Actus Reus

The actus reus is the physical element of the crime. It can be: 

• An act or
• a failure to act (an omission) or
• A "state of affairs"

In most cases the actus reus will be something the defendant does, but there are situations in which a failure to act is sufficient for the actus reus.

The act or omission must be voluntary on the part of the defendant. If the defendant has no control over his actions then he has not committed the actus reus. In Hill v Baxter (1958) the court gave examples of where a driver of a vehicle could not be said to be doing the act of driving voluntarily, e.g. being stung by a swarm of bees, being struck on the head by a stone or having a heart attack whilst driving. Other examples of involuntary acts include where the defendant hits another person because of a reflex action or muscle spasm. Another example is where one person bumps into a second person, causing them to bump into a third person. In this situation the act of the second person is involuntary.

Even though he has hit the the third person, he has not committed the actus reus for any assault. See the case of Mitchell (1983). These examples show that criminal law is concerned with fault on the part of the defendant. Where there is an absence of fault, then the defendant is not usually liable

State of affairs cases

There are some rare instances in which the defendant has been convicted even though he did not act voluntarily. These situations involve what are known as "state of affairs" cases. E.g. Larsonneur (1933) - D immigrant ordered to leave United Kingdom, decided to go to Ireland, but the Irish police deported her and took her back to the UK against her will. When she landed in the UK she was immediately arrested and charged with being "an alien to whom leave to the country had been refused, she had been found in the UK. She was convicted because she was an alien who had been refused leave to land and she had been "found in the UK". It did not matter that she had been brought back by the Irish police against her will.

Consequence of actus reus

For some crimes the actus reus must also result in a consequence. This can be seen in the offence of assault occasioning actual bodily harm (section 47 of the Offences Against the Person Act 1861). There must be an actus reus (the application or threat of unlawful force) but there must also be a consequence of "actual bodily harm", in other words an injury of some kind to the victim. This could be just a bruise or it could be a broken nose or finger etc. It could even be a psychiatric injury. Without this consequence there cannot be a section 47 offence.

Omissions as actus reus

the normal rule is that an omission cannot make a person guilty of an offence. This was explained by Stephen J, a 19th century judge, in the following way:

"A sees B drowning and is able to save him by holding out his hand. A abstains in doing so in order that B may be drowned. A has committed no offence."

Some other countries have a law which is known as a "Good Samaritan" law. It makes a person responsible for helping other people in an "emergency situation", even though they are complete strangers e.g. when Princess Diana's car crashed in France the journalists who were following her took pictures of the crash, they were threatened by the French authorities to be charged under the French "good samaritan" law.

There are problems in enforcing such a law: people can abuse the law to lure innocent people into dangerous situtaions where they could be robbed, there is also the risk that an untrained person could do more harm than good while intervening, also who decides what an "emergency situation" is? Also there is the quiestion of whether people have to put themselves at risk in order to help. it seems unlikely that the law would require this. In the case of Miller (1983) the House Of Lords thought that a defendant who created a dangerous situation would only be expected to take reasonable steps to resolve it.

Exceptions to the rule

There are exceptions to the rule that an omission cannot make a person guilty of an offence. In some cases it is possible for a failure to act (an omission) to be the actus reus. An omission is only sufficient for the actus reus when there is a duty to act. There are six ways in which such a duty can exist:

• A statutory duty
• A contractual duty
• A duty because of a relationship
• A duty which has been taken on voluntarily
• A duty through one's official position
• A duty which arises because the defendant has set in motion a chain of events.

A statutory duty - An Act of parliament can create liability for an omission. E.g. offences of failing to report a road traffic accident and failing to provide a specimin of breath. In fact, these offences can only be committed by failing to do something. Another example is where an Act of Parliament creates a duty e.g. in section 1 of the Children and Young Persons Act 1933. This puts parents who are legally responsible for a child under a duty of providing food, clothing, medical care and lodging for their children. If a parent fails to do this they can be guilty of wilful neglect. A more recent example is the duty of family members to protect a child that they know is being abused.

A contractual duty - In Pittwood (1902) a railway-crossing keeper omitted to shut the gates, with the result that a person crossing the line was struck and killed by a train. The keeper was guilty of manslaughter. A more modern example would be a lifeguard who left his post unattended. this would make him guilty of an offence had a swimmer been injured or drowned.

