Introduction to Actus Reus and Causation

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Actus Reus Introduction

There are two general elements required for the commission of a criminal offence:

Actus Reus~guilty act

Mens Rea~guilty mind

The general presumption is that D must have committed a guilty act whilst having a guilty state of mind.

Both elements must be proven 'beyond all reasonable doubt' by the prosecution because under English law, all persons are presumed innocent until proven guilty, confirmed in Woolmington v DPP (1935). (Golden Thread)

The Actus Reus represents the physical element of a crime and is usually something D does, though it can be something D does NOT do/FAILS TO DO. Basically it covers everything apart from a guilty mind.

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Conduct must be voluntary

Criminal law generally requires positive behaviour, i.e the act or omission that results in a crime must be voluntary on the part of D (acting of own free will). Behaviour will only be considered involuntary when the D was not in control of their own body (eg automatism) and this D will not have committed the AR.

An example could be where D hits another person because of a reflex action or muscle spasm; or one person pushes a second person, causing them to bump into a third person. The second person who has been pushed would incur no liability as the act was involuntary and thus has not committed the AR of assault (Mitchell 1983).

Similarly, behaviour may be considerd as involuntary where considerable pressure has been put on D to act a certain way. This shows us that criminal law is concerned with fault on D's part. Where there is an absence of fault, usually D is not responsible. 

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Lord Denning: "The requirement that the act (of the accused) should be a voluntary act is every criminal case. No act is punishable if it is done involuntarily."

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Hill v Baxter (1958)

This case gave examples of where a driver of a car could not be said to be doing the act of driving voluntarily. Including losing control of a car because he was stung by a swarm of bees, struck on the head by a stone or having a heart attact whilst driving.

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Types of Actus Reus- Conduct Crimes

Do not have to result in a consequence.

D's actions are prohibited and the consequences of the act are immaterial eg. dangerous driving: you don't have to injure someone or damage property eg. perjury; D is guilty if he simply lies under oath in court even if the court doesn't believe the lie.

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Types of Actus Reus-Result Crimes

Ds behavious must produce a particular result; it needs a consequence. eg Death by Dangerous Driving; the act must result in a death. eg. s.47 OAPA 1861 ABH: there must be an AR (the application or threat of unlawful force) but there must also be the result of actual bodily harm such as a bruise or psychiatric injury etc. Without the consequence there cannot be s.47 OAPA 1861 and this would just be assault/battery.

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Types of Actus Reus- State of Affairs

These are a minor exception.

For these crimes, the AR consists of 'being' rather than 'doing' eg. 'being' in charge of a vehicle whilst under the influence of alcohol or drugs. This can cover the rare instances where D may be conviction even though actions were not voluntary.

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R v Larsonneur (1933)

D was a french national who was ordered to leave the UK. She went to Ireland but Irish police deported her and took her in police custody back to the UK where she was put in a cell on Holyhead police station. She did not want to return to the UK and so returning was involuntary. Upon arrival in the UK she was immediately arrested and charged. Despire her involuntary conduct, she was found guilty. (Aliens Order 1920) of being 'an alien to whom leave to land in the UK has been refused.'

This is probably far stricter than would ever be decided today but does demonstrate how narrowly courts can define terms.

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Winzar v Chief Constable of Kent (1983)

D was taken to hospital but thwne examined by a doctor was found to be drunk and not ill. D was told to leave but was later found slumped on a seat in a corridor. Police were called and they took D to the roadway outside the hospital. Once there, there formed the opinion that he was too drunk to be left alone and so took him to the police station where he was charged and later convicted of being found drunk on a highway (s.12 Licensing Act 1872)

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This is a failure to act. Originally, English criminal law only punished those who caused a prohibited result by a positive act and the generally position is still that there is no general duty to act in a situation. There is no general duty on people to help strangers in distress, as explained by Stephen J (C19th judge). There may well be a moral obligation to be a Good Samaritan, but there is no legal one.

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R v Gibbins and Proctor (1918)

Whilst there is no general duty to help others, English law has to accpet that in some circumstances it should also punish individuals whose failure to act similarly caused the prohibited consequence. eg.

Gibbins was the father of several children, including a 7 year old girl, Nelly. His wife had left him and he was living with his lover, Proctor. G and P kept Nelly separate from the other children and deliberately starved her to death. Afterwards they concocted a story about how Nelly had gone away; infact G had buried her in the brickyard where he worked.

