Criminal Law

1. The Institute of Legal Studies
Criminal Law Actus Reus

2. Actus reus
❖ Conduct
❖ Situational liability
❖ Crimes of possession
❖ Crimes of omission

3. Actus reus: Conduct
❖ The act requirement
❖ Voluntary wrongdoing.
❖ Hayward: it was sufficient that the accused threatened and chased his
victim, who died of a heart attack.
❖ How to identify acts reus?
❖ it is given in the definition of the crime
❖ To kill, Wound, GBH, inflict harm, appropriate property of
another.
❖ Result - Death (Homicide), injury (OAPA, wound, GBH 47, 20/18)

4. Actus reus: Situational liability
❖ Crimes involving state of affairs
❖ Certain offences require proof not of some form of conduct
but simply of the defendant being in a situation which the
law forbids the defendant to be in or continue to be in.
❖ Section 3 (1) of the Prevention of Oil Pollution Act 1971: if
any oil is discharged into any part of the sea from the pipe-
line, the owner of the pipe shall be guilty of an offence
❖ Such offences often criticised for allowing criminal
conviction in the absence of any voluntary wrongdoing

5. Actus reus: Situational liability
Larsonneur:
❖ A French woman arrived in England.
❖ Later ordered to leave the country and she went to Ireland
❖ Deported from Ireland back to England
❖ On her arrival she was convicted for being an alien under
Aliens Order 1920
❖ She was convicted despite the fact that her presence in
England was involuntary

6. Actus reus: Situational liability
Winzar v Chief Constable of Kent:
❖ Def brought o hospital on a stretcher and was found to
be drunk.
❖ When he refused to leave after hospital staff asked him
to do so, police took him on the highway outside the
hospital and he was charged of ‘being drunk’ in the
highway under section 12 of the Licensing Act 1872
❖ Court upheld the conviction

7. Actus reus: Situational liability
Analysis
❖ These decision are criticised for being too harsh.
❖ Problem with situational liability is that it may stray too far
from the criminal law’s paradigm of culpable wrong doing.
❖ As long as an offence sets a standard behaviour which can be
conformed by the individuals by avoiding a certain action there
is no reason to limit the substance of such offences to acts.
❖ Winzar got himself into a situation.

8. Actus reus: Situational liability
R v Elvin
❖ Def’s pit bull terrier escaped from his house and bit a
person
❖ Def argued that the dog did not escape due to his
voluntary act or omission
❖ Def charged and convicted for being owner of that dog
that bit a person

9. Actus reus: Crimes of possession
❖ Possession of prohibited objects and substances.
❖ Creation of statutes. They are not found in Common law.
❖ It is enough to establish that the accused is in possession
the object.
❖ If a person is given prohibited objects and he fails to
dispose it off – he is still liable
❖ By failing to remedy the harmful situation – the
Def thereby adopts it as his own.

10. Actus reus: Crimes of possession
Warner 1969
❖ Def given two boxes – one contained scent other contained drugs
❖ Def argued that he thought both contained scent
❖ Held: if a person is on possession of a container he was also in possession of its
contents even if they were quite different from what they were believed to be
❖ This presumption could be rebutted:
❖ The thing has been secreted into the recipient’s bag or onto his person
without his knowledge
❖ Def receives an article whether in a container or not and the thing is
fundamentally different from what it is thought to be.

11. Actus reus: Crimes of possession
Analysis
❖ Possession appears to be inconsistent with the act requirement – possession is a
state of affairs, not a way of behaving
❖ Society is entitled to expect citizens to be responsible about what they allow
into their possession.
❖ If someone gives u a bag to be carried through customs – society expects
you to check it.
❖ The existence of the substance is a social threat – it makes that the person in
possession is held liable
❖ Lacking awareness is not defence – a person is expected to take steps as a
reasonable man would do.

12. Omission
❖ Failure to act: Defendant fails to do something he is
placed under a legal duty to perform.
❖ Generally failure to act does not result in criminal
liability. but, there are exceptions.
❖ There is no such duty of easy rescue under criminal law.
❖ Human autonomy
❖ we are responsible for the acts that we do
voluntarily

13. Omission
Requirements for omission:
1. The conduct element of the crime in question must be
capable of commission by omission;
2. The circumstances must be such as to create a legal
duty to act; and
3. The defendant’s failure to act must be voluntary.

