#14655 - Actus Reus - GDL Criminal Law

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Conduct ingredients:

• Conduct crimes (voluntary muscular movement which is criminal i.e. rape)

• Crimes of omission (failure to act is criminal i.e. child neglect)

• Result crimes (the result of an act/omission is criminal i.e. murder)

• State of affairs (state of being is criminal i.e. driving without a licence)

Actus reus must be voluntarily brought about for all crimes – of course mens rea will usually not be present if an action wasn’t voluntary, however even strict liability crimes need to prove voluntary action.

Crimes of Omissions

General rule: no liability for omissions, even where life is in danger, except where there is a duty to act

Airedale NHS v Bland

Hillsborough V in vegetative state – hospital applied for declaration of legal termination of life support

Held: declaration granted as although there was an intention to cause death, this was an omission which would only be criminal if there were a duty to act. Doctors’ duties are based on the best interests of the patient

Duties to act:

• Contractual duties

R v Pittwood

D employed to operate level crossing and forgot to put the gate down. A train collided with a cart killing train driver

Held: failure to perform contractual duty to act meant liability was found

• Statutory duties

Road Traffic Act: duty of driver to stop & report accidents

• Parental duties

R v Gibbins and Proctor

Father & stepmother, Edith, failed to feed daughter who died

Held: whilst the child was not Edith’s she had accepted parental responsibility – this was self-evident to the court and didn’t require authority

• Assumption of duty

R v Stone and Dobinson

The couple who were both of low intelligence took in Ted Stone’s sister who was suffering from anorexia. She was found dead in her bed in appalling conditions

Held: they had assumed a duty to act for the sister’s welfare

• Misconduct in Public Office

R v Dytham

Police officer, on duty, walked past a violent assault. Defence argued that misconduct had to amount to malfeasance, not misfeasance, in public office

Held: wilful failure to discharge statutory/common law duty will find liability for omission. Malfeasance is not necessary but the failure must injure the public interest & call for condemnation

• Creation of a dangerous situation

R v Miller

D fell asleep with a lit cigarette and awoke to a small fire. He moved to another room and went back to sleep. Prosecution relied on his omission rather than initial recklessness

Held: (HL) this was not a continuing act case – rather he had created a dangerous situation.

• Lord Diplock: “failing to take measures that lie within one’s power to counteract a danger that one has oneself created” + mens rea should give rise to liability for omissions. HOWEVER this is not the same as a love-thy-neighbour Good Samaritan principle in law – what is “deplorable” is not always “criminal” as the “limits of the offence” would be difficult to define

R v (Gemma) Evans

Gross negligence manslaughter for sister for whom she, along with her mother, bought some heroine. Carly self-injected & then Gemma witnessed her fall into symptoms which he recognised as an overdose. They did not call and ambulance but put her to bed where she died

Held: the trial judge was wrong to leave the duty to act to the jury; the duty is a question of law. However this did not render the conviction unsafe & the R v Miller principle was extended to manslaughter. The duty here arose from supply of heroine, not familial responsibility

• Lord Judge: if D has contributed or created a life-threatening situation of which he is aware, or ought reasonably be aware, this creates a duty to act to take reasonable steps. This is the in line with the uniformity of civil & criminal liability (R v Adomako)

Compare unlawful act manslaughter (Kennedy No 2) where self-injection was a novus actus interveniens -> the dangerous situation liability has a wider remit as supply wil count

DPP v Santra-Bermudez

Police officer carrying out search asked if D had any sharp objects on him to which he said no. She stabbed herself with a needle in D’s pocket & he had a smirk on his face. Argument that an omission could not be the actus reus of assault/battery succeeded at first instance

Held: the evidential basis of the actus reus for assault could be satisfied by creating a dangerous situation & failing to take reasonable steps to prevent harm.

• Continuing to act

Fagan v MPC

D drove onto a policeman’s foot accidentally but then refused to get off when he was aware of the situation. Argued the concurrence theory wasn’t satisfied

Held: (CA) the actus reus could be satisfied by continuing to act to unite actus reus & mens rea

Omissions: fairness

• Mustill LJ in Airedale NHS said the distinction between omission & comission was “unsatisfactory both morally and intellectually”

• Ashworth: supports the latter

  • Conventional view – no liability for failure to act

  • Social responsibility view – an increased level of social liability for failure to act

    • Prior created dangerous act

    • Relationship duties

    • Undertaken duties

      • Contractual

      • Voluntary undertakings

    • Duties of ownership or control of property

    • Citizenship duties

  • There are ambiguous cases where c/omission blend

• Herring: omits citizenship duties from Great Debates of Criminal Law

‘Good Samaritan Laws’

• Where crimes of omission create liability (i.e. walking past a baby drowning in a puddle and doing nothing)

• In the UK the SARAH Act prevents liability for heroic acts, but it does not create liability for un-heroic ones

• William Wilson: discusses the moral discrepencies in British criminal law:

  • The law would punish someone shooting a child to prevent agony of burning to death once there is no hope for them

  • The law would not punish someone for failing to unlock the front door of the burning building if it were in their control to do so

• Eric Mack: drowning child analogy:

  • Does not satisfy ‘but for’ causation to impose liability for omission

• Elliot & Ormrod: the courts will...