was happening because he was chatting to one of his friends.

Mark starts to look after his elderly aunt. She is frail and needs to be helped with her feeding. After 3 weeks, Mark gets a new girlfriend. He forgets to take food to his aunt and she dies of starvation.

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Evaluation

In answering essay questions (Part A of the first paper) your AO2 marks come from the evaluation of the topic and a critical approach to these cases, and potential problematic areas.

What does this mean? Simply put, you need to identify the good and the bad things about the current law, and understand how potential changes might affect it.

For each of the areas below, evaluate this area of the law.

Area What does this mean? Critically Evaluate

How do you ‘give up’ or ‘end’ a duty (can you?)

R v Smith, Airedale NHS v Bland, DPP v Pretty

When is a duty imposed upon you?

Should we impose standards of good practice on certain people?

Are they justified?

Should we be more prescriptive in allocating duties?

Consolidation/ Further Reading:

1. For those of you unsure about this area take a look at the following article: Liability for Omissions in English Criminal Law p. 20-23 A Level Law Review (January 2007)

2. For those of you aiming for the top grades (B+) read the chapter on omissions from Criminal Law (4th Edition) Storey and Lidbury p25-35 and use the information to extend your AO2 notes.

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Causation.

D must cause the harm to V

In order to prove that D’s actions resulted in the crime, the prosecution must prove the two elements of causation. They have to prove a link between the actions of D and the consequence e.g. that D’s act caused the death of V in the case of murder. If there is no link or if there is a break in the chain (known as a novus actus interveniens) then D may not be liable for the harm!

Both elements of causation must be proven.

11.. FFaaccttuuaall

Based on the facts of the case, did D’s action cause the harm? This is known as the ‘but for’ [sine

qua non] test. Simply put: but for D’s actions, would V have suffered harm? If the answer is no, then D is not liable. R v White (1910)

22.. LLeeggaall As well as factual causation, they must also prove legal causation. The key question is is whether D’s conduct made a ‘significant’ contribution or was a ‘substantive and operative cause’ of the outcome. It does not have to be the sole or main cause, but must be more than

a minimal cause. This is known as the de minimus rule.

FACTS: D wanted his inheritance early, and so put arsenic in his mother‟s drink. She drank a little, but actually died from a heart attack. D was charged with murder.

LAW:

James has been stabbed forty times. Sam comes

along and pricks the end of his finger with a drawing

pin. James dies

Nigel pulls a knife on Bob who runs down the

pavement and hits Gladys. Gladys falls into the road

and is hit by a car and dies

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Applying the law: Look at the case described below. Did D’s actions amount to a “substantive and operative cause” of V’s death?

V was taken to a hut by D where he was struck over the head with intent to kill him. His unconscious body was then rolled over a small cliff to make the death appear to be an accident. Medical evidence showed that he had survived the fall but was died from exposure.

R v Thabo Meli

As with the case described above, there can be more than one factor which contributes to the final outcome. So what is the chain of causation? The link between D’s actions and the harm done to V is known as the chain of causation. To be liable

for the act, there must be no break in the chain of causation between D’s actus reus and the

prohibited consequence e.g. death. What can break it? If there is a “novus actus interveniens”, this literally means “

“ then D will not be liable for the outcome.

According to the court there are three things which may break the chain of causation:

i. Unreasonable actions of V ii. Unforeseeable actions of a 3rd Party

iii. ‘Palpably wrong’ medical treatment.

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PPOOSSSSIIBBLLEE BBRREEAAKKSS IINN TTHHEE CCHHAAIINN OOFF CCAAUUSSAATTIIOONN 1. Unreasonable actions of V. These may break the chain of causation, but only if they are so unreasonable as to be daft. R v Roberts (1971) There are a number of other cases on similar facts e.g. William & Davis, where D’s convictions for manslaughter were quashed. Why do you think that V’s actions broke the chain in Williams & Davis? A more modern case is that of Majoram (2000) where V leaped out of the window, seriously injuring themselves and D’s conviction stood, and V’s actions were within the range of actions foreseeable by the reasonable person. 2. Unreasonable actions of a Third Party Again, these will only break the chain if they are unreasonable, and not if they are reasonably foreseeable. R v Pagett (1983) Dave pushes Clive into the road where he is hit by Sheila’s car. Break/ No break Lauren pushes Louise off the Empire state building. On the way Break/ No Break

down Louise is hit by a bullet from Max’s gun

FACTS: Law: D was still liable for the injuries to V as jumping out of the car was a reasonable action to foresee in the circumstances. The court added that only really „daft‟ behaviour by V would break the chain of causation.

FACTS: D was on the run from the police, and used his pregnant girlfriend as a human shield. He shot at the police, & they shot back, killing the girlfriend. D argued that the actions of the police were enough to break the chain of causation.