A duty because of relationship - This is usually a parent-child relationship as a parent has a duty to care for young children. A duty can also exist the opposite way around, where a grown-up child is caring for an elderly parent. E.g. Gibbins and Proctor (1918) Where a father and his partner deliberately starved a seven-year-old girl to death. They were both convicted of murder. The father had a duty to feed her because he was her parent and his mistress had undertaken to look after the children, inluding the girl, so she was also under a duty to feed the child. The omission or failure to feed the child was deliberate with the intention of causing death or serious harm to her. In these circumstances they were guilty of murder, as the failure to feed the girl was enough for the actus reus of murder.

A duty which has been undertaken voluntarily - In the above case the mistress had voluntarily undertaken to look after the girl so owed her a duty of care. Another example of this is Stone and Dobinson (1977) where Stone's elderly sister Fanny came to live with them, she was eccentric and anorexic, eventually became bedridden and unable to care for herself. Dobinson occasionally helped bathe her and sometimes prepared food for her. Fanny died from malnutrition. Both Ds were found guilty of her manslaughter. As Fanny was Stone's sister he owed a duty of care to her. Dobinson had undertaken some care of Fanny and so owed her a duty of care. their duty was to either help her themselves or to summon help from other sources. Their failure to do either of these meant that they were in breach of their duty.

A duty through one's official position - This is very rare but did happen in Dytham (1979) where D was a police officer who was on duty, he saw the victim being thrown out of a nightclub about 30 yards from where he was standing. Following the throwing out, there was a fight in which three men kicked V to death. D took no steps to intervene or summon help. When the fight was over, D told a bystander that he was going off-duty and left the scene. He was convicted of misconduct in a public office. Because Dytham was a police officer, he was guilty of wilfully and without reasonable excuse neglecting to perform his duty.

A duty which arises because the defendant set in motion a chain of events - The concept of owing a duty and being liable through omission was created in the case of Miller (1983) where a squatter had accidentally started a fire, did not attempt to put it out and went back to sleep. He was convicted of arson. In Miller (1983) it was not the setting of the fire which made him guilty but his failure to take reasonable steps to deal with the fire. This failure to act meant that he had committed the actus reus for arson. He did not have to put himself at risk, only take reasonable steps e.g. summon fire brigade. Another case that illustrates this failure to take reasonable steps when there is a dangerous situation is Santana-Bermudez (2003) where a police officer asked the D if he had anything sharp in his pockets before searching him. D said "no" but knew he had a syringe in his pocket. The PO put her hand in his pocket and was injured by the object which caused bleeding. The D was convicted of assault occasioning actual bodily harm under s 47 of the OAP Act 1861. The knowledge of danger to PO but not warning her was enought for the actus reus of assault occasioning actual bodily harm.

Key facts

• Statutory duty - e.g. wilful neglect, section 1 of the Children and Young Persons Act 1933
• Under a contract, especially of employment - Pittwood (1902)
• Because of relationship, such as parent-child - Gibbins and Proctor (1918)
• A duty voluntarily undertaken, e.g. care of an elderly relative - Stone and Dobinson (1977)
• Because of a public office, e.g. police officer - Dytham (1979)
• As a result of a dangerous situation created by the defendant - Miller (1983), Santana-Bermudez (2003)

Involuntary manslaughter and actus reus - Involuntary manslaughter can be committed in two different ways:

• Unlawful act manslaughter
• Gross negligence manslaughter

Unlawful act manslaughter cannot be committed by an omission. There must be a positive act. this was decided in Lowe (1973) D was the father of a 9-week-old baby who became ill and died. D, who was of low intelligence, said he had told the baby's mother to take the child to the doctor but had not done anything else. The child's mother was of subnormal intelligence. D was convicted of manslaughter of the baby but the Court of Appeal quashed the conviction because there was no unlawful "act". An omission is sufficient to create liability for unlawful act manslaughter. However, gross negligence manslaughter can be committed by omission. It could be argued that Lowe should have been convicted of this as he owed the child a duty of care. For gross negligence manslaughter, the D must owe the V a duty of care. If D's omission then causes the death of V he can be liable of gross negligence manslaughter.