G and P were convicted of murder, which was upheld by CA. G owed a duty to Nelly as her father and P was held to have undertaken a duty. The omission of failing to feed was deliberate thus proving intention of killing or causing GBH, which is sufficient for murder.

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Causation Introduction

Causation relates to the causal relationship between conduct and the result and is an important aspect of the AR of an offence. The prosecution need to show an unbroken and direct chain of causation between Ds act and the consequence. In particular, conduct must be both the:

  • Factual cause of the consequence.
  • Legal cause of the consequence.

There must be no novus actus interveniens that breaks the chain of causation. If there is, there will be no/reduced liability on Ds part.

Causation must always be established and complications can arise if there is more than one cause of death. This could be:

  • An act or omission of a 3rd party that takes place AFTER Ds act.
  • Some characteristic of V that could mean V dies of their injury when a fitter person may have survived.
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Factual Causation~But For Test

D can only be guilty if the consequence would not have happened as and when it did but for Ds conduct. This is also explained by the latin phrase "sine qua non" (without which it could not be).

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R v Pagett (1983)

D took his 16 year old girlfriend hostage at her home. Police called on him to surrender so D came out, holding the girl in front of him as a human shield, and fired at the police. The police returned fire and the girl was killed by police bullets. D was not guilty of murder but convicted of UDA manslaughter.

D was guilty because his girlfriend would not have died 'but for' him using her a human shield in the shoot-out.

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R v White (1910) CA

D put cyanide into his mother's lemonade drink, but she (coincidentally) died of heart failure before the poison could kill her. The court asked: but for Ds conduct, would V have died? A: Yes. She would have died anyway. D was NG of murder but G of attempted murder.

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Legal Causation: 'De Minimus' rule

This part of the test acknowledges that it is possible for there to be more than one act contributing to the end consequence, with these additional acts done by people other than D.  This rule states that D can still be guilty if their conduct was a "more than a minimal cause of the consequence." However Ds conduct need NOT be a substantial cause.

This test is deliberately vague so as to inject some flexibility into the process, thus allowing juries to come to a decision based on the merits of each individual case, However, this does allow for potential inconsistent application by juries around the country.

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R v Kimsey (1996)

The Ds act need not be the sole cause of even the main cause of Vs death. It is enough that the defendant's act contributed significantly to the result.

Ds conduct must be more than a minimal cause of the consequence but it need not be a substantial cause.

D and V were involved in a high speed car chase, apparently being pursued by an unknown driver. The prosecution argued that Ds driving had in part caused V to lose control of her car which then resulted in her death.

Both D and V were driving at speed, as was the 'unknown driver', and so all contributed to the crash, but this does not remove Ds responsibility for the accident.

The CA also confirmed that instead of using the latin phrase de minumus, it was acceptable to tell this jury it must be "more than a slight or trifling link."

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Acceleration principle

Ds act may be a considered a cause if it has accelerated Vs death in any way. It is no defence to say that the V was dying of a fatal disease anyway. Therefore, to bring about the 'sooner than natural' death of someone is unlawful.

Adams 1957

Dr Adams gave V, a terminally ill patient, an overdose of painkillers to hasten her death and was charged with murder. Devlin J; If her life was cut short by weeks or months or days it was just as much murder as if it had been cut short by years.

It was however said that although a doctor has no special defence in such circumstances "he is entitled to do all that is proper and necessary to relieve pain even if the measures he takes may incidentally shorten life." This is the doctrine of double effect. Providing pain relief is simply the primary purpose, but with a secondary knowledge that death is a likely result, a doctor may escape criminal liability. 

On these grounds Dr Adams was acquitted of murder.

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Thin Skull Rule

This rule states that a D must take the V as he finds him. This means that if V has something unusual about his physical or mental state which makes an injury more serious than it otherwise might be, D is liable for the more serious injury and cannot escape this by "blaming the V." D must take the V as they are, including any pre existing weaknesses. For example, D hits V over the head with a blow that would not normally kill, but V has an unusually thin skull making the blow fatal. D is liable for their death.

This principle has been extened to mental conditions and beliefs, as well as physical characteristics. Thus, D will not be exonerated (acquitted or guilty of a lesser charge) merely because the consequences of their actions are exacerbated by the weaknesses of the V.

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R v Blaue (1975)

D entered the home of an 18yr old woman and demanded sex. When she declined, he stabbed her four times, penetrating her lung which necessitated both a blood transfusion and surgery to save her. She refused this surgery as she was a JW and her religion forbade blood transfusions. Medical evidence showed she would not of died if she received the treatment.

The prosecution accpeted that Vs refusal was a cause of her death as her religious beliefs made the wound fatal; but D was still guilty because he had to take his victim as he found her. D was convicted of voluntary manslaughter (diminished responsibility)

CA refused to say that Vs refusal was unreasonable as this would in turn be labelling the religions and its teachings as unreasonable. Therefore, fault lies completely with D.

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Intervening Acts

Causation requires a direct link from Ds conduct to the consequence but in some cases, something else can happen AFTER Ds act or omission and, if this is SUFFICIENTLY SEPARATE from D's conduct it may break the chain of causation. It must be remembered that each outcome will be case dependent. Whilst general rules have developed, all cases are unique and so may produce different results.

Chain of causation can be broken by:

  • An act of a third party
  • Actions of the victim
  • An unforeseeable natural event

In order to break the chain so that D is not responsible for the final consequence, the intervening act must be SUFFICIENTLY INDEPENDENT of Ds conduct and SUFFICIENTLY SERIOUS. Therefore, where Ds conduct causes a foreseeable re/action by a 3rd party, D is likely to be held to have caused the consequence.

For instance when Pagett (1983) fired at the police, it was reasonably foreseeable that they would return fire, so their 3rd party actions did not break the chain.

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Actions of a 3rd party

The general rule is that medical treatment is VERY UNLIKELY to break the chain because D has caused V to require medical treatment in the first place. Only if treatment is so independent of Ds acts and "in itself so potent in causing death" R v Cheshire (1991) that Ds acts are insignificant. "in itself so potent in causing death" means that the same medical treatment, if performed on a 'healthy' person, would be fatal for them.

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R V Smith (1959)

Two soldiers had a fight in their barracks; V was stabbed in the lung. V was carried to a medical centre by other soldiers, but twice dropped off the stretcher on the way. At medical centre, V was not seen quickly enough as doctors did not realise the urgency of his injuries. V then received medical treatment that was inappropriate and made his injuries worse. V died about 2 hours later after the stabbing. The poor treatment probably affected his chances of recovery by as much as 75%. However, D was still guilty of murder.

It is only when the second cause of death is so overwhelming as to make the original wound merely part of the history can it be said that death does not flow from the wound.

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R v Cheshire (1991)

D shot V in the thigh and the stomach after a dispute in a fish and chip shop. V needed major surgery after developing breathing problemms and was given a tracheotomy. 6-8 weeks later, V suffered more breathing problems and died from rare complications left by the tracheotomy that went undiagnosed by doctors. By the time V died, the original wounds had virtually healed and was no longer life threatening. 

Although the CA held that even though treatment was short of the standard expected of a competent medical practitioner, D could still be criminally responsible for the death. The prosecution only had to prove the D's acts contributed to the death (de minimus). D's act need not be the sole cause or even the main cause of death, provided that his act contributed significantly to the death, D is responsible.

The CA made it clear that medical treatment, negligent or otherwise, can only break the chain of causation in RARE and UNUSUAL CASES, and it is not absolutely necessary for the original wound to be an 'operating' and 'substantial' cause at the time of the death.

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R v Jordan (1956)

This cases was identified as being rare and unusual~D stabbed V in the stomach. V was treated in hospital and wounds were healing well. About a week later, V was given an antibiotic but suffered an allergic reaction to it. Doctors stopped use of the drug, but the following day, another doctor ordered a large dose of the antibiotic and V died from the allergic reaction. CA found the actions of the second doctor to be palpably wrong. Death was attributable to the drug, not the stabbing. D was not guilty of murder.

If a normal dose of a drug is given as part of emergency treatment and doctors do not know V is allergic to it, the giving of the drug would NOT break the chain of causation. This would just be part of their emergency medical treatment.