Law:

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3. ‘Palpably wrong’ medical treatment. R v Jordan (1956) This case has caused a lot of trouble, as all of the following cases seem to contradict it. Really, the way to look at it is to see it as a case which is decided correctly on its individual facts [Blaue later decided that Jordan is in effect limited to its own facts.] R v Smith (1959) *KEY CASE* R v Cheshire (1991) READ THE ENCLOSED LAW REPORT AND ANSWER THE QUESTIONS BELOW IN AS MUCH DETAIL AS

YOU CAN!. 1. Did Cheshire succeed in his appeal? 2. Outline the main facts of the case 3. Were the doctors to blame? 4. Were the gunshot wounds the substantial and operative cause of death?

FACTS:

Law: The actions of the doctors did constitute a „novus actus interveniens‟, and so D‟s conviction was quashed. A very controversial decision, which has in reality been limited to its exact facts. The court said that had it been a normal dose, D would have been guilty, even if V was allergic.

FACTS: Law: D‟s conviction was upheld. Despite the fact the medical treatment was incorrect & harmful, D‟s actions were held to be the “operating & substantive” cause of V‟s death. Negligent medical care will not break the chain unless it is „so independent of D‟s actions that it renders them insignificant.‟

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5. Why would the courts prefer to blame Cheshire instead of the doctors? 6. Why is Cheshire ‘significantly different than Jordan? 4. Other things which might break the chain

a) Switching off a life support machine R v Malcherek & Steel (1981)

b) What if V has a ‘Thin Skull’?

What happens if V has a pre-existing condition, weakness or belief which makes the attack on V more severe? Does this break the chain of causation? R v Blaue (1975) *KEY CASE*

FACTS: Joint appeal. Malcherek had stabbed his wife, who developed a brain clot, and brain damage. Steel hit V with a large stone causing severe brain injuries.

Law:

FACTS: Law: V‟s actions were not unreasonable. The court stated the principle that D

takes the victim as they find them.

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R v Hayward (1908) R v Holland 1841 – Blaue follows

Facts: Ratio: There is also the more recent case of Dear 1996, where V was slashed with a Stanley knife and refused treatment. Despite V’s refusal, his appeal was dismissed.

FACTS: D returned home in state of ‘violent excitement’ & wanted to ‘give his wife something’. They fought & V ran from the house in to the road followed by D. she fell and he kicked her, bruising her arm. She died. Medical exam showed it was as the result of a persistent thyrus gland & there was medical evidence to prove that a person with this condition might die from a combination of fright & physical exertion

Ratio:

FACTS: Ratio:

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How much do you understand?

1. Complete the following activity, using appropriate cases to support your answer

2. In your own words, explain how the prosecution prove Actus Reus.

SITUATION DID THEY CAUSE THE

RESULT? EXPLANATION

Bob rejects Vicky’s advances, so she stabs him. He is taken to hospital where it is discovered he has a rare blood type and the hospital does not have enough supplies of his blood. He dies

Gary decides to rob a bank. He takes his girlfriend with him as a getaway driver. The robbery goes wrong and armed police arrive. He tries to escape and uses his girlfriend as shield. The police start firing and his girlfriend dies.

Dave is fed up of his wife. He decides to kill her and puts an overdose of arsenic in her morning tea. She takes a couple of sips and passes out. Thinking she is dead, Dave drags her out of the house, whacking her head on the pavement. He dumps her in the skip at the bottom of the street. She is found and taken to hospital, where it is discovered that she has extensive brain damage, and the doctors declare her dead, turning off the life support machine.

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Principles of Criminal Liability: Actus Reus

Across 5. Law which imposes a statutory duty to help others [4,9] 6. ........ crime, which relies on the consequence to create the actus reus e.g. murder [6] 8. State of ....... Where the AR is created by the circumstances D finds himself in [7] 9. Case illustrating the presumption that you take V as you find them [5] 10. Case establishing that only the unreasonable behaviour of V would break the chain. [7] 12. Name of Stone's sister who died after he and his common-law wife assumed responsibility [5] 15. Case illustrating duties arising from contractual obligations [8] 18. Case illustrating the need to prove that D's actions were the factual cause of the offence. [5] 19. Gibbons and Proctor's relationship to their V [6] 20. de ...... rule which states that D's actions must be more that a minimal cause [7] 21. Oh, so you are allergic to these drugs eh? Well, I'll just give you even more! [6] 22. An example of a conduct crime [7]

Down 1. The second causation test, proving that Ds actions made a 'significant' contribution [5] 2. Oops! the stretcher is a little too heavy for me to carry! [5] 3. The general rule gov1erning Ds actions [9] 4. The two-stage test which must be proved by the prosecution to establish Actus Reus [8] 7. A duty imposed by a law e.g. s.170 Road Traffic Act 1988 [9] 11. French national prosecuted under Aliens Act 1920, despite conduct being involuntary [10] 13. Test to establish factual importance of D's actions to outcome [3,3] 14. Uh oh! My bed is on fire. Oh, well I'll just move rooms [5] 16. A failure to act (8) 17. Don't shoot me girlfriend, even if I shoot you first and she's me shield! [6] 19. R v Dytham illustrates this duty [6,6]