INTRODUCTION The general basis for imposing liability in criminal law is that the defendant must be proved to have committed a guilty act whilst having had a guilty state of mind. The physical elements are collectively called the actus reus and the accompanied mental state is called the mens rea. It is the fundamental duty of the prosecution to prove both of these elements of the offence to the satisfaction of the judge or jury beyond reasonable doubt. In the absence of such proof the defendant will be acquitted.
ACTUS REUS An actus reus consists of more than just an act. It also consists of whatever circumstances and consequences are recognised for liability for the offence in question - in other words all the elements of an offence other than the mental element. Crimes can be divided into two categories:
First, there are conduct crimes where the actus reus is the prohibited conduct itself. For example, the actus reus of the offence of dangerous driving is simply "driving a mechanically propelled vehicle on a road or other public place" (s2 Road Traffic Act 1988). No harm or consequence of that dangerous driving need be established.
The second type are known as result crimes where the actus reus of the offence requires proof that the conduct caused a prohibited result or consequence. For example, the actus reus of the offence of criminal damage is that property belonging to another must be destroyed or damaged (s1(1) Criminal Damage Act 1971).
Conduct - the conduct itself might be criminal. Eg. the conduct of lying under oath represents the actus reus of perjury. It does not matter that whether the lie is believed or if had any effect on the outcome of the case, the actus reus of the crime is complete upon the conduct.
Examples of conduct crimes:
Perjury Theft
Making off without payment Rape Possession of drugs or a firearm
Result - The actus reus may relate to the result of the act or omission of the defendant. The conduct itself may not be criminal, but the result of the conduct may be. Eg it is not a crime to throw a stone, but if it hits a person or smashes a window it could amount to a crime.Causation must be established in all result crimes.
Examples of result crimes:
Assault Battery ABH Wounding and GBH Murder & Manslaughter Criminal damage
THE ACTUS REUS MUST BE VOLUNTARY The accused's conduct must be "voluntary" or "freely willed" if he is to incur liability. It may be involuntary for a variety of reasons:
AUTOMATISM Automatism occurs where the defendant performs a physical act but is unaware of what he is doing, or is not in control of his actions, because of some external factor.
REFLEX ACTIONS Sometimes people can respond to something with a spontaneous reflex action over which they have no control. Although slightly different, this is sometimes classed as a form of automatism.
PHYSICAL FORCE The conduct may be involuntary in that it is physically forced by someone else, in which case there will be no actus reus.
"STATE OF AFFAIRS" CASES One group of cases which cannot be discussed in terms of voluntary acts are often referred to as the "state of affairs" cases. These crimes are defined not in the sense of the defendant doing a positive act but consisting in the defendant "being found", "being in possession" or "being in charge" etc. In some such cases all the prosecution needs to prove are the existence of the factual circumstances which constitute the crime - the existence of the state of affairs. For state of affairs crimes the actus reus consists of 'being' rather than 'doing'. Eg 'being' drunk in charge of a vehicle ( Duck v Peacock [1949] 1 All ER 318 Case summary) The defendant was charged with the offence of being drunk in charge of a vehicle. At the time of his arrest he was sleeping in the car having been out for the evening drinking. The Magistrate did not impose a disqualification but on a case stated appeal, a disqualification was ordered. Lord Goddard CJ 'This is a question, not of driving, but of being in charge of a car. If what is suggested here were a special reason, it would mean that a man who had taken too much to drink so that he was unfit to manage the car or be in charge of it could escape the penalty of disqualification merely by stopping and going to sleep in the car. The court is not going to give any countenance to such a reason as that. In my opinion, on the facts found by the magistrate there was no ground for saying that any special reason existed for not imposing the disqualification which Parliament has decreed shall otherwise be imposed. Therefore, this case must be remitted to the magistrate with an intimation that we think he was wrong in law, and the respondent must be disqualified for the statutory period.’ or 'being' an illegal alien ( R v Larsonneur (1933) 24 Cr App R 74 case summary). The defendant, a French woman, was deported against her will, from Ireland to England, by the Irish authorities. Upon her arrival she was immediately charged with the offence of 'being' an illegal alien. Her conviction was upheld despite the fact that she had not voluntarily come to England .
OMISSIONS Occassionally an omission can amount to the actus reus of a crime . The general rule regarding omissions is that there is no liability for a failure to act. Eg if you see a child drowning in shallow water and you don't do anything to save that child you will not incur criminal liability for your inaction no matter how easy it may have been for you to save the child's life. This general rule however, is subject to exceptions: 1. Statutory duty:
Liability for failing to act will be imposed where the defendant can be shown to have been under a statutory duty to take positive action. A leading example of such a case is provided by the Children and Young Persons Act 1933, which creates the offence of wilfully neglecting a child. Hence by simply failing to provide food for the child, or failing to obtain appropriate medical care, a parent could be held criminally liable for any harm that results. Another example is the Road Traffic Act 1988 which creates the offences of failing to provide a specimen when required to do so and failing to give a correct name and address when required to do so. See also:
Greener v DPP (1996) The Times, Feb 15 1996.
The defendant was the owner of a young, powerful Staffordshire Bull Terrier. He had left the dog chained in an enclosure in his back garden. The dog had strained and bent the clip releasing its chain. It had escaped from the enclosure and entered a nearby garden where it bit the face of a young child. Section 3(3) of the Dangerous Dogs Act 1991 provides that if the owner of a dog allows it to enter a place which is not a public place but where it is not permitted to be and while it is there it injures any person, he is guilty of an offence. It was held by the Divisional Court that an offence under s3(3) could be committed by omission. The word "allows" included taking and omitting to take a positive step. In the present case the defendant had failed to take adequate precautions. Similar precautions had been taken in the past but they were obviously inadequate as the fastening was not good enough and the enclosure not secure.
2. Contractual duty:
If a person owes a contractual duty to act, then a failure to meet this contractual duty may result in criminal liability:
R v Pittwood [1902] TLR 37
The defendant was employed by a railway company to man the gate at a level crossing. The defendant lifted the gate to allow a cart to pass and then went off to lunch failing to put it back down. A train later collided with a horse and cart killing the train driver. The defendant was liable for the death of the train driver as it was his contractual duty to close the gate. 3. Duty imposed by law
The actus reus can be committed by an omission where there exists a duty imposed by law. There are three situations in which a duty may be imposed by law. These are where the defendant creates a dangerous situation, where there has been a voluntary assumption of responsibility and misconduct in a public office. Additionally an omission may be classified as part of a continuing act.
a). Creating a dangerous situation and failing to put it right: R v Miller [1983] 2 AC 161 The defendant had been out drinking for the evening. He went back to the house he had been staying in and fell asleep on a mattress with a lighted cigarette in his hand. He awoke and saw that the cigarette had started a small fire. Upon seeing the fire, he then got up and went to another room and went back to sleep. At his trial, the prosecution did not rely on the acts of the defendant in falling asleep with a lighted cigarette as being reckless, but relied solely on the grounds that upon becoming aware of the fire he failed to take steps to put the fire out or call the fire brigade. Held: The defendant had created a dangerous situation and owed a duty to call the fire brigade upon becoming aware of the fire. He was therefore liable for his omission to do so.
b). Assumption of responsibility: R v Stone & Dobinson [1977] 1 QB 354 Ted Stone was 67, totally blind, partially deaf had no appreciable sense of smell and was of low intelligence. He lived with his housekeeper and mistress of 8 years, Gwendolyn
Dobinson aged 43 who was described as ineffectual and inadequate. Ted's sister Fanny came to live with them. She had previously lived with another sister but had fallen out with her. She had mental problems and was suffering from anorexia nervosa. Ted and Gwendolyn took her in and agreed to look after her. However, Fanny's condition deteriorated and she was found dead in her bed in appalling conditions. Stone and Dobinson were found liable for her death as they had assumed a responsibility to her by taking her in. They failed to look after her and ensure she got the medical help she needed.
c). Misconduct in a public office: R v Dytham [1979] Q.B. 722 The defendant was a police officer. He stood by whilst a bouncer kicked a man to death. He was charged with the offence of misconduct in a public officer. He argued that the offence could not be committed by an omission as it specifically requires misconduct. Held: The offence of misconduct in a public offence can be committed by an omission. The defendant's conviction was upheld.
An omission can also be classed as part of a continuing act: Fagan v MPC [1969] 1Q.B. 439 A policeman was directing the defendant to park his car. The defendant accidentally drove onto the policeman's foot. The policeman shouted at him to get off. The defendant refused to move. The defendant argued at the time of the actus reus , the driving onto the foot, he lacked the mens rea of any offence since it was purely accidental. When he formed the mens rea, he lacked the actus reus as he did nothing. Held: The driving on to the foot and remaining there was part of a continuing act.
CAUSATION When the definition of an actus reus requires the occurrence of certain consequences, the prosecution must prove that it was the defendant's conduct which caused those consequences to occur. For example, in murder the prosecution must prove that the victim died; in section 18 of the offences Against the Person Act 1861 that the victim was wounded or caused grievous bodily harm; and in criminal damage that the property was destroyed or damaged. There are two types of causation:
(a) Causation in Fact, for which the "But For" Test is used. See: R v White [1910] 2 KB 124. o The defendant put potassium cyanide into a drink for his mother with intent to murder her. She was found dead shortly afterwards with the glass, three-quarters full, beside her. The medical evidence showed that she had died, not of poison, but of heart failure. The defendant was acquitted of murder and convicted of an attempt to murder. Although the consequence which the defendant intended occurred, he did not cause it to occur and there was no actus reus of murder.
(b) Causation in Law, for which, for example in homicide cases, the defendant's act must be the "operating and substantial cau sation”
