CRIMINAL LAW
Actus Reus
Theory
Actus reus (AR) is the behavioural element of crime, and can constitute conduct, circumstances or
consequences, or any combination of those. The law on this is summarised below, but first some
theoretical notes:
On omissions liability
● Commentary in this area is dominated by the act-omissions debate. Though the very nature
of this distinction has come under fire (Horder), some commentators have sought to draw the
line between when there is liability in the second instance. It has been suggested that we
distinguish between ‘abnormal’ and ‘normal’ omissions (Hart and Honore).
● Those in favour of punishing omissions have suggested various ways of doing so. One is that
we apply considerations of seriousness of harm, secrecy of context, professional
responsibility, proximity, and capacity (Ashworth); another is that we ought to criminalise them
broadly so as to encourage social responsibility. The narrow nature of the current law is also
often criticised, as its case-by-case determination is open to judicial or jury bias (Cobb;
Norrie).
● Those against punishing omissions raise issues of a lack of ‘but for’ causation and difficulties
with responsibility attribution. Some also point to the issues with ‘Bad Samaritan’ laws that
attempt to incur this kind of liability: moralism, high risk of punishing innocents, jury bias,
mens rea difficulties, rubbery drafting, difficulties with ascertaining specific singular
defendants and limited practical benefits (Dressler).
On causation
● It has been argued that practically the criminal law might function better if it centralised
endangerment, rather than harm (Crisp, Feinberg, Kadish, Parker, Ashworth). One
justification for this is that the behaviour of D that leads up to them hurting V tells us as much
as anything that comes afterwards (Alexander and Kessler-Ferzan).
● It has been argued that the fact no existing legal system works this way is good evidence that
such proposals are completely impractical (Robinson). It has also been suggested that if we
diminish the moral distinction between an intent and its result, “there is nothing left for us as
moral agents” (Gardner), and that such an idea does not take luck as a product of
consequences sufficiently seriously (Herring, Edwards and Simester).
● For these reasons, most commentators are in favour of centralising consequences.
Justifications for this vary from the inherent moral value judgment that our emotional reactions
to differing consequences provides (Williams and Moore) and the idea that considering
consequences allows us to more clearly identify justifications (Gardner) to a desire to fully
consider the harm done (Alexander and Kessler-Ferzan) and thus the humanity (Honore) for
the victim. It is also noted by various commentators that responsibility attribution is based on
an idea of moral turpitude that does not function without consequences (Cane; Morse;
Edwards and Simester).
,Attempts at bringing coherency to the law on causation are summarised below:
● Judges attribute causation as they see fit upon a common sense reading of the fact pattern
before them (Fumerton; Kress).
● Judges should attribute causation via the ‘but for’ test only, and its over-inclusivity can be
remedied by mens rea requirements (The ‘Causal Minimalist’ Approach).
● Judges should attribute ‘cause’ status only to abnormal conditions (Hart and Honore). This is
criticised for being vague and discretionary (Moore; Cane, and others).
● Judges should hold defendants to have caused those consequences of their actions that are
‘reasonably foreseeable’ (Yeo and Kimchuk).
● Judges should hold defendants to have caused those consequences of their actions that are
‘natural’ (Schute), or to have ‘proximate result responsibility’ (Moore).
● Judges should take into account a variety of normative questions like what the parties should
have done, and what standards of behaviour are reasonable to expect (Tadros).
● Judges should take into account the socio-political, economic, psychological and other
contextual factors that might have led to the defendant’s actions, and the law generally should
be narrowed to reflect this (Norrie). This is called the ‘narrowness of causation’ approach.
On voluntary acts
The ‘voluntary act’ requirement – the idea that we can only prosecute D for their actions, not for their
thoughts – is traditionally defined by the idea that actions are ‘willed bodily movements’. There are
four key theses here (Moore):
1) The identity thesis – acts are the simplest movements one knows how to do in order to
achieve a specific end; if their purpose is more remote than the most basic achievable end
they are irrelevant.
2) The exclusivity thesis – acts are only simple, they cannot be complex: “complex” actions are
merely composites of basic acts.
3) The volition thesis – acts are only considered when they have a mental requirement of will,
desire, intention or choice.
4) The equivalence thesis – descriptions of complex acts when given in statutes are the same as
descriptions of their composite parts (simple acts involved in the crime).
This set of theses is very narrow and under-inclusive. Two alternatives are:
1) The control principle – D can only be criminally liable for states of affairs they have control
over.
2) The agency principle – D can only be criminally liable for acts that were an expression of their
free will, or that they did having forfeited it (for example by getting drunk).
That’s it for theory. Now for the law.