Medical treatment has to be palpably wrong before it breaks the chain. Only in the most extraordinary and unusual cases will medical treatment break the chain. Incompetent or grossly abnormal treatment will not suffice if the original injury is still an operative cause of death. The demonstrates the legal profession PROTECTING the medical profession.

R v Mellor (1996)~ D attacked 71yr old man. V was taken to hospital with facial bruising and complained of chest pain, due to broken ribs. V died in hospital 2 days later as the hospital had failed to give him oxygen and he developed pneumonia but D was still guilty of murder.

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Life Support Machines

Switching off a life support machine by a doctor when it has been decided that V is brain dead does NOT break the chain of causation as technically, V has already legally died by this point and this was due to Ds act/omission, not the doctors.

R v Malcherek and Steel (1981)

D stabbed his wife. She was put on a life support machine and suffered two heart failures. After 10 days, tests revealed her brain to be dead and the machine was switched off. D was conviction of murder. CA rejected argument that switching off the machine broke the chain.

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Actions of the victim

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

R v Roberts 1971~ A girl jumped from a car in order to escape Ds sexual advances. The car was travelling around 30mph and the girl was injured from it. Although V technically caused her own injuries, she would not have jumped from the car "but for" Ds conduct. D was liable for her ABH injuries as her reaction was entirely foreseeable and reasonable.

R v Marjoram 2000~ D shouted abuse and kicked in the door of V's hostel room forcing his way in. V, out of fear, jumped/fell 47ft from the window suffering serious injuries. CA uphled D's conviction for inflicting GBH as it was reasonably foreseeable that V would fear violence against her and that the only escape route was the window.

Both reactions above can be said to be reasonable and so do NOT break the chain of causation. 

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R v Williams and Davis 1992

If Vs response is unreasonable, the chain will be broken and any injuries sustained will be the fault of V.

Ds picked up V, a hitch hiker. V jumped from Ds car and died caused by his head hitting the road. Car was travelling at about 30mph. Prosecution alleged there had been an attempt by Ds to steal Vs wallet. CA said that for the chain to remain intact and thus Ds responsible, Vs act has to be foreseeable and in proportion to the threat. 

CA quashed the conviction as there was an almost total lack of evidence as to the nature of the threat; the jury were invited to infer the gravity of the threat from Vs conduct alone, not any other evidence. How did the prosecution know Ds tried to steal Vs wallet- V couldn't have told them.

Therefore, it is necessary to consider the surrounding circumstance in deciding whether Vs conduct has broken the chain.

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Unforeseeable Natural Event

A natural event may be enough to break the chain of causation if it is sufficiently unpredictable and unforeseeable.

R v Hart 1986

D assaulted V and left him unconscious on the beach. The tide came in and V drowned. The coming in is a reasonably foreseeable natural event and so did NOT break the chain of causation.

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Transferred Malice

D will generally be guilty if he has both the AR and the MR of a crime, Sometimes, however, there may be an unexpected turn of events. EG D may intend to kill one person but make a mistake of identity and kill a different person instead. D may argue that while the AR relates to the actual victim, there was no MR as he intended to kill a completely different person.

Courts however are unwilling to find that D is not guilty in such a situation and have therefore developed the doctrine of transferred malice (transferred MR). Thus if D has MR for ABH and commits the AR of the offence, D will still be guilty even if he ends up hitting and injuring a different person.

However where D would have a DEFENCE had the crime been committed against the intended V, the defence is also transferred. For instance

  • A shot at B in self defence
  • A actually hit and killed C instead.
  • A's defence would apply still and should therefore lead to an acquittal if all elememts of self defence are present.
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Latimer 1886

D aimed a blow with his belt at a man (V1) in a pub because the man had attacked him. The belt bounced off the man and struck a woman (V2) in the face.

D was guilty of an assault against the woman (V2) even though he had not meant to hit her and she was his unexpected victim because his intention to wound the person he aimed at (v1) was transferred to the person he then injured (V2).

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Pembilton 1874

Where the MR is for a completely different type of offence, D may not be guilty. The 'malice' will not transfer.

D threw a stone intending it to hit the people he had been fighting with but the stone hit and broke a window. The intention to hit people could not be transferred to the window (criminal damge).

Additionally, MR can only be transferred from people to people, not people to animals.

