Ar Mr & Murder Notes

AR, MR & Murder

[Actus Reus]

1. Nature of actus reus

   1. Exact nature depends on the particular crime – 3 types

      1. Behavioral element

         1. Certain crimes only require the behavioral element – inchoate offences, drunk driving, etc. – “conduct crimes”

         2. Some offences such as murder might seem like a behaviour is not required, but in fact the law is not concerned with deaths per se, but death caused by people, corporations, etc.

      2. Result element

      3. Circumstance element

   2. **Are there common threads that link ARs of every crime?

   3. 3 Primary questions –

      1. Do all actus rei require an act?

      2. Is voluntariness necessary?

      3. If actus reus require proof that defendant caused a result, what does ‘cause’ mean?

2. The voluntary act

   1. Lord Denning – “the requirement that it should be a voluntary act is essential… in every criminal case”

   2. Why act and not thought alone?

      1. Those who fantasize about crime have not done anything sufficiently harmful to society

      2. Enormous difficulty of proof if an offence were directed towards the thought of D

      3. Limits government power and prevents authoritarianism

   3. What is the ‘voluntary act requirement’?

      1. Must obviously involve proof that D did something, but Donald Husak argued that it means more than that. An offence of “thinking evil thoughts while knitting” is still objectionable, since it is imposed to prevent thought and not the act. Hence, he argues that criminal liability must be imposed “for an act”

      2. Traditional view – acts as “willed voluntary movements”

         1. The only acts that exist are the simple acts

         2. Not just any bodily movements satisfy the act requirement – reflex movement of the leg for example is not an act. Mental cause thesis requires that such bodily movements be caused by a certain mental event or state – a volition

         3. Complex action description used in criminal law can be replaced by a description of some simple act

      3. Rebuttals to traditional view

         1. Defining an act as a willed voluntary movement produces an artificial view of the world – it would describe as “moving a hand to the right” both a person doing an aerobic exercise and a person punching another

         2. Does not take into account that people sometimes act on “automatic pilot” when engaging in routine acts – artificial to describe these as being willed. But it may be said that there is “unconscious will” which is controllable

         3. Traditional definition is too narrow – excludes some omissions which would quite properly be described as ‘acts’ – e.g. if it was said that if anyone objective to a proposal they should raise their hands – by not raising their hands those attending were supporting the motion even if they had not moved

      4. Alternatives to traditional view – “The control principle” by Simester, sometimes “agency principle”

         1. Principle that it is unjust to impose criminal liability for state of affairs over which D had no control

         2. Indispensable minimum is to establish that D is responsible for his AR, whether act or omission, explicit or implicit

            1. Hence, any consequences flowing from an epileptic seizure cannot constitute an offence

         3. Involuntariness is not a mere denial of intention or other MR, or even fault – it is much more profound – a claim that the movements of one’s body do not belong to one as a reasoning person

            1. Important distinction between a reasoning person and his/her body – e.g. when the doctor tests Simon’s reflexes by tapping on his knee, the swinging of the leg cannot be attributed to Simon. Hart – what is missing is a vital link between mind and body

   4. *Exceptions

      1. 3 types

         1. Sometimes, an omission gives rise to criminal liability – failure to act constitutes AR

         2. Under certain circumstances D can be liable for actions of another person

            1. Vicarious liability for employer

            2. Doctrine of innocent agency – A causes B (who is insane or a child) to cause harm, then A responsible for consequences of B’s act

         3. AR defined as a state of affairs or a set of circumstances that may not involve an actual act – e.g. possession of firearm [Dubious], or being an illegal immigrant (See Larsonneur)

      2. However, whether the above constitute true exceptions in part depends on how one defines an act

3. Omissions

   1. General rules

      1. No liability for omission – example of a person walking past a drowning child

      2. **D is only liable of a crime through omission when D is under a duty to act

         1. Exception is statutory crimes which in their definitions require an act to be committed – e.g. in Ahmad D charged with offence under Protection from Eviction Act 1977 requiring proof of defendant “doing acts…” not liable for failing to carry out alterations, which led to the premises becoming uninhabitable

   2. When D is under a duty

      1. Statutory duty – s6 of Road Traffic Act 1988 requiring a driver to provide a sample of breath when required to do so by a constable under certain circumstances commits a criminal offence

      2. Duties of law enforcement – police officers under a duty to assist members of the public in danger. Further, if they call upon a citizen to assist him or her, citizen under a duty to offer the assistance

      3. Contractual duty – person under contractual duty to help another may be criminally liable for failure to do so. In Pittwood, D employed as a gatekeeper on railway line – one day failed to perform his duties and did not close the gate, leading to an accident that resulted in the death of a man. Held liable for manslaughter

      4. Assumed duties – voluntary assumption of duty for another’s welfare gives rise to duty to care for him/her. Assumption of responsibility may be expressed or *implied (a person regularly offering assistance to another so that a mutual understanding of responsibility can be assumed)

      5. Duties between persons in relationships

         1. Duties in parent-child relationships arise automatically – s1 of Children and Young Persons Act 1933 – offence to wilfully neglect a child causing unnecessary suffering or injury to health. However, in Sheppard it was held that there was no duty owed by a parent to an 18 years old daughter – no...

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