Law
Causation
The key test for legal causation is ‘Can the defendant’s acts fairly be said to have made a
significant contribution to the eventual harm?’ (Wallace). “Significant contribution” means ‘a
more than minimal or de minimis cause’ (Hughes).
,Liability under this test is often narrowed by the use of factual causation, which asks “But for
D’s act, would the relevant result have occurred?”
Breaking the chain of causation
If A and B inflict injuries upon V separately, they may be held concurrently liable for the death,
or, if B’s act was of ‘negligible effect’, only A may be liable. It could also be that neither injury
caused V’s death, in which case neither is liable for it, or that B’s act was a novus actus
interveniens.
A novus actus interveniens (‘new intervening act’) is a “free, voluntary, and informed act” of a
third-party that renders the original act no longer a significant cause, and the original actor no
longer liable. Things that are not a novus actus include (Wallace):
1) Acting out of necessity to save life or limb.
2) Acting in line with legal obligation.
3) Acting reasonably in response to moral obligation (e.g., administering first aid).
4) Acting without knowledge of circumstances.
5) Acting when not unfettered.
Medical treatment does not usually break the chain of causation but it will if it is ‘abnormal,
palpably wrong, or grossly negligent’ (Jordan). It must be really exceptionally these things, as
demonstrated by the fact this is almost never held (Cheshire; Malcherek).
The acts of V does not break the chain of causation if it is the natural and objectively
reasonably foreseeable result of what D said and/or did, considering the victim’s
characteristics (Roberts).
The acts of V also do not break the chain of causation where V’s refusal of medical treatment
due to religious beliefs caused them to die by the harm D did to them when they may not
have done otherwise (Blaue). This may have been because V’s ‘act’ here was actually an
omission, because of defending religious freedom, or because of the ‘thin skull rule’ (that D
takes their victim as they find them). As well as religious belief (under Blaue) this includes
physical, psychological, and emotional conditions.
A natural event will not break the chain of causation unless it is extraordinary.
Liability
A person, A, will be liable for the acts of another person, B, either vicariously, in certain
circumstances, or where B is an innocent agent. B may be an innocent agent for reason of
being below the age of liability (10), insanity, or by being an accomplice who did not act freely,
while informed, or voluntarily (Michael).
Omissions
D is liable for a crime where D fails to act if:
1) D is under a duty to act.
2) D breaches that duty by not acting reasonably in relation to it.
, 3) Said breach causes V to be harmed.
Duties here arise:
1) Under statute.
2) Where D works in law enforcement.
3) Contractually (Pittwood).
4) Where D voluntarily assumes responsibility either explicitly or implicitly by ‘settled
mutual interdependence’ for the welfare of V where D:
a) knows V has a life-threatening condition, or
b) D and V have a parental or spousal relationship.
5) Where D controls and is present on the property when V is harmed there (in some
cases).
6) Where D omits to halt a ‘continuing act’ that is doing harm to V (Fagan).
7) Where D creates the dangerous situation that causes V harm (Miller; Evans; Bowler).
8) In novel cases, if the judge sees fit.
Cases
Acts and Omissions
Miller [1983] (Duty to Counteract Danger)
D went to sleep holding a cigarette and woke to the mattress burning. He did nothing to put out the
fire and moved to another room. He was charged with criminal damage and arson on the basis that he
omitted to tackle the fire or contact the authorities.
Holding (per Lord Diplock): “I see no rational ground for excluding from … criminal liability, … failing to
take measures that lie within one’s power to counteract a danger that one has oneself created, if at
the time of such conduct one’s state of mind is such as constitutes a necessary ingredient of the
offence.”
Stone and Dobinson [1977] (Duty of Care)
D1 and D2 took V (D1’s sister) in as a lodger, during which time V became unable to care for herself
due to her mental health issues. D2 made efforts to care for her, but ultimately these were inadequate
and V passed away. D1 and D2 were charged with gross negligence manslaughter.
Holding: the jury could find a duty of care because of D1’s familial tie to V and D2’s attempts at care.
Lane LJ suggested that gross negligence here arose where Ds were either (i) indifferent to the risk of
injury, or (ii) foresaw the risk and ran it nevertheless.
Gibbins and Proctor [1919] (Murder by Omission)
D1 was living with – and co-parenting – D2’s daughter, V. The two were negligent and cruel parents
and V resultantly died of starvation. They were both in employment and earning a decent amount of
money, and a duty of care was clearly made out for both. They were tried together for murder.
Holding: The two were under a duty of care to provide the child with food and care, and their omission
in this regard had directly led to the child’s death.
Novus Actus Interveniens
Evans [2009] (Creating a Dangerous State of Affairs)
