Actus Reus: Elements of a criminal offence that are made up of prohibited conduct, results or circumstances.
Voluntariness
Conduct has to be as a result of the defendant's own action, of their own will. If an action is totally involuntary, this can be a defence and doesn’t count as conduct.
‘No act is punishable if it is done involuntarily… means an act which is done by the muscles without any control by the mind, such as a spasm, a reflex action or a convulsion; or an act done by a person who is not conscious of what he is doing, such as an act done whilst suffering from concussion or whilst sleep-walking’. [1]
‘Defence of automatism requires that there was a total control destruction of voluntary control on the defendant’s part. Impaired, reduced or partial control is not enough.’ [2]
Exceptions:
Only Parliament can enact offences that do not require an act to be committed voluntarily.
Causation
It is necessary to prove that the defendant was the cause of the conduct, or its result. Otherwise, people could be tried for offences that they played no part in.
A person must be both the factual and legal cause to be prosecuted.
Factual Causes (‘but for’ Test):
If it can be proved that ‘but for’ the defendants act, the event or result would not have occurred, then the defendant is the factual cause.
In White, D poisoned V’s drink. V died of a heart attack, unrelated to the poisoning. Because V would have died anyway, D’s action was not the factual cause of the death. D was only liable for attempted murder.
A case can have multiple different factual causes.
Legal Causes:
A factual cause becomes a legal cause when the chain of causation between action and result cannot be broken and the defendant’s actions were more than minimal. This relies on the mens rea of the case.
‘The accused’s acts need not be the sole cause or even the main cause of death, it being sufficient that his acts contributed significantly to that result.’ [3]
In Hughes, D was driving without full licence and insurance. Under the influence, V drove erratically and collided with D. Since the death would not have occurred if he was not driving, D convicted of causing death by driving unlicensed and uninsured. On appeal, it was determined that while he was a factual cause, he was not a legal cause.
Breaking Causation:
Abnormal Natural Events:
An unforeseeable event can breaks the chain of causation.
EG: an earthquake is unforeseeable, whereas the tide is foreseeable.
Third Party Interventions:
Actions of a ‘free, deliberate and informed’ third party may break causation. [4]
If the victim voluntarily chooses to act in a certain way which causes their death, causation is broken even if the defendant is the ‘but for’ cause. This relies on free will.
In Saunders and Archer, D gave poisoned apple to V1. V1 gave apple to V2, who died. Only D is liable as V1 was uninformed of the poison.
In Environment Agency v Empress Car Co, D was liable for oil spillage caused by 3rd party as the act of trespass could have been foreseen.
Medical Treatment / Errors:
Medical interventions are ‘deliberate and informed’, but medical staff have a duty of care, so their intervention is not ‘free’. The medical error must independently cause death to break causation for the defendant.
In Jordan, V was stabbed and taken to hospital. During his recovery he was given antibiotics that he was known to be allergic to. He would have likely recovered. V died as a result of medical negligence, not the stabbing, so D was only convicted of stabbing since the antibiotics broke the chain of causation.
In Smith, V was stabbed in a brawl and dropped by medical staff while on route to the hospital. V’s lung was pierced, and he died. Even though V had a high chance of recovery, the chain of causation was not broken as the cause of death resulted from the wound. D was held liable for murder. This distinguished it from Jordan. The court noted that this was still ‘thoroughly bad’ medical treatment.
Victim’s Reaction:
The chain of causation is only broken if the victim’s reaction to the defendant’s action was not foreseeable or reasonable.
In Roberts, D attempted to remove the coat of a passenger while driving in an attempt to sexually assault her. V jumped out of the moving car and was injured. It was held that D caused the injuries. The chain of causation was not broken as it was deemed that the victims escape ‘could reasonably have been foreseen’.
Thin Skull Rule:
Harming someone with a certain unforeseeable condition does not except you from conviction.
In Blaue, D stabbed V, piercing their lung. V refused blood transfusion on religious grounds and died. The Court of Appeal upheld the homicide conviction as refusal of treatment is reasonable.
‘It has long been the policy of the law that those who use violence on other people must take their victims as they find them.’
In Wallace, D poured acid on ex-boyfriend. V was significantly physically damaged in a medically untreatable way. V moved to Belgium and underwent voluntary euthanasia. D was prosecuted for murder, but as the Belgian doctors’ actions were ‘free, deliberate and informed’ and illegal in the UK, the chain of causation was broken.
When appealed by the Crown at the Court of Appeal, it was argued that the doctors were acting on their duty, so their conduct was not ‘free’. The case was put before a jury, who under direction, acquitted D of murder and convicted under assault.
Omissions
Omission: a failure to act.
Act Liability: freedom to choose to do whatever the law doesn’t prohibit.
Omissions Liability: freedom to choose to do only what the law requires us to. We have no general duty to prevent harm or aid the rescue of another person. Some argue that this is morally wrong, while others question the scope of liability if we could be held to account for omissions.
Act vs Omission:
In Fagan, F accidentally drove onto a policeman’s foot while following his directions. When he realised what he had done, F did not do anything, leaving the car on the V’s foot. F was convicted of assaulting a police officer. The court held that doing nothing was part of a ‘continuing act’, so F was guilty.
In Airdale NHS Trust v Bland, doctors sought to turn off life support as it was not in the interest of V. The House of Lords granted a declaration that this was acceptable as switching off the machine was not an act but an omission to continue treatment. The omission would not be homicide since the doctor’s duty of care dissolved once V’s best interest was not to be treated.
Judge-made / Common Law Exceptions to Omission Liability (When You have to Act):
Statutory Duties:
Some exceptions to omissions liability lie within statutes.
EG: refusing to provide breath sample to police officer, failure to report information about terrorism, failure to report money laundering etc.
References:
[1] Bratty v Attorney General of Northern Ireland [1963] AC 386 (Denning LJ) [2] Attorney General’s Reference (No2 of 1992) [1993] 3 WLR 982 (Taylor LJ) [3] R v Cheshire [1991] 1 WLR 844 [4] R v Kennedy No2 [2007] UKHL 38 [5] R v Dytham (1979) 69 Cr App R 387 [6] R v Pittwood (1902) TLR 37 [7] R v Miller [1983] UKHL 6, 2 AC 161 [8] R v Gibbins & Proctor (1918) 13 Cr App R 134 [9] R v Evans [2009] EWCA Crim 650
Cases Mentioned:
R v White [1910] 2 KB 124
R v Hughes [2013] UKSC 56
R v Saunders and Archer (1573) 2 Plowd 473
Environment Agency v Empress Car Co [1999] 2 AC 22
R v Jordan (1956) 40 Cr App R 152
R v Smith [1959] 2 QB 35, [1959] A.C.
R v Roberts (1971) EWCA Crim 4
R v Blaue [1975] 1 WLR 1411
R v Wallace [2018] EWCA Crim 690
Fagan v Commissioner of the Metropolitan Police [1969] 1 QB 439
Airedale National Health Service Trust v Bland [1993] AC 789
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