The duty of doctors - there can be cases where doctors decide to stop treating a patient. If this discontinuance of treatment is in the best interest of a patient then it is NOT a omission which can form the actus reus. this was decided in Airedale NHS Trust v Bland (1993) Bland was a young man who had been crushed at the Hillsborough football stadium tragedy. This left him with severe brain damage. he was in persistent vegetative state, unable to do anything for himself and unware what was happening around him. He had been in state care for three years and the doctors asked the court for a ruling that they could stop feeding him artificially through a tube.

The court ruled that the doctors could stop artificially feeding Bland even though it was known that he would die as a result. This was held to be in his best interest.

Comment on the law of omissions

There are several issues. These include:

• Should there be wider liabilty for omissions such as the Good Samaritan law?
• The problems of deciding when a duty should be imposed so that an omission is sufficient for the actus reus of the offence
• should a person be liable for failure to act when the assume a duty?
• Omissions in medical treatment
• the justification of statutory imposition of liability for an omission

Good Samaritan law - Other countries, like France, have a law that places people under a duty to help. Although there a problems in having such a law, it can be argued that the modern view of moral responsibilty is in favour of such a duty.

Problems of deciding when a duty exists - It is not completely certain when a duty to act will exist. The normal way of deciding this is: 1. By the judge at the trial determining whether there is evidence capable of establishinga duty in law. 2. The jury then deciding whether the duty does actually exist. 3. Finally, the jury have to decide whether the duty has been broken. This means that the law is capable of expanding to cover more situations. This was stated in Khan and Khan (1998) The Ds supplied heroin to a new user who took it in their presence and collapsed. They left her alone and by the time they returned to the flat she had died. The conviction for unlawful act manslaughter was quashed but the Court Of Appeal thought there could be a duty to summon medical assistance in certain circumstances, so that a defendant could be liable for failing to do so.

The point that the aw is capable of expanding to include new duty situations was stressed in Khan and Khan when the Court Of Appeal stated obiter that duty situations could be extended to other areas. however, this could be argued to make the law too uncertain. In what new situations will it be decided that a failure to act can be suffiecient for the actus reus of an offence?

Assuming a duty - It can seem harsh that a person who accepts an adult into their home can be held to have assumed a duty of care towards that adult (see Stone and Dobinson). An adult is normally held to be responsible for their own life. In fact, a mentally capable adult can refuse medical treatment even though this is likely to cause their death. If the adult is vulnerable, then the argument for imposing a duty is that the person assuming the duty is in the best position to ensure that potential harm is avoided. They will know of the vulnerablity of the victim when others do not. this is the reason for placing such a person under a duty to act and making them liable for a failure to do anything. Such a duty can be filled by summoning help. It is not necessary for the person to do more than that, in Stone and Dobinson the defendants were found guilty because they did not summon help.

Medical treatment - One area where the law seems contradictory is in the duty of doctors. If doctors decide it is in the patient's best interest to withdraw treatment from the patient, then they are not liable for any offence in respect of the patient's death. This was established in Airedale NHS Trust v Bland. Even though by withdrawing feeding from an unconscious patient, the medical staff are aware that this will cause the patient to die, they are not liable for the omission. The key issue is that the failure to feed has to be in the patient's best interest. However, the House of Lords in Bland emphasised that euthanasia by a positive act terminating the patient's life would remain unlawful.

Statutory duties - Statutes impose duties in a wide variety of situations and make it an offence to fail to do something. Many of these are connected with vehicles and/or driving. Laws in this area often also impose strict liability. This means that not only is the defendant liable if he has failed to do something but, in addition, the prosecution do not have to prove that he had any mens rea. The justification for this is the greater good of society. If a driver fails to get insurance to drive, those injured by him will have difficulty getting compensation for their injuries. The defendant himself is unlikely to be able to pay. Some of the statutory duties have been imposed because of the difficulty of proving an offence.

This was the reason for the introduction of the offence of causing or allowing the death of a child or vulnerable adult under the Domestic Violence, Crimes and Victims Act 2004. Prior to this act, where a child had died as a result of physical abuse in the home the prosecution used to have difficulty in discovering which member of the household had actually caused the death. For example, if both the mother and father were charged with murder of the child then each would blame the other so that it could not be proved which one had done it. Under the 2004 Act all members of the household are liable for failure to protect the child. This is important as the law should provide children and vulnerable adults with as much protection as possible. The law may have the effect of persuading other family members to report the abuse.