14. Omission
Justifying criminalising omissions - autonomy vs responsibility
❖ Punishing omissions seems to compromise rather than
enhance human autonomy since it makes demands of us
which may well require us to subjugate our interests to those
of others.
❖ Without criminalising omissions society would be trickled
down to compromise the very framework within which
individual autonomy can be enjoyed.
❖ Sometimes responsibility trumps autonomy

15. Omission
The offence must be capable of commission by omission
❖ An offence can be committed by way of omission, if it is
provided in the definition of that offence and if the
defendant is placed under the duty to act.
❖ Example: murder (to cause death), theft, criminal
damage

16. Omission
The offence must be capable of commission by omission
R v Dunn (2015)
❖ Def had caused a 15-year-old girl to masturbate him.
❖ Def was charged with indecent assault.
❖ Indecent assault requires there to be an act of Def’s part,
whereas, here, the act was of the girl’s
❖ Court held that the offence was not made out. The offence
was causing a child to engage in sexual activity.

17. Omission
Duty to act
❖ Is there any duty to act under law that might give rise to liability?
❖ Law does not impose generalised liability for omissions.
❖ "Thou shalt not kill but needst not strive, officiously, to keep another alive”
❖ A sees B drowning and is able to save him by holding out his hand. A
abstains from doing so in order that B may be drowned, and B is
drowned. A has committed no offence. (Sir Fitzjames Stephen)
❖ Only in situations where there is legal duty to take action – e.g. parents-
children, spouses or where the Def has assumed responsibility to take
care of the victim.

18. Omission
Duty to act - Special relationship
❖ Parent – child: parent may be guilty of murder for
starving his child to death.
❖ Spouses
❖ R v Hood (2003) Def by gross negligence allowed his
sick wife to remain untreated for 3 weeks after she had
fallen from stairs
❖ Def convicted of gross negligence manslaughter

19. Omission
Duty to act - Special relationship
❖ People v Beardsley (U.S.)
❖ Def had extra martial affair with the Victim
❖ Victim overdosed herself with morphine while being with Def
and eventually died
❖ Issue: Was the Def under a duty to his lover
❖ Held: There is no duty imposed on the Def.

20. Omission
Duty to act - Special relationship
❖ Analysis:
❖ Duty is imposed in these situations because the Def has
place himself in the frame by their status/role/conduct.

21. Omission
Duty to act - Contractual relationships
R v Pitwood (1902):
Facts
❖ The defendant was employed to operate the gate at a level
crossing across the track.
❖ Def failed to close the gate, train hit a horse cart and the Victim
died.
❖ Def was convicted of manslaughter and subsequently applied for
permission to appeal.

22. Omission
Duty to act - Contractual relationships
❖ Pitwood (1902):
Issue
❖ Whether an omission (in this case the failure to close the
gate) could constitute the actus reus for murder.

23. Omission
Duty to act - Contractual relationships
❖ Pitwood (1902):
Held
❖ Def had been under a contractual duty to close the gate, his omission to
perform this obligation was capable of constituting the actus reus for murder.
❖ This was particularly so as the purpose of the defendant’s employment was
for the protection of the public, and his employer was responsible for
preventing accidents at the crossing.
❖ In the circumstances, the duty had been breached with gross and criminal
negligence.

24. Omission
Duty to act - Informal assumption of duty
❖ Where a person voluntarily assumes the duty – relationship of
dependence.
Gibbins and Proctor:
❖ A dad and his cohabitee were convicted for death of the infant
❖ Dad as a parent and his cohabitee for having assumed, and
failed to discharge, the care of the infant
❖ Where the relationship is of support and dependence

25. Omission
The duty to avert a dangerous situation caused by the
defendant
❖ In certain scenarios defendant causes a dangerous situation
– hence, it is his responsibility to intervene and stop any loss
❖ Which dangerous situation? Where it is created by the
defendant without fault being attributable to the def’s act.
❖ Not in those situations where Def is at fault

26. Omission
The duty to avert a dangerous situation caused by the defendant
Miller (1983)
❖ Def was in victim’s house.
❖ While in the house, def was smoking and fell asleep without extinguishing the
cigarette.
❖ He awoke and found his bed on fire, and instead of extinguishing the fire he
moved to another room.
❖ House was damaged and def was charged with arson (criminal act of setting fire
to property)
❖ Issue: Def argued that arson was a crime of commission, while his wrong is not
actions, i.e. omission.

27. Omission
The duty to avert a dangerous situation caused by the defendant
Miller (1983)
❖ Issue: Def argued that arson was a crime of commission, while his wrong is
not actions, i.e. omission.
❖ Held:
❖ Criminal damage can occur through omission when Def fails to take
such measures that lie within his own power to counteract a danger that
he has created
❖ In these circumstances, it is def’s ‘responsibility’ to prevent the damage
caused by him.

28. Omission
The duty to avert a dangerous situation caused by the
defendant
Evans (2009)
❖ Def brought heroine for his sister.
❖ She injected herself with it and fell seriously ill.
❖ Def decided not to seek medical help for victim out of fear
that they may all get into trouