Criminal Chapter 3 slides

Slide 1 : Introduction


    Actus reus : The Conduct Element.

    Professor William Wilson & Odette Hutchinson

Slide 2 : Chapter 3 : learning outcomes

  • When you have completed this chapter, you should be able to:

    Explain what is meant by voluntary conduct

    Explain the distinction between an act and an omission

    Assess whether an offence is capable of being committed by omission

    Understand the notion of a duty to act and under what circumstances such a duty is likely to be imposed

    Identify the circumstances under which a duty to act might change or cease

    Recognise the circumstances element of the actus reus of an offence

    Be able to identify when a state of affairs might amount to the actus reus of an offence.

Slide 3 : Voluntariness

  • Criminal liability is found when the prosecution can prove that the defendant satisfies the definitional elements of the crime and that the D has no defence.

    The burden of proof rests with the prosecution. They must establish their case beyond a reasonable doubt.

    Definitions of offences are located in the common law and in Acts of Parliament (statutes).

    These Latin terms are potentially misleading!

Slide 4 : 3.1. voluntariness

  • Although the conduct element of the actus reus of an offence usually requires proof of a positive act on the part of the defendant, some offences can be committed by an omission to act.

    Whether the prohibited conduct is an act or an omission, such conduct must be voluntary conduct on the part of the defendant. Woolmington v DPP [1935] AC 462

    Bratty v Attorney General for Northern Ireland [1961] 3 All ER 523 HL

    "No act is punishable if it is done involuntarily: and an involuntary act in this context...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 sleepwalking" - Lord Denning

    It follows, therefore, that in order to attract criminal liability a defendant's conduct must be voluntary - that is, it must be a willed bodily movement (or lack of action where D is under a duty to act).

    The defendant is attacked by a swarm of bees whilst driving his car. He looses control of the car and runs into something causing damage.
    Where a defendant responds to something with a spontaneous reflex action over which they have no control it may be classed as a form of automatism.
    Hill v Baxter [1958] 1 Q.B. 277; [1958] 2 W.L.R. 76 QBD
    The defendant pushed another person E who then fell into another person V, then V fell and broke his leg. V later died of complications arising from the fracture.
    While E was the cause of the fracture, his actions were involuntary. It was D that was charged and convicted of manslaughter.
    Mitchell (1983) Q.B. 741; [1983] 2 W.L.R. 938 CA (Crim Div) Voluntariness

    The actus reus must be voluntary.

    In circumstances where the D has no control over what he is doing he is said to be acting in a state of automatism.

    If the D's conduct amounts to the AR of a criminal offence, but that conduct is involuntary, the defendant may avail himself of the defence of automatism.

    The defence of automatism is really a denial of AR on the basis that the D's actions or omissions are involuntary.

Slide 5 : Sane and insane automatism

  • Sane and insane automatism M’Naghten Rules (1843) “It must be clearly proved that, at the time of committing the act, the party accused was labouring under such a defect of reason, arising from disease of the mind, as to not know the nature and quality of the act he was doing, or, if he did know it, that he did not know he was doing what was wrong”. Two lines of defence: D was labouring under a defect of reason from disease of the mind such that either he did not know the nature and quality of his act or he did not know that what he was doing was wrong.

Slide 6 : Disposal

  • Disposal The insane automaton is entitled only to a qualified acquittal – not guilty by reason of insanity. s5 Criminal Pocedure (Insanity) Act 1964 as substituted by section 24 Domestic Violence, Crime and Victims Act 2004: ”(1) Where…a special verdict is returned that the accused is not guilty by reason of insanity…  (2) The court shall make in respect of the accused – a hospital order (with or without a restriction order) a supervision order; an order for his absolute discharge. (3) Where— (a) the offence to which the special verdict or the findings relate is an offence the sentence for which is fixed by law and (b) the court have power to make a hospital order, the court shall make a hospital order with a restriction order…”

Slide 7 : Insanity: a legal concept

  • Insanity: a legal concept s1(1) of the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991: D may not be acquitted by reason of insanity except on the evidence of at least 2 doctors The question whether a condition amounts to insanity is a question of law Insanity in a legal context bears upon responsibility and social protection

Slide 8 : Omissions

  • The conduct element of the actus reus usually requires proof of a positive act on the part of the defendant.

