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AR, MR & MURDER
1. Nature of actus reus a. Exact nature depends on the particular crime - 3 types i. 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.
ii. Result element iii. Circumstance element b. **Are there common threads that link ARs of every crime?
c. 3 Primary questions -
i. Do all actus rei require an act?
ii. Is voluntariness necessary?
iii. If actus reus require proof that defendant caused a result, what does 'cause' mean?
2. The voluntary act a. Lord Denning - "the requirement that it should be a voluntary act is essential… in every criminal case"
b. Why act and not thought alone?
i. Those who fantasize about crime have not done anything sufficiently harmful to society ii. Enormous difficulty of proof if an offence were directed towards the thought of D
iii. Limits government power and prevents authoritarianism c. What is the 'voluntary act requirement'?
i. 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"
ii. 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 iii. 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 iv. 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 a. 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 a. 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 d. *Exceptions i. 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 a. Vicarious liability for employer b. Doctrine of innocent agency - A causes B
(who is insane or a child) to cause harm,
then A responsible for consequences of
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)
ii. However, whether the above constitute true exceptions in part depends on how one defines an act
3. Omissions a. General rules i. No liability for omission - example of a person walking past a drowning child ii. **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 b. When D is under a duty i. 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 ii. 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 iii. 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 iv. 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)
v. 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 duties when child reaches maturity
2. Whether duty will be assumed in other relationships is less clear - generally presumed that spouses owe a duty to each other if in peril - Hood, Bonnyman. It may be duty depends on the nature of relationship between the parties - e.g. court reluctant to impose a duty between two separated spouses.
"Same house" requirement applies to duty towards parents and spouses (Ashworth).
3. Friendship is not enough - in Lewin a guy left his friend asleep and intoxicated in a car on a hot day, decision not to prosecute upheld in
High Court vi. Ownership or control of property - When someone owns a property and another (1) in his presence commits a crime (2) using that property, owner under a duty to seek to prevent the crime insofar as is reasonable vii. Duty from creation of the danger - When someone creates a dangerous situation he may be under a duty to prevent resulting harm - Miller
1. Expansion of this principle in Evans where CoA
held a young woman who supplied her sister with drugs owed her a DoC. When sister collapsed and woman failed to seek help, she was liable for manslaughter - contribution to creation of risk sufficient, holding D liable for death viii. Continuing act - In some cases that appear to involve omissions in fact involved a 'continuing act' -
Fagan c. What is required if there is a duty to act?
i. Simple answer - D must do what is reasonable.
1. Not required to risk one's life - if mother finds her child drowning in a shallow pool and des not act, guilty, whereas if the child was drowning in a tempestuous sea and the mother must place her own life in danger, then no
2. Reasonable thing may not be to rescue directly, but rather send help - in Singh
(Gurphal) a landlord and his agent were responsible for failing to bring in expert when tenets complained that their gas fires were not working, leading to death by CO
ii. Is D required to do what is reasonable for him/her, or that for an ordinary person? Not directly resolved by courts, but Stone & Dobinson suggests that the court would ignore D's disabilities and require D to act as ordinary people d. Distinguishing between omissions and acts i. Ashworth - there are many ambiguous cases in which the act-omission distinction should not be used as a cloak for avoiding the moral issue ii. Difficulties
1. Speck - child innocently placed her hand on a man's genital area and he did not move her hand - held to be an act by the man, but more naturally regarded as omission
2. Bland below e. Omissions & causation i. "but for" factual causation can be established, legal causation difficult ii. Whether an omission legally causes a result depends on the existence of duty - In Causation in the Law,
Hart argues whenever an event happens, there always is going to be a wide range of contributory factors - task of lawyers is to pick out the salient few - by looking at deviation from the norm. Duty is the legal recognition of the existence of the norm - and hence legal causation stems from it
1. Hence, Ashworth arguing that the causation question is merged into the duty question -
but this is not the complete picture, since causation further requires analysis of "but for" - e.g. D didn't call an ambulance, but if he had, V would have died anyway
4. Situational offences a. Guilty for being in a particular situation or state of affairs i. Drunk driving ii. Possessing drugs or a weapon b. Can be seen as compatible with voluntary act requirement as they at least involve a prior act - e.g. getting drunk and getting into a vehicle are acts c. However, controversy surrounds Larsonneur where D's involuntarily being returned to UK by Irish police was an offence
5. Alternatives to AR/MR
a. Orthodox way of analyzing criminal offence i. AR
iii. Defences which D can rely on b. However, this is not the only way i. Andrew Ashworth suggests -
1. Act and causation requirements
2. Absence of justification
3. Capacity and fault requirements
4. Excusatory defences ii. Glanville Williams says there's only AR & MR -
defences are included in AR
6. [AR stopped at pg 109]
LARSONNEUR (1933) 149 LT 542
1. Relevant legal themes a. Strict liability - no mens rea required, or indeed voluntariness
2. What happened a. The defendant, a French woman, was deported against her will, from Ireland to England, by the Irish authorities b. Upon her arrival she was immediately charged with the offence of 'being' an illegal alien. Her conviction was upheld despite the fact that she had not voluntarily come to England.
3. Reasoning a. Hewart, writing for the court, says the circumstances of her being brought back to England after her passport expired were immaterial. The reason she was there does not matter; she violated the act. (actus reus still found)
STONE AND DOBINSON  QB 354;  2 ALL ER 341
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