#15617 - Actus Reus Short - Criminal Law

AR PQ SCHEME

NB: AR can be either a state of affairs (e.g. owning a gun) or the result of an action (e.g. murder).

1. Was there a voluntary act on the part of the defendant, that amounted to the Actus Reus of a criminal offence.

Yes —

• See below, need to consider whether there was a novus actus or other event that broke the chain of causation.

No —

• Broad rule is Deller [1952]: if D’s actions do not amount to a criminal offence, no crime has been committed, even if D tried his best to commit a crime.

• Must also consider whether, in certain circumstances, D has committed a crime by omission (e.g. where he owed a duty of care to V).

2.a. If there was no clear act, did D commit a crime by omission?

Starting point: there is no general omissions liability in English law, only when D was under a duty to act.

Line between acts and omissions: although the distinction between the two has a great deal of bearing at law, it is hard to distinguish them (question whether we should therefore place weight on the distinction).

• Bland [1993]: B is left braindead after Hillsborough. Question is whether doctors can terminate life-sustaining treatment. House of Lords say that turning off machines is an omission not an act. They say that any duty to act that had previously existed was vitiated by B’s lack of consent and the lack of hope of recovery. “Absent a duty, the omission to perform what had previously been a duty will no longer be in breach of the criminal law.”

• Contrast Speck [1977]: child innocently touches a man’s penis, man does nothing to move the hand. Case turns on act / omission distinction. Held to be an act. Cases show that the courts can use ambiguity here to reach ‘right’ moral conclusion. Problematic from RoL standpoint?

First question: was there a continuing act? Key example is Fagan: D drove onto a policeman’s foot (without MR, by accident), but then left the car on the foot. The act (driving on the foot) was held to be continuing, so there was a coincidence of AR + MR.

Second question: was D under a duty to act? There are four categories here, but the first two are less important: (i) duties can be imposed by statute; (ii) duties of law enforcement.

• Contractual duty: Pittwood [1902]: operator of a gate over a train line did not shut the gate, a man was killed by the train as a result. D guilty of manslaughter.

• Assumed duties: people who voluntarily assume responsibility for another’s welfare will be under a DoC for them. Key example is parent’s duty to care for child. Leading case:

  • Stone and Dobinson [1977]: S + D (both handicapped adults) take in Fanny, S’s sister and attempt to care for her / find a doctor. They do a very poor job (S + D do not attempt to do much despite appeals from neighbours) and F is found dead, in appalling conditions. Lane LJ: upheld manslaughter conviction —S+D had assumed a duty of care for F. The standard of breach was “a reckless disregard of danger to her health and welfare by indifference to an obvious risk of injury to health or by actually foreseeing the risk and determining nevertheless to run it.”

    • Note: it was key here that: (i) D+S had voluntarily assumed responsibility for F and attempted to care for her; (ii) it is not clear what weight the biological relationship between S and F was given here.

Third question: if there was a duty, what was the content of the duty? Herring says it is to do what is reasonable in the circumstances. One issue is whether this is objective or subjective. S+D did not address this. Must also be shown that there was causation.

Fourth question: has D created a dangerous situation?

• Leading case is: R v Miller [1983]: M fell asleep with a cigarette in his mouth, which then lights fire to his mattress. He leaves the room and goes back to sleep elsewhere. Convicted of arson (problem for HL is the coincidence of AR and MR). Lord Diplock states that the conduct of the D for the entire period is relevant.

• Case can be explained either in terms of duty of care or continuing act —D has a duty to minimize the effects of his dangerous behavior, or, as Diplock suggests, his conduct throughout the entire period is relevant.

2.b. if the crime was a result crime, did D cause the required consequence?

R v Dalloway [1847]: The defendant was driving a horse and cart down a road without holding on to the reins. A child ran in front of the cart and was killed. The defendant was not liable as he would not have been able to stop the cart in time even if he had been holding the reins.

Starting point: the courts have been consistent in stating that this is a matter of common sense —see Bingham in Kennedy (No. 2): “Causation is not a single, unvarying concept to be mechanically applied without regard to the context in which the question arises.”