    There is no general liability for failure to act under the common law of England and Wales.

    Although some jurisdictions have adopted a general principle of liability for failure to act - e.g. France

    Policy reasons: Against

    1. Imposing liability for an offence of failing to act would be extremely hard to enforce.
    2. Establishing causation would be very difficult.
    3. An offence of failing to act would conflict with the principle of autonomy.

Slide 9 : Sullivan (1983)

  • Sullivan (1983) Sullivan (1983) “It matters not whether the aetiology of the impairment is organic, as in epilepsy, or functional, or whether the impairment itself is permanent or is transient and intermittent… The purpose of the legislation relating to the defence of insanity, ever since its origin, has been to protect society against recurrence of the dangerous conduct… …It is natural to feel reluctant to attach the label of insanity to a sufferer from psychomotor epilepsy... But the label is contained in the current statute; it has appeared in the statute's predecessors. It does not lie within the power of the courts to alter it. Only Parliament can do that.“ per Lord Diplock:

Slide 10 : The internal / external distinction

  • The internal / external distinction Quick (1973) "(A disease of the mind) is a malfunctioning of the mind caused by disease. A malfunctioning of the mind of transitory effect caused by the application to the body of such external factors as violence, drugs, including anaesthetics, alcohol and hypnotic influences cannot fairly be said to be due to disease.” Per Lawton LJ Hypoglycaemia Quick’s condition was not caused by his diabetes but was due to the injections of insulin

Slide 11 : Imposition of liability for a failure to act

Slide 12 : Imposition of liability for a failure to act (2)

  • There are circumstances where the law does impose on a person a duty to act.

    The criminal law will prohibit certain omissions provided that the following circumstances are met:

    1. The offence in question is capable of being committed by omission, and
    2. The defendant is under a legal duty to act either at common law or under a statute.

    Sometimes a statute will specifically state that the actus reus of an offence is committed by omission.

    s.1(1) of the Children and Young Person Act 1933
    It is an offence to willfully neglect a child
    s.84 Companies Act 2006
    [W]here a company fails without reasonable excuse, to comply with any specified requirement of regulationsan offence is committed.
    s.170(4) of the Road Traffic Act 1988
    Imposes a duty upon a driver involved in an accident to report it to the police or provide his/her details to the other parties involved.

Slide 13 : Stress

  • Stress Hennessy (1989) In our judgment, stress, anxiety and depression can no doubt be the result of the operation of external factors, but they are not, it seems to us, in themselves separately or together external factors of the kind capable in law of causing or contributing to a state of automatism… …They constitute a state of mind which is prone to recur. They lack the feature of novelty or accident, which is the basis of the distinction drawn by Lord Diplock in R v Sullivan.” per Lord Lane R v T (1990) See activity 3.2 p25

Slide 14 : Is the offence capable of being committed by an omission?

  • The rule of thumb is that any offence can be committed by omission, unless the definition of the offence excludes this possibility.

    Offences which have been interpreted by the courts as capable of being committed by omission include murder Gibbins and Proctor [1918] and gross negligence manslaughter.

    Offences which cannot be committed include unlawful act manslaughter: Lowe [1973] QB 702 and assault.

Slide 15 : Was the defendant under a duty to act?

  • Once it has been established that the offence is capable of being committed by omission, the court must determine whether the defendant was under a duty to act.

    A duty, where it exists, is not an onerous one. A person is not expected to put his or her own life at risk.

    The question that will be considered by the courts is whether a defendant who was under a duty to act has discharged that duty to a reasonable standard. What is reasonable will depend upon the circumstances in each case.

    There is a difference, between what we might term 'moral' duty to act and a 'legal' duty to act.

    Under what circumstances will the common law impose a duty to act?

Slide 16 : Burden of proof

  • Burden of proof Bratty If D pleads automatism then must raise evidence. Burden then on P to prove beyond reasonable doubt either: 1 that D did not lack control or 2 that the automatism was caused by a disease of the mind or 3 that the automatism was self induced If D pleads insanity then he must prove the ingredients of the defence on the balance of probabilities. Study pack: Extract from ‘Insanity, automatism, and the burden of proof on the accused’ Timothy H. Jones

Slide 17 : Duty to act under the common law

  • In addition to those offences where a duty to act is expressed in the definition, there are situations where it has been established by the courts that a defendant will be under a duty to act.

