- Created by: Hbrandxx
- Created on: 30-12-18 15:24
Actus reus elements
Element 1: Conduct
- Concerned with the physical movement of D's body, or lack of movement
- Certain offences are defined in such a way that liability can arise in the absence of movement/without positive action:
A) Omissions liability: 3 ingredients must be satisfied= recognised offence, duty to act, breach
B) Posessions offences: offensive weapons/material. D may act to gain possession or state of possession can be presented as D's omission to dispense of item
C) State of affairs offences: e.g. be a member of a terrorist organisation
- V is female, under 18, V is a police officer etc. Surrounding facts that must exist for liability.
- Can also be mental circumstances e.g. **** is without consent (V's mental state is the circumstance element)
Actus reus elements and Categories of offences
The result element
- Results of D's conduct required for liability e.g. D's act caused V's death
- Result must be casually connected to D's conduct: two stages must be satisfied to establish causation: CAUSATION IN FACT (logical connection in fact), CAUSATION IN LAW
- Don't include a result element so no need to apply rules of causation e.g. perjury
- Actus reus is completed as soon as D performs conduct in proscribed circumstances
- E.g. murder requires a result to criminalise. Actus reus is complete when D performs conduct in certain proscribed circumstances, with conduct causing proscribed result. Rules of causation apply.
- Conduct element need not be specified e.g. murder requires unlawful killing (result) of a person (circumstance)
- Reluctance to criminalise for omissions- stems mainly from respect for D's autonomy in the sense of her right to peruse person goals without undue interference from the law
- Although D's omission may be morally wrong, criminalisation must weigh D's wrongful omission against issues of practicality and respect for D's autonomy
- For omissions liability to be found further ingredients are required: D's offence must be capable of commission by omission, legally recognised duty to act, unreasonably failed to act on duty
Offences capable of commission by omission
- For majority of offences, the question of whether an offence can be committed by omission will be a matter of statutory interpretation and case law precedent.
- Homicide: e.g. Gibbons and Proctor (omission to feed the man's child, duty breached with intention to cause serious harm thereby satisfying mens rea of murder)
- Non fatal offences against the person: assault, wound, battery
- Property offences: e.g. Miller case= D convicted of arson by not putting out accidental fire
Omissions liability 2
Requirement: Duty to act
- Next requirement is that D must have a legal duty to act
- Duty to act based on specifics of offence: e.g. Road Traffic Act makes it an offence to fail to report a motor accident in which D is involved (statute imposes duty on those involved)
- Duty to act based on a contract: e.g. contracted to protect V/her property, quite uncertain
- Duty to act based on a familial relationship: uncertainty as to who it extends to past parent/child and husband/wife as well as uncertainty of the boundaries of the duty e.g. does a parent still owe a duty to an emancipated child over 18?
- Duty to act based on assumption to care: arise when D has voluntarily undertaken to care for V in cicumstances where V becomes depdendent on that care. Promise to care must be explicit. Unclear in some cases how much/little D must do before a duty arises and when it ends.
- Duty to acted based on endangerment: D's previous conduct has created/contributed to a dangerous situation. Having created the danger D must act to prevent harm arising.
Omissions liability 3
Requirement: Breach of duty to act
- To test whether D has breached duty to act, must specify what the duty required her to do.
- Duty to act obliges D to what is reasonable which is a question for the jury
- Confusion can arise: Stone & Dobinson conviction (both low functioning) decided by objective reasonable man test which can cause considerable injustice.
Requirement: Causation by omission
- Where D's offence is a result crime (murder), must be demonstrated that a certain result came about and it was caused by the conduct element.
- For D to commit a result crime by omission, the causation rules must be applied: e.g. in Evans if the duty was to call 999 as soon as V overdosed, the jury must show that had she done so V may not have died.
- Conduct crimes (perjury etc) there's no result element so no requirement that it should be caused by D's conduct but for a result crime a result element is essential so must show a casual link between D's conduct and that result
- Legal principles are applied via a 2-stage test: causation in fact, causation in law
Causation in fact
- But for D's conduct element, would the result not have came about? I.e. did the result occur due to D's contributory act or her omission to prevent the result. Quite objective.
- White: D's conduct (attempt to poison) wasn't the factual case (died of heart condition)
Causation in law
- Narrows the catchment of causation rules in terms of fairness.
- Legal cause must be 'substantial' (more than neglible, slight), must be 'blameworthy' (obvious), must be 'operative' (chain of causation between conduct + result elements mustn't be broken).
Omissions: Duty to act
- Some contend that liability for omissions should be expanded either by: creating a new omissions-based offence for failure to perform an 'easy rescue' (bad Samaritan offence) OR a new duty to act for 'citizenship' (prevent harm for benefit of other citizens)
- Ashworth recommends a 'social responsibility view': to improve fair warning.
- For Ashworth the current approach to omisions has 2 errors: assumes moral difference between an act/omission and that autonomy argument is misconceieved
- Tension between subjectivism (focus on D's individual culpability) and objectivism (focus on harm caused by D's conduct)
- Subjectivism: D1 shoots V1 and V1 dies, D2 shoots V2 but V2 doesn't die= equally culpable
- Objectivism: not liable where result doesn't come about, result is 'additional wrong'