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Attorney-General's Reference (No. 3 of 1994) 1997

D stabbed his pregnant girlfriend. She underwent an operation on a cut on the wall of her uterus but the stabbing had also damaged the foetus's abdomen. She recovered from the stab wound but gave birth prematurely 7 weeks later. The baby was born alive but died at the age of 4 months from complications.

D was charged with the murder of the baby but acquitted at trial as the judge directed that a foetus was not a reasonable creature in being (ie human being) and so D could not be guilty of any offence against the baby.

The HL agreed this was correct where the foetus died BEFORE being born (as it would never legally become a human being) but it stated obiter that "violence towards a foetus which results in harm suffered after the baby has been born alive can give rise to criminal responsibility."

As the baby was independent from the mother once born, the offence transferred to the baby and D was convicted of manslaughter (and of a non fatal offence against the mother.)

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General Malice

In some cases, D may not have a specific V in mind. Eg a terrorist who plants a bomb in a pub, intending to kill or injure anyone who happens to be in there. In this case, Ds MR is held to apply to whoever the actual V is.

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Coincidence of actus reus and mens rea

Coincidence of AR and MR is also known as the CONTEMPORANEITY. The general rule is that to be guilty of a crime, D must do the AR and have the MR at the same time. In som circumstances this could lead to some criminals being acquitted as technically these elements did not occur together, so the courts have developed ways of dealing with such cases.

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Series of Acts

In certain instances, the MR may come first and so here the courts apply the "series of acts" doctrine to manipulate the coincidence of AR and MR and thus secure a conviction. This can occur when D hits a victim and knocks him unconscious. D might assume that V is in fact dead rather than unconscious and try to dispose of the body. V is then actually killed during the disposal process.

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Thabo Meli v R (1954) South African case

Thabo and his friends attacked a man wanting to kill him (MR). They lured him into a shed, plied him with alcohol and hit him over the head. Believing he was dead they pushed his body over a low cliff. In fact he survived the attack but was simply unconscious. He then died of exposure to the elements whilst unconscious (AR).

Ds claimed that they had the required MR when they pushed him over the cliff but by the time the AR occured and V actually died, they no longer had MR as they had thought that he was already dead. The Privy Council held that, since it was all part of the same series of events, it was a single transaction and Ds were guilty of murder.

Arguably it's impossible to divide up the line of the AR and MR, but somewhere they meet. The PC said that Ds had the MR when the attack began and therefore at some point AR and MR coincided. This demonstrates that the court manipulated the definition of 'coincidence' to suit. They combined AR and MR in a series of acts as it would have been unjust to allow Ds to escapre liability on such a technicality.

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R v Church 1965

D had failed to sexually satisfy Sylvia. She slapped him; he punched her and knocked her unconscious. He tried, unsuccessfully for about 30 minutes to revive her. Thinking she was dead, he put her body in the river where she drowned. Conviction for manslaughter was upheld.

Although technically there was no meeting of AR and MR at the same time, the court used "series of acts" theory as again it would be unjust to allow D to escape liability.

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Continuing Act Theory

In situations where the AR comes first, the courts apply the "continuing act" doctrine, where the AR is stretched over time to meet the point where the D had the MR.

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Fagan 1986

Fagan was told by a police officer to park by the pavement. In doing so, Fagan drove onto the PO's foot but without realising he had done it. (AR but no MR) The PO pointed out what had happened to Fagan and asked him several times to move the car off his foot. D replied "f*ck you, you can wait" After this abusive reply, Fagan turned the ignition off (eventually he did move the car)

Fagan was convicted of assaulting a PO in the execution of his duty. D appealed arguing that at the time he drove on the foot (AR) he lacked the MR. When he then refused to move, he then had the MR but was no longer doing any ACT, he was 'omitting' to move, failing to do anything.

CA: Once D knew the car was on the officer's foot he had the required MR. As the AR(the car putting force on the foot) was still continuing, the 2 elements were then present together. The AR in this case was a continuing act. So long as D developed the MR at some time while it was continuing, he could be guilty.

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Le Brun 1991

Mr and Mrs Le Brun went to the pub for the evening. On their way home they had an argument which he punched her on the chin. He knocked her unconscious and thinking she was dead, dragged her along the pavement by the ankles the whole way home.

Mrs Le Brun died from her head injuries.

Guilty of manslaughter due to continuing act theory

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