#3590 - Actus Reus - Criminal Law

• AR = the conduct element. Prescribes what needs to be done, in what circumstance and with what result (but not necessarily all three).

  • Result: V is killed (note that we don’t really criminalise results in themselves, but rather the causation of results).

  • Conduct: in rape: penetration.

  • Circumstance: property belongs to another.

• All crimes have an AR. It is possible to have missing MR elements but this is not so for AR.

Omissions

• Stephen LJ: “It is not a crime to cause death or injury, even intentionally, by any omission”.

• This is not strictly true, but we are usually unwilling to prosecute for omissions:

  • Criminal liability for failure to act breaches autonomy.

  • It is less burdensome of the law to require someone to refrain from doing something then it is to oblige him or her to do it.

• Often difficult to distinguish between acts and omissions (e.g. child accidentally puts hand on D’s genitals in Speck, but D is guilty of an offence by positive act).

  • Note relevance of ‘killing’ v ‘letting die’. Doctors could turn of life support in Airedale v Bland because it was allowing nature to take its course. Mustill: ‘the omission to perform what had previously been a duty will’ not be illegal.

• EXCEPTIONS:

  • Duty to act: can arise by virtue of (note that where there is a duty D must do what is reasonable, as assessed by a jury):

    • Automatically arising duty e.g. parent.

    • Assumed duty for a person e.g. carer. Includes stepparent; this is a continuing duty once adopted (Gibbins v Proctor, Stone and Dobinson).

    • Contractual obligation (Pitwood)

    • Statute: failure to provide a breath specimen to a police officer. Also in Children and Young Persons Act 1933.

    • Common law duty: most common is refusal to assist a police officer when called upon to aid in restoring peace.

• D creates a dangerous situation – the Miller principle, where D fell asleep and caused a fire from his cigarette. He had a ‘responsibility’ to put out the resulting fire. Subtly expanded in Evans.

• Continuing act – sometimes courts have chosen to treat an omission as a ‘continuing act’. In Fagan v MPC, D ran over a policeman’s foot and failed to move when he realised. The act was treated as continuing, but in reality it was liability for omission.

Causation

• Causation in criminal law is based largely on common sense with a remoteness of damage filter being built into our heads.

• The law believes that people are responsible for their own actions and most of the time contextual background information will be irrelevant in determining guilt.

• But-for causation can be applied, but it tends to be too wide in some circumstances. The test is that D’s act must be an ‘operating and substantial’ cause.

• Note that there can be more than one cause: D’s act may be a cause rather than the cause. Where there are multiple causes, we will usually ask if, by the time the consequence came about, was D’s action still a substantial and operating cause?

  • Note: where causes are concurrent, D’s act need not be enough to cause the harm in itself.

• There may be fault, but if no causation can be proved then there is no crime e.g. Dalloway – child killed by cart where driver is not holding reigns, but even ability to control the house would not have saved her.

Novus actus interveniens:

• The free and voluntary act of a third party can break the chain of causation, if it renders D’s act no longer a substantial and operating cause of the result.

• Third party voluntary acts:

  • Where the third party makes a fully voluntary decision to act as he does, it is proper that his act breaks the chain of causation.

    • Pagett – D used his girlfriend V as a shield against police. He shot at police, who shot back, killing V. D had caused V’s death – the firing back was instinctive and could be treated like a ricocheting bullet.

    • Kennedy (No 2) – A drug dealer who prepares a syringe which is then willingly administered by a drug user is not guilty of manslaughter should they die as a result. The decision must be fully informed – some debate over the notion of vulnerability of V.

    • Evans – D prepared heroin for her half sister V. She willing injected, then became very ill. D failed to get medical attention for her and cared for her throughout the night. This constituted a liable omission and D was guilty of manslaughter.

    • Roberts – V was injured trying to escape from D’s car. He was still liable because the harm was a foreseeable result of his act.

• Note that use of innocent agents, involuntary acts, and third party lawful excuse will not break the chain of causation.

• Medical intervention

  • Requires an incredibly high level of negligence/exceptional circumstances to break the chain of causation (R v Cheshire)

    • Smith – A doctor gave inappropriate treatment for V’s pierced lunch, caused by D. D was still liable because the wound he created was operating throughout.

    • Jordan – V made a near full recovery from an injury inflicted by D. Prior to discharge from hospital, the nurse gave him the wrong drugs, which killed him. D was not liable because the wound he created had ceased to operate.

    • Malcherek – turning off a life support machine does not break the chain of causation – same operating cause.

• Acts by the victim

  • May break the chain of causation if they are unreasonable, but otherwise it is unlikely.

  • Eggshell skull rule – D should take his victim as he found him, ‘with all subsisting weaknesses that might exacerbate the injury resulting from D’s act:

    • Blaue – V was a Jehovah’s Witness who refused to consent to a blood transfusion and died. D was still liable for murder even though she could have been saved. Religious grounds will not be questioned on reasonableness grounds – take your victim as you find them.

    • Holland (1841) – V refused medical treatment and died from a wound even though he could have been saved. Such refusal was reasonable then but would probably be unreasonable now (except in the context of religion like Blaue).

• The principle in Blaue should not be stretched too far e.g. take V as you find him with a propensity to commit suicide at emotional harm. Strange case of Dear where D was liable for V’s death, even though he aggravated the wounds and arguably caused his own death – it was the same wound, and you had to take the victim as you found him. This is unreasonable and the line of case law – including Roberts – suggests that V...