Slide 18 : A duty to act under the common law

  • You should now complete Activity 3.3 on page 25 of the subject guide.

    Make sure that you complete the activities that you are directed to: They are an important part of this programme and should not be skipped! You will find feedback on the activities on the VLE.

Slide 19 : 3.4 duty to act under the common law

  • Situation
    A contractual duty to act
    Pittwood (1902)19 TLR 37
    Familial relationship
    Gibbins & Proctor (1918) 13 Cr App R 134
    Assumption of responsibility
    Stone & Dobbinson [1977] 2 All ER 241
    Creation of a dangerous situation
    Miller [1983] 1 All ER 978
    Public office
    Dytham 919790 69 Cr App 387

Slide 20 : When does a duty cease to exist?

  • The courts have struggled to define exactly when a duty to act may expire.

    It is particularly hard in cases where the defendant has voluntarily assumed responsibility for the victim or where there is a special relationship between the defendant and the victim.

Slide 21 : 3.5. distinguishing between act and omission

  • Although the distinction between an act and an omission is generally self-evident – e.g. doing nothing while somebody drowns as opposed to holding that person’s head under the water so that they drown – the House of Lords in Airdale NHS Trust v Bland [1993] ruled the removal of a nasogastric tube was an omission rather than an act.

Slide 22 : Distinguishing between an act and an omission

  • The problems associated with distinguishing between acts and omissions are more likely to arise in the area of medical treatment than under any other circumstances.

    Another issue which has fallen to be considered by the courts is under what circumstances, if any, can an existing duty to act be said to have ceased?

    You should now complete Activity 3.5 on page 27 of the study guide.

Slide 23 : New categories of duty

  • The list of situations recognised by the courts giving rise to a duty to act is not a closed one.

    • Khan and Khan [1998] 2 Crim LR 830
    • Singh (Gurphal) [1999]
    • Willoughby [2004]
    • R v Evans (Gemma) [2009] EWCA Crim

    “For the purposes of gross negligence manslaughter, when a person had created or contributed to the creation of a state of affairs that he knew, or ought reasonably to have known, had become life threatening then, normally, a duty to act by taking reasonable steps to save the other’s life would arise”. 3.6. New categories of duty

Slide 24 : Reform

  • Andrew Ashworth, ‘The Scope of Criminal Liability for Omissions (1989) 105 LQR 424.

Slide 25 : The circumstances element of actus reus

  • Many crimes require the existence of a specified circumstance or specified circumstances as part of the actus reus.

    Occasionally the actus reus of an offence is the state of affairs rather than the conduct of the defendant. These offences are called ‘state of affairs’ or ‘situational’ crimes and, arguably, can result in strange and unfair results.

    Larsonneur (1933) 24 Cr App R 74 and

    Winzar v Chief Constable of Kent (1983)

Slide 26 : Further reading

  • Alexander, L. ‘Criminal Liability for Omissions’ in Shute and Simester (eds) Criminal Law Theory: Doctrine of the General Part, Oxford: OUP (2001), 121.

    Green, S.P., “Theft by Omission’ (May 27, 2009). Essays in Criminal Law in Honour of Sir Gerald Gordon, Edinburgh: Edinburgh University Press, 2010.

    Keown, J., ‘Restoring the Sanctity of Life’ [2006] LS 109.

    Price, D., ‘My View of the Sanctity of Life’ [2007] LS 549

    Simester, A.P., ‘why Omissions are Special’ (1995) 1 Legal Theory 311.

    Smith, J.C., ‘Liability for Omissions in the Criminal Law’[1984] Legal S 6.

    Westen, P., ‘Offences and Defences Again’ (2008), Oxford Journal of Legal Studies 28 Number 3, 563.

    Williams, G., ‘Gross Negligence Manslaughter and the Duty of Care in ‘Drugs’ Cases: R v Evans [2009] Crim LR 631.

    Wilson, W., Murder by Omission: Some Observations on a Mismatch between the General and Special Parts’ (2010) New Crim LR 1. Further reading

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