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LAWS08142 ACTUS REUS, Study notes of Law

LAWS08142 -ACTUS REUS- UPDATED 2024

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ACTUS REUS
We have seen that criminal offences typically contain both actus reus and mens rea elements.
In the next two lectures, we turn to look in more detail at the actus reus: the conduct element
in crimes. This will include a discussion of the role of causation in criminal law.
Reading:
Gane, Stoddart and Chalmers (4th edn), chs 2 and 4 OR
Jones and Christie (5th edn), ch 3 OR
Ferguson and McDiarmid, pp 125-139 and pp 161-173
1. What is an Actus Reus?
Although criminal law does not prohibit mere thoughts, there is otherwise a wide range of
types of actus reus. Most crimes can be placed into the following categories:
Result crimes (causing a prohibited result)
Conduct crimes (acting in a prohibited manner / in specified circumstances)
States of affairs
Omissions
It can be seen from this that, in practice, most instances of criminal liability require an act.
This is because we cannot claim that an accused has caused something or done something
unless there is some conduct that can be attributed to him/her. This raises questions about
what constitutes an act for the purposes of the criminal law.
A. Voluntariness
Criminal acts must be voluntary: they must be chosen and consciously controlled by the
accused. Correspondingly, there should be no criminal liability for involuntary conduct. In
practice, criminal law operates with an implicit presumption of voluntariness. There are a
number of ways in which an accused might attempt to deny voluntariness, which the law
treats with varying degrees of sympathy.
(i) Automatism
An action is 'automatic' when the accused exercises no conscious control over it: for example,
if he/she is sleepwalking. Automatism functions as a defence, and it overlaps considerably
with insanity and intoxication. The current rules governing the defence are set out in Ross v
HM Adv 1991 SCCR 823. These issues will be considered in detail in later lectures.
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ACTUS REUS

We have seen that criminal offences typically contain both actus reus and mens rea elements. In the next two lectures, we turn to look in more detail at the actus reus : the conduct element in crimes. This will include a discussion of the role of causation in criminal law. Reading: Gane, Stoddart and Chalmers (4th^ edn), chs 2 and 4 OR Jones and Christie (5th^ edn), ch 3 OR Ferguson and McDiarmid, pp 125-139 and pp 161-

1. What is an Actus Reus****? Although criminal law does not prohibit mere thoughts, there is otherwise a wide range of types of actus reus. Most crimes can be placed into the following categories:  Result crimes (causing a prohibited result)  Conduct crimes (acting in a prohibited manner / in specified circumstances)  States of affairs  Omissions It can be seen from this that, in practice, most instances of criminal liability require an act. This is because we cannot claim that an accused has caused something or done something unless there is some conduct that can be attributed to him/her. This raises questions about what constitutes an act for the purposes of the criminal law. A. Voluntariness Criminal acts must be voluntary: they must be chosen and consciously controlled by the accused. Correspondingly, there should be no criminal liability for involuntary conduct. In practice, criminal law operates with an implicit presumption of voluntariness. There are a number of ways in which an accused might attempt to deny voluntariness, which the law treats with varying degrees of sympathy. (i) Automatism An action is 'automatic' when the accused exercises no conscious control over it: for example, if he/she is sleepwalking. Automatism functions as a defence, and it overlaps considerably with insanity and intoxication. The current rules governing the defence are set out in Ross v HM Adv 1991 SCCR 823. These issues will be considered in detail in later lectures. 1

(ii) 'Reflex' actions Hill v Baxter [1958] 1 QB 277 Ryan v The Queen (1967) 121 CLR (Aus) 205 (iii) Innocent agents Hugh Mitchell (1856) 2 Irv 488 Hogg v MacPherson 1928 JC 15 (iv) Events beyond the accused's control R v Larsonneur (1933) 24 Cr App R 774 Kilbride v Lake [1962] NZLR 590 Winzar v Chief Constable of Kent Times, May 28, 1983 B. Continuing acts What are the 'boundaries' of an act for the purposes of criminal liability? How far forward in time should an accused's acts be deemed to extend? Thabo Meli v R [1954] 1 All ER 373 Fagan v MPC [1969] 1 QB 439

2. Omissions As a default rule, there is no criminal liability for omissions – i.e. for failing to act or failing to prevent harm. Scotland follows the general trend in common law jurisdictions of refusing to create positive duties in criminal law, such as duties of easy rescue. Omissions liability only arises where the following particular kinds of duty exist: A. Duties arising from a relationship R v Gibbins and Proctor (1918) 13 Cr App R 134 R v Hood [2003] EWCA Crim 2772 Bone v HMA 2005 SCCR 829 Children and Young Persons (Scotland) Act 1937, s. 12 B. Assumption of responsibility R v Instan [1893] 1 QB 450 R v Stone and Dobinson [1977] 1 QB 354 C. Creation of a dangerous situation 2

At least as far as the law of causation is concerned, one must take one's victims as one finds them. This rule applies to physical sensitivity and vulnerability, but also to victims' character and beliefs. See e.g.:

  • Bird v HM Adv 1952 JC 23
  • R v Blaue [1975] 3 All ER 446 C. Breaks in legal causation: novus actus interveniens The 'chain of causation' between an accused's acts and an ultimate harm is deemed to be broken by certain kinds of acts and events. This phenomenon is known as novus actus interveniens or intervening cause. (i) Intervening acts of the victim May A be held liable for harming C where A's acts cause C to harm himself/herself? Patrick Slaven (1885) 5 Coup 694 R v Roberts (1972) 56 Cr App R 95 R v Williams and Davis [1992] 1 WLR 380 R v Dear [1996] Crim LR 595 R v Dhaliwal [2006] EWCA Crim 1139 McDonald v HM Adv 2007 SCCR 10 What about cases where A supplies drugs to C and V harms himself/herself by using the drugs?
  • Khaliq v HM Adv 1984 JC 23 Ulhaq v HM Adv 1991 SLT 614
  • Lord Advocate's Reference (No 1 of 1994) 1995 SLT 248 HM Adv v C 2007 SLT 963
  • MacAngus v HM Adv 2009 SLT 137 Contrast these cases with the English position: R v Kennedy [2008] 1 AC 269 (ii) Intervening acts of third parties The general rule in the common law world is that the free and voluntary acts of third parties always break a chain of causation. But when is an intervening act 'free and voluntary'? R v Pagett (1983) 76 Cr App R 279 4

(Note that even if a third party breaks the chain of causation, the original actor may yet be criminally liable. See further the lectures on inchoate offences and art and part guilt.) (iii) Medical treatment cases Cases involving medical treatment have historically been dealt with separately from other third party cases. Generally, courts will not find that negligent medical treatment breaks a causal chain. The only exception is where the treatment is so negligent that the earlier action ceases to be an operative and substantial cause. See e.g.

  • R v Jordan (1956) 40 Cr App R 152 R v Smith [1959] 2 All ER 193 R v Malcherek; R v Steel [1981] 1 WLR 690
  • R v Cheshire [1991] 3 All ER 670 Compare cases of withdrawing or withholding treatment: Finlayson v HM Adv 1979 JC 33 Airedale NHS Trust v Bland [1993] AC 789 Law Hospital NHS Trust v Lord Advocate 1996 SC 301 (iv) Intervening natural events Although these cases rarely come before the courts, it is agreed that freak natural events can break a chain of causation. Events must be sufficiently unforeseeable to render the accused's actions a mere background condition to the ultimate harm. A textbook example is the victim being struck by lightning. 5