Actus reus

What is an Actus Reus?

Criminal law concerns liability that is to be imposed when behaviour goes against what is expected from a normal member of society. The main elements that make up a crime are an Actus reus and Mens rea.

Firstly an Actus reus, put simply, is the Guilty Act and also can be a failure to act (omission). 

Types of Actus Reus:

All acts must be voluntarily committed and the case of Hill v Baxter illustrates an act may be involuntary where a person is attacked by a swarm of bees resulting in a car accident

Action would refer to those crimes that have an act that is immaterial e.g: Perjury is committed when making a statement which is untrue whilst on oath. 

A state of affairs crime is concerned with those that are rather than doing e.g: being in the country illegally - R v Larsonneur

A result crime concerns where an act causes an end result. i.e: for murder, the end result would be the death of the victim 

Omissions

The diagram below illustrates the various ways in which criminal liability can arise where there is a failure to act. Note that the law does not normally impose liability for failures to act. EXCEPT for the example below.

• A duty arising from contract

Where a person is under a contract to act, his failure can be a criminal offence.

R v Pittwood - Gatekeeper omitted to shutting the gate for a railway crossing and so a person was killed. Held guilty for manslaughter as it was the nature of the contract to prevent this from occurring

• A duty owed by parents to their children

Parents are expected by law to look after their children.  This includes feeding them.

R v Gibbins and Proctor - The child's carers failed to feed the  child and so the child died. Both found guilty for murder

• A duty voluntarily undertaken

A duty of care may also exist where there the defendant has voluntarily taken responsibility for the wellbeing of a person.

R v Stone and Dobinson - An assumed responsibility of care meant the death was classified as murder

• A duty to limit accidental harm

Where a person causes accidental damage, he is under a duty to take reasonable steps to limit the spread of the damage.

R v Miller - it was possible to create liability by failing to remedy a dangerous situation that one has oneself created and so was guilty for arson

• A duty to the public

A policeman has a duty of care as the holder of a public office

R v Dytham - Failure to act when witnessing a crime imposed liability as he was in a position which owes a general duty of care towards the public

• A duty arising from a statute

Liability will arise where a statute has imposed a duty to take positive action. This most frequently occurs in relation to road traffic offences. For example The Road Traffic Act 1988 imposes a number of duties to act.  S7(6) makes it an offence to fail to provide a specimen when required to do so. Similarly, it is an offence not to wear a seat belt.

Mens rea

What is a Mens Rea?

Mens rea defined is the 'guilty mind'  and refers to the state of mind the person was in when committing a crime. The state of mind varies from crime to crime but there are two main states of mind which individually or both together constitute the necessary mens rea for a criminal offence: Intention and Recklessness

The difference can be illustrated with one test being subjective (what the actual D was thinking) or objective (what a reasonable person in the D's position would of thought)

Intention

Intention is purely subjective and so focuses on what the particular D was thinking at the time of the event.

There are two types of intention:

Direct: Where the D desired the end result

In R v Mohan, the D accelerated his car towards a police officer causing the V to jump out of the way. It was held that the D must be proved to have specifically intended to cause the V GBH, really serious harm, through driving his car at the officer.

Oblique (Indirect intent): Where the end result is virtually certain but not desired for its own sake

R v Woolin: Woollin was convicted of murdering his three month old son.  He was alleged to have lost his temper and hurled him onto the kitchen floor, causing him to fracture his skull and die.  

The HL said that the jury may find intent on the part of the defendant where:

1. death or gbh was virtually certain to result from the accused’s acts; and

2.  the accused actually foresaw this.

Recklessness (Subjective test following R v G and another)

Recklessness is taking an unjustified risk.  

R v Cunningham

While attempting to steal money from a gas meter, Cunningham ripped the meter off the wall, allowing gas to escape and endanger the life of a neighbour. He could only be found guilty of “maliciously administering a noxious thing so as to endanger life” if he acted deliberately to endanger life, or if he recklessly endangered life.  To be reckless he has to see the risk and then choose to take that risk.  It is conscious risk-taking.  Cunningham was found not guilty as he had not seen the risk involved.

