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Criminal Law - Actus Reus
- Module
- Criminal Law (LAW5005)
- Institution
- Kings College London (KCL)
Comprehensive notes on Criminal Law in the UK, on actus reus.
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CRIMINAL LAWREVISION NOTES
PART A: THE CONDUCT/ACTUS REUS ELEMENT
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A) INTRODUCTION
Criminal liability derives from principles governing criminalisation and punishment.
Criminalisation: the state needs the authority to criminalise our behaviour (paternalism). The
authority is limited to when the prohibited conduct is harmful/ threatens to harm others (the harm
principle). It should not criminalise just because the public disapprove of that conduct. – J.S. Mill
Criminalisation is a matter of last resort – we only criminalise if there is nothing else we can do; no
less harmful means of changing harmful behaviour (e.g. education).
if you’re doing something behind closed doors in a non-public area, e.g. smoking, the state cannot
intervene/ does not have anything to do with your acts.
Punishment and desert
The two ruling theories of punishment: utilitarianism/ reductionism and retributivism.
1. Reductionism: what is applied in situations like traffic accidents; more to do with paternalism.
2. Retribution: going beyond reductionism; you are harming others.
What makes punishment deserved? The defendant must be at fault; he must be wrongfully
harming/ threatening wrongful harm to, not only harming, others’ interests.
Wrongfully harming: there needs to be an element of intention to harm; otherwise, it would just be
an accident.
Criminal equation
The ‘criminal equation’ tells us when punishment can happen. Punishment can only happen when
we have a criminal act that coincides with a guilty mind – “actus non facit reum nisi mens sit rea.”
Criminal liability requires both actus reus and mens rea, at the same time.
There is a third element in criminal liability, which is the absence of any defence.
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B) ACTUS REUS
What is AR?
The actus reus of any crime constitutes the package of behaviour which forms the substance of
a criminal prohibition.
, CRIMINAL LAW
REVISION NOTES
All crimes require proof of some prohibited voluntary conduct.
Robinson v California [1962] (USA): This was a case of drug addiction. The issue was the
question of whether the addiction itself could be a criminal offence. The court said no; it would be
unconstitutional to criminalise drug addiction. It can be seen as a disease or a condition, but it cannot
actually be seen as a criminal act. You’re not committing a drug addiction, but you are being a drug
addiction.
The actus reus itself comprises of three elements:
1. Conduct (always needed) – you need to do something, e.g. in regards to killing someone, the
conduct would be driving a knife into that person. Conduct is sometimes enough; no other
elements may be needed.
2. Circumstance – you need a particular situation/ way in which something is done.
3. Consequence
EXAMPLES:
what do we need in the actus reus for murder? We need the conduct/ act, e.g. driving a knife
into someone; the consequence, e.g. the death of the victim; we do not need a circumstance.
(conduct & consequence)
driving without a licence. We need the conduct, which is the act of driving; we need the
circumstance, which is not having a licence to drive; but we do not need a consequence,
because it is already dangerous enough. (conduct & circumstance)
criminal damage. We need the conduct, which is damaging property, e.g. throwing a football
into the house’s window; we need a circumstance, which would be that the property has to
belong to someone else (one is free to damage their own property); and we need a
consequence, which is damage (it does not have to be complete destruction/ loss of property).
(conduct, circumstance & consequence)
Usually, the prohibited conduct will involve an act. If there is no act, there will be no liability (the
exception to this: omissions, i.e. you may still be liable in the absence of an act – remember, you
cannot commit assault by omission, it was only accepted in Fagan because it was a continuing act).
Thus, it is key for the prosecution to identify a wrongful act.
Dunn (2015): This case concerned an indecent assault, where the defendant made a young girl
commit sexual acts. The court said the actus reus required assault and thus, an act. Here, the
defendant did not act; the girl did. This show us that we need to be careful when charging people – they
should have originally charged the defendant with the offence of causing a child to engage in sexual
activity.
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PART B: EXCEPTIONS TO THE ‘ACT’ REQUIREMENT
___________________________________________________________________________________________________
A) INTRODUCTION
Sometimes, liability can occur without D having acted:
® Situational Liability
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