Actus Reus — Omissions And Causation Notes

TOPIC 1 —CRIMINAL LAW —ACTUS REUS: OMISSIONS AND CAUSATION

AR: the conduct element of a crime; what the D must have done / failed to do.

MR: mental element — intention, recklessness, or negligence.

ACTUS REUS

Voluntary act requirement: in every criminal case there should be a voluntary act —if the D is not acting voluntarily the D will be said to be an automaton and not guilty of an offence because the AR and MR will not have been proved.

The general principle that a crime must involve an act of the defendant is subject to two important caveats:

1. it is not really clear what is meant by ‘act’ here

2. There are a number of crimes which seem to be exceptions to the rule, including:

   1. Omissions can give rise to criminal liability —in such cases the failure to act can constitute the AR of the crime.

   2. The AR of an offence is defined as a state of affairs that may not involve an act (just circumstances) e.g. possession of a firearm.

   3. D can, in some circumstances, be responsible for the acts of another person.

NB: whether the above are true exceptions turns on how we define ‘act’.

BASIC PRINCIPLES

The Dadson principle: a defendant can't rely on justifying circumstances of his actions of which he isn’t aware. This demonstrates that justifications aren’t just measured objectively (i.e. were the actions reasonable?) but rather has subjective elements (requires that D was aware of and acted due to the justificatory reasons).

Dadson [1850]

Facts: D, a constable, shot V, wounding him when he was running away from a copse. Unknown to D, V had just committed a felony in the copse (and therefore it would have been lawful to shoot him). D was convicted of having feloniously wounded V.

Held: D was convicted of having feloniously wounded V. Yes. The prisoner was not justified in firing at Waters, because the fact that Waters was committing a felony was not known to the prisoner at the time.

Deller [1952]

Facts: D sold a car, stating that it was free of encumbrances. In fact, he thought the car was encumbered, because he had earlier mortgaged it to a finance company. Deller was charged with obtaining the proceeds of a car sale under false pretences. As it happened however, the earlier mortgage was invalid and hence the car was unencumbered — by chance his pretence was not false.

Hilbery J: D could therefore not be convicted as he had broken no law. Nullum crimen sine lege: no one should be convicted of a crime unless what is done is in law a crime.

The above two cases illustrate the distinction between an absent element defence (Deller) (i.e. no AR) and an affirmative defence (Dadson). In the latter case, the elements of the crime (AR and MR are made out) but the defence operates to make the conduct not criminal; in the former, there is no crime at all because the AR is not established.

No voluntary act

Situational offences, where the D is guilty for ‘being in a particular situation or state of affairs’ (e.g. being drunk in charge of a vehicle, or possessing a drug or offensive weapon) are compatible with the voluntary act requirement as they involve a prior act —e.g. getting drunk.

Larsonneur [1933]

Facts: French woman deported from UK and told not to return. She went to Ireland. Ireland deported her back to England under police escort, and then handed over to UK authorities. Charged with being an alien whose leave to land had been refused.

Held: her conviction should be upheld.

Comment: There is nothing intrinsically wrong in criminalising states of affairs, so long as the class of potential defendants can be clearly identified. However, there should be a further requirement – that the defendant should be able to do something about it. It is the failure of English law to observe this in Larsonneur that makes the decision so objectionable.

OMISSIONS

There is no general omissions liability in English law —a defendant is only guilty of a crime when failing to act where he or she is under a duty to act.

1. crimes that cannot be committed by omissions

There are certain crimes that cannot be committed by omissions —e.g. where the relevant statute stipulates that a positive action is required. Under the Protection from Eviction Act 1977, for example, proof is required of the D “doing acts calculated to interfere with the victim’s peace and comfort” —under this act therefore if a landlord fails to carry out alterations on the V’s house (and this leaves the premises uninhabitable) the failure to do so is not a crime (see Ahmad [1986]).

2. When the D is under a duty to act

The D can be placed under a duty to act in a number of ways:

1. Statutory duty: e.g. s.6 of the Road Traffic Act 1988 states that it’s an offence to fail to provide a breath sample when requested.

2. Duties of law enforcement: police officers are under a duty to assist members of the public in danger. Further, if a police officer calls on a citizen to assist him to restore the peace, the citizen is under a duty to offer assistance.

3. Contractual duty: Pittwood [1902]: D was employed as a gatekeeper on a railway line and failed to perform his duty of shutting the gate to a road over the line —as a result a cart hit the man was killed. D was liable for manslaughter because he was required under his contract to ensure the gate was shut.

4. Assumed duties: people who voluntarily assume responsibility for another’s welfare will be under a duty to care for them. This may be express or implied. Some arise automatically (e.g. a parent is under a duty to care for a child —so the failure to feed a child leading to starvation, although an omission, will still lead to an offence). The leading case here is as follows:

Stone and Dobinson [1977]

Facts: the Ds were Stone (below average intelligence, partially deaf, almost blind), and Dobinson (described by court as ‘ineffectual and inadequate’). Stone’s sister, Fanny, came to live with them (and their disabled son, Cyril). F suffered from anorexia nervosa; often denied herself food, and stayed in her room for days at a...

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