Transferred Malice

Where a person has the mens rea of one crime, and commits the actus reus of the same crime, although not in the way he expected, he can still be found guilty. The rule operates only where it is the same type of offence the D wishes to commit on either the person or object. TM can transfer person to person or object to object.

R v Latimer: There was no requirement that the mens rea of a crime should relate to a named victim and so mens rea could be transferred

R v Pembliton: Mens rea unable to transfer from person to object or object to person. (Stone to window(Criminal damage) not the same as hitting a person(Battery)) 

Coincidence of Actus Reus and Mens Rea

The defendant must possess the necessary mens rea at the time the actus reus is committed

(a)  the actus reus comes before the mens rea

Sometimes the defendant will argue that he lacked mens rea when he first committed the offence.  In such cases the court will rule that the actus reus is a “continuing act”, and that the defendant is guilty if he had the mens rea at any time during the continuing act.

Fagan v Metropolitan Police Commissioner - Driving the car onto the constable’s foot and then leaving it there was one continuous act.  He was liable as long as he had the necessary mens rea at some stage during that continuing act.  He formed the mens rea when he decided to leave the car on his foot.

(b)  where the mens rea comes before the actus reus

At other times the defendant will argue that the mens rea came first, but was over before he committed the actus reus.  

Thabo Meli v R - It was enough for the prosecution to show that at some time during this chain of events the defendants had mens rea.

Causation

What is Causation?

In result crimes such as murder it is necessary to show that the unlawful act of the accused actually caused the harm to the victim.  The law operates a two-stage test.  It asks first whether the accused in fact caused the harm (the factual test), and, if so, whether he is liable in law (the legal test).

The Factual Cause

This uses the “but for” test.  In this first test the court will consider whether the harm would have happened “but for” the unlawful action of the accused.  

R v White 

White put some potassium cyanide into his mother’s wine glass, intending to kill her as he would inherit under her will.  In fact, the dose was too small to succeed.  Nevertheless, her body was found soon afterwards on the settee in her living room.  The full glass was next to her, with some of the poisoned drink still in it. Medical evidence showed that she had died of heart failure, not of cyanide poisoning.  Nor was there any link between the poison and the heart attack.

It was decided on appeal that he could not be convicted of murder as he had not caused her death.

R v Pagett - It was decided that the action of the police was foreseeable, and Pagett had therefore caused his girlfriend’s death.

The Legal Cause

Once it has been established that the accused is the factual cause of the harm suffered by the victim, it then has to be shown that he is also the legal cause. This makes sure that people are not found guilty when they are not to blame for the end result.  The court asks whether the defendant’s act continues to make a significant contribution to the end result.

R v Smith - Smith was convicted of murder

The original wound was still an operating and substantial cause at the time of the death.  

However, the chain of causation may be broken, either by the victim or by some unforeseeable event.  

(i) by the victim

The defendant will not be the legal cause if he can show that the victim caused the end result himself.  However, this will only succeed if the victim’s reaction was totally unreasonable.

R v Roberts - The victim jumped out of a car travelling over 20 mph after the driver, who was giving her a lift to a party, told her to undress and grabbed her coat.  He also told her that he had beaten up other girls who had refused.  The question before the CA was whether he was responsible for her injuries. He was responsible as the victim’s reactions were reasonable

Similarly, the chain of causation is not broken by any particular condition of the victim that makes him more susceptible to harm.  Where the victim has a particular susceptibility, for example a thin skull, that makes him particularly susceptible to harm, the defendant must “take his victim as he finds him”.  In other words, he is responsible for all the harm that he causes, even harm he couldn’t have foreseen

R v Blaue - Because of her religious beliefs as one of Jehovah’s Witnesses she refused a blood transfusion which doctors said could have saved her life

People must take their victims as they find them.  This includes their religious beliefs.

(ii) by an unforeseeable event 
In cases of bad medical treatment the accused will rarely escape liability.  However, an example of a case where the defendant succeeded is:

R v Jordan - There had been a series of medical errors, and these had been the sole cause of his victim’s death.  The court said that the medical treatment was “palpably wrong"

Strict liablity

What is Strict Liability?

