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LAWS08142 -ACTUS REUS- UPDATED 2024
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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.:
(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.