Causation

Where a consequence must be proved, then the prosecution has to show that:

• the defendant's conduct was the factual cause of that consequence, and
• it was the legal cause of that consequence, and
• tehre was no intervening act which broke the chain of causation

Factual cause - The defendant can only be guilty if the consequence would not have happened "but for" the defendant's conduct. This "but for" test can be seen in operation in the case of Pagett (1983) where the D used his girlfriend as a human shield in a police shootout and she was killed by a police bullet. Pagett was guilty because the girl would not have died "but for" him using her as a human shield against the bullets. The opposite situation was seen in White (1910) where the defendant but cyanide in his mother's drink in an attempt to kill her, but she died of a heart attack before the poison could kill her. So he was not guilty of murder, but attempted murder.

Legal cause - There may be more than one act contributing to the consequence, some of these acts may be made by other people than the Defendant. The rule is that the D can be guilty if his conduct was more than a "minimal" cause of the consequence. But the defendant's conduct need not be a substantial cause of the victim's death. In some cases they have stated that the conduct must be more than de minimis. In Kimsey (1996) the Court of Appeal held that instead of using this Latin phrase de minimis it was acceptable to tell the jury it must be "more than a slight or trifling link". Kimsey was involved in a high speed car chase, she lost control of her car and another driver was killed in the crash. The evidence about what happened immidiately before D lost control was unclear. The trial judge directed the jury that D's driving did not have to be the "principle, or a substantial cause of the death, as long as you are sure that it was a cause and there was something more than a slight or trifling link", D's conviction was upheld by COA. There may be more than one person whose act contributed to the death. the D can be guilty even though his conduct was not the only cause of death. In Kimsey both drivers were driving at high speed, but only one was found guilty.

The "thin-skull" rule - The defendant must take the victim as he finds them. This is known as the "thin-skull" rule. It means that if the victim has something unusual about his physical or mental state which makes an injury more serious, the defendant is liable for the more serious injury. So, if the victim has an unusually thin skull which means that a blow to his head gives him a serious injury, then the D is liable for that injury. Even if the blow would only have caused bruising in a "normal" person. This is illustrated by the case of Blaue (1975) where the D stabbed a young woman, because she was a Jehovah's Witness she refused the blood transfusion that would have saved her life. She died and the defendant was convicted of murder. The fact that the victim was a Jehovah's Witness made the wound fatal, but the defendant was still guilty because he had to take his victim as he found her.

Intervening acts - there must be a direct link from the defendant's conduct to the consequence. This is known as the chain of causation. In some situations something else happens after the defendant's act or omission and, if this is sufficiently seperate from the defendant's conduct, it may break the chain of causation. E.g. D stabs V, V gets put in ambulance and on way to hospital ambulance crashes, V sustains massive head injuries and dies, D is not liable for the death of V. Under the "but for" test it could be argued that V would not have been in the ambulance if not for D's actions, however the accident is such a major intervening act that D could not be held liable.

The chain of causation can be broken by:

• an act of a third party, or
• the victim's own act, or
• a natural but unpredictable event

To break the chain of causation so that the D is not responsible for the consequence, the act must be sufficiently independent of D's act and sufficiently serious. Where the defendant's conduct causes a foreseeable action by a third party, then the D is likely to be held to have caused the consequence. This principle was applied in Pagett (1983)

Medical treatment - medical treatment is unlikely to break the chain of causation unless it is so independent of the defendant's acts and "in itself so potent in causing death" that the defendant's acts are insignificant. The following three cases show this:

• Smith (1959) - two soldiers had a fight and one was stabbed in the lung by the other. The medic gave him artificial respiration which made his injuries worse and killed him. The poor treatment probably affected his chances of survival by around 75%. However, the original attacker was still guilty of murder. it was held that the D would be guilty, providing that the injury caused by D was still an "operating" and "substantial" cause of death. Smith was guilty because the stab wound in his lung was still "operating" and it was a substantial cause of V's death.
• Cheshire (1991) - D shot V in the thigh. V needed major surgery. V developed breathing problems and was given a tracheotomy. 2 months later V died from rare complications left by the tracheotomy. these complications were not diagnosed by the doctors. By the time V died the original wounds had virtually healed and were no longer life threatening. D was still held to be liable for V's death. In this case the COA held that even though treatment for injuries was "short of the standard expected of a competent medical practitioner" D could still be held criminally responsible for the death. D's acts need not be the sole cause or even the main cause of death provided that his acts contributed significantly towards V's death.
  

• Jordan (1956) - V had been stabbed in the stomach. He was treated in hospital and the wounds were healing well.He was given an antibiotic but suffered an allergic reaction to it. The next day another doctor ordered that a large dose of the antibiotic be given. V died from the allergic reaction to the drug. In this case the actions of the doctor were held to be an intervening act which caused the death. The D was not guilty of murder.
  

In the first two cases the doctors were carrying out treatment for the injuries in an attempt to save the V's life. The Vs would not have needed treatment had they not been seriously injured by the Defendant. In such situations the attacker is still liable even though the medical treatment was not very good. This was pointed out in Cheshire 1991 by Beldam LJ:

"Even though the negligence in the treatment of the victim was the immediate cause of death, the jury should not regard it as excluding the responsibility of the accused unless the negligent treatment was so independent of his acts, and in itself so potent in causing death, that they regard the contribution made by his acts as insignificant."

In the third case of Jordan (1956) the fact that the V was given a large amount of a drug when the doctors knew he was allergic to it was a sufficiently independent act to break the chain of causation. However, if a normal dose of the drug is given as part of emergency treatment, without the doctor's knowing that V is allergic to it, then the giving of the drug will not break the chain of causation.

the switching off of a life support machine by a doctor when it has been decided that the victim is brain-dead does not break thye chain of causation. This was decided in Malcherek (1981)

Malcherek (1981) - D stabbed his wife in the stomach. At hospital she was put on a life-support machine. After a number of tests showed that she was brain-dead, the machine was switched off. D was charged with her murder. The trial judge refused to allow the issue of causation to go to the jury. D was convicted and the Court of Appeal upheld his conviction.

If the D causes the victim to react in a foreseeable way, then any injury to the victim will be considered to have been caused by the defendant.

Roberts (1971) - A girl jumped from a car in order to escape from D's car to escape from his sexual advances. The car was traveling at between 20 and 40 MPH and the girl was injured jumping from it. The D was held to be liable for her injuries.

Marjoram (2000) Several people, including D, shouted abuse and kicked the door of V's hostel room. they eventually forced the door open. V jumped from the window of the room and suffered serious injuries. D's conviction for inflicting GBH was upheld by the COA. In this situation it was reasonably foreseeable that V would fear that the group were going to use violence against him and that the only escape route was the window.

However, if the victim's reaction is unreasonable then this may break the chain of causation. In Williams (1992) a hitch-hiker jumped from D's car and died from head injuries. The car was traveling at about 30 MPH. The prosecution alleged that there had been an attempt to steal the V's wallet which is was he jumped from the car. The COA said that the V's act had to be foreseeable and also had to be in proportion to the threat. The question to be asked was whether the V's conduct was:

"within the ambit of reasonableness and not so daft as to make his own voluntary act one which amounted to a new intervening act (novus actus interveniens) and consequently broke the chain of causation"

This makes it necessary to consider the surrounding circumstances in deciding whether the V's conduct had broken the chain of causation. When the to the V are serious, then it is more likely for it to be reasonable for him to jump out of a moving car. Where the threat is very minor and the V takes drastic action, it is more likely that the courts will hold that it broke the chain of causation.

A major problem in the law of causation is: what is meant by more than a "slight and trifling link"? This is vague and difficult to define. As a result it could lead to juries applying different standards in different cases.

Taking your victim as you find him: Where the V has a medical condition, which makes the injury more serious, should D be liable for the more serious injury? (See Blaue) It can be seen as being unjust where the D does not know about the medical condition. For example, if a V has an exceptionally thin skull, so that a blow that would have only bruised a "normal" person kills him, it is justifiable that the D should be responsible for the more serious injury. D did not intend to kill but if he intended to cause serious injury then D is guilty of murder. Also, should D be liable when V refuses treatment?