First test: but for / factual causation:

• Leading case is Hughes [2013]: H was driving when V, high on heroin, swerved across the road and collided with H. H was uninsured and did not have a full licence, contrary to s.3ZB of the Road Traffic Act 1988 (causing death while uninsured / unlicensed). SC holds that H is not guilty, as his mere presence on the road was not an operating cause (there had to be something open to criticism in H’s driving, beyond his mere presence on the road): “a “but for” event, is not necessarily enough to be a legally effective cause … there is a well-recognised distinction between conduct which sets the stage for an occurrence and conduct which on a common sense view is regarded as instrumental in bringing about the occurrence.”

• Hughes shows that factual causation is too wide to be practical as a test / general rule.

Second test: “operating and substantial cause.”

• Substantial: it must contribute to the end result —not slight or trifling (see Cheshire)

• Operating: most common way for D to show it wasn’t operating is to show a break in the chain of causation.

Third issue: was there a break in the chain of causation? (novus actus)

In three party cases —e.g. A injures V, who is then injured by B, leading to V’s death —there are four possible outcomes: (i) concurrent causes (both A and B caused V’s death); (ii) B’s act was a novus actus; (iii) B’s act was of negligible effect; (iv) neither of the acts caused death.

Leading case: Kennedy (No. 2) [2007]: K prepared a syringe of heroin for V, who injected himself. V died of a heroin overdose. K was convicted of supplying a class A drug and manslaughter. HL (Bingham): affirm the doctrine of novus actus —“free, deliberate, and informed intervention” usually relieves the first actor of criminal responsibility.

Key principle: — if B’s act is (i) a free, voluntary, and informed act; and (ii) it renders A’s act no longer a substantial and operating cause, A will not have caused the result.

Free, voluntary, and informed act test

1. Rule 1: where B is not acting voluntarily, his action is not a novus actus: if A pushes B into V, injuring V, B is not responsible. A is.

2. Rule 2: where B’s actions are justified, his actions are not considered to break the chain of causation. For example, Pagett [1983]: P shot at police, using his girlfriend (V) as a human shield. The police returned fire, killing V. Goff LJ: “if a reasonable act of self defence against the act of the accused causes the death of a third party, we can see no reason in principle why the act of self-defence, being an involuntary act of the accused, should relieve the accused from criminal responsibility.” It was this reasoning that lead to the minority view in Gnango.

3. Rule 3: Where B does not know the circumstances of his actions, he will not break the chain of causation — e.g. a postman delivering a bomb sent by A.

Act must render D’s actions no longer an operating and substantial cause: Many of the cases here involve incompetent medical treatment. Courts have been reluctant to accept that such treatment breaks the chain of causation. Useful for a PQ to contrast the following:

• Smith [1959]: D, a soldier, stabbed V, another soldier. V was dropped twice on the way to the medical aid station and then was given incorrect and harmful treatment. Lord Parker CJ: chain of causation was not broken. If “the original wound is still an operating cause and a substantial cause” then there is no novus actus; only if the first wound was “merely the setting” for the operation of the second cause is the chain of causation broken.

• R v Jordan [1956]: D stabbed V, who was admitted to hospital eight days later and administered antibiotics. At this time the wound had almost healed. V was allergic to the antibiotics and died. CA: medical treatment caused V’s death. Important factors were the fact that the original would had virtually healed and that the treatment was ‘grossly negligent’. This case is regarded as exceptional.

• Cheshire [1991]: D shot V during an argument at a fish and chip shop. During treatment, V developed respiratory problems and a tracheotomy tube was placed in his windpipe. The tracheotomy scar swelled, blocked V’s windpipe, and V died. The gunshot wounds were no longer life-threatening when V died and if the scar had been properly treated V would have lived. D was convicted of murder. Bedlam LJ: only in the most extreme cases will medical attention be seen as being so “independent of the acts of the accused that it could be regarded in law as the cause of the victim’s death to the exclusion of the accused’s acts.” I.e. D’s acts would need to be seen as “insignificant” in their contribution to V’s death.

Do acts of the victim break the chain of causation?

• Roberts [1971]: R gave V a lift in his...