For some crimes there is no need for the prosecution to prove mens rea. This could be for the whole offence, or for one element of it.  These are known as crimes of strict liability. Most of these have been created by statute.  They are designed to protect the public, and are generally minor offences.

Identifying Strict Liability Offences

There is a presumption in favour of mens rea, and this is especially strong in truly criminal cases. These offences are likely to result in the D receiving a custodial sentence or have a big impact on their lives the courts have held it is less likely for an offence to be classed as strict liability, mens rea must also be proved.:

Sweet v Parsley-Stephanie Sweet was convicted under The Dangerous Drugs Act 1965:  she had sub-let some rooms to students who, unknown to her, smoked cannabis there.  She was convicted of being concerned in the management of premises used for the purpose of smoking cannabis.  On appeal, her conviction was quashed.  The HL decided that this was a “truly criminal” offence and so needed proof of mens rea.

A strict liability offence must be a matter of social concern.  These are normally regulatory offences.

Alphacell Ltd.v Woodward -  The court decided that the defendants had in fact caused the polluted matter to enter the river, and that strict liability applied.  The company was guilty.

Smedleys v Breed - A housewife found a dead caterpillar in a tin of peas she bought from a supermarket.  The HL agreed with the lower courts that this was a strict liability offence, and that it did not matter whether or not Smedleys had taken all reasonable care.

Harrow LBC v Shah and Shah - 

The owners of a shop were aware of the rules about the sale of lottery tickets. They put up notices in their shop, and told staff not to sell any tickets to anyone under the age of 16.  Nevertheless one of their staff sold a ticket to an under-age boy, even though he seemed older.  They were guilty: liability was strict. No mens rea was needed for the age of the boy.

Offences - Criminal Justice Act 1988

Assault

Under S39 of the Criminal Justice Act 1988, assault is a summary offence with a maximum penalty of six months imprisonment.  The elements of the offence have been developed at common law.

The actus reus of assault is: an act by D that makes V apprehend immediate, unlawful personal violence

There is no need for any physical contact between defendant and victim

Smith v Superintendent of Woking Police Station - The defendant stood in the garden of his victim, staring through the window at her dressed only in her night-dress.  He was guilty of assault: even though he could not attack her at that very moment, her fear was of something sufficiently immediate and violent.

R v Ireland - Ireland had made a series of unwanted silent telephone calls to three women, causing them to suffer palpitations, cold sweats, anxiety, dizziness and insomnia.  He appealed against his conviction for abh on the ground that he had not committed an assault on the women (as required for conviction for abh).  His conviction was upheld.

The Mens Rea for assault is either intention or Cunningham recklessness

to make his victim apprehend immediate, unlawful violence, or have seen the risk of this and yet gone ahead with his act.

R v Venna - The defendant was arrested after being involved in a fracas with the police during which he had fractured with his foot the hand of one of the officers.  He was convicted of assault occasioning abh.  He appealed on the ground that recklessness was insufficient mens rea for the offence.  It was decided that recklessness was sufficient for the offence.  

Battery

Under Section 39 of The Criminal Justice Act 1988 battery is a summary offence with a maximum penalty of six months imprisonment or a level 5 fine. The elements of the offence have been developed at common law.

The actus reus of battery is the infliction of unlawful personal violence by the defendant upon the victim

In Cole v Turner  battery was defined as “the least touching of another person in anger”.  This includes the clothes a person wears.  For example, in Thomas  the rubbing of a girl’s skirt was held to be sufficient for a battery. 

A battery can be committed without the defendant touching the victim himself

Fagan v MPC - The defendant accidentally drove his car onto a policeman’s foot and then intentionally left it there.  This was a battery.  The actus reus occurred when Fagan drove onto the policeman’s foot.  The mens rea occurred when he decided to leave the car there.

R v Haystead  – Indirect AR of battery

The defendant committed a battery against a woman when he punched her.  He also committed a battery against her child when it fell out of her arms onto the floor, even though there was no direct contact between Haystead and the child. 

The Mens Rea for battery is intention or recklessness as to causing a battery.

It was said in Venna: “…the element of mens rea in the offence of battery is satisfied by proof that the defendant either intentionally or recklessly applied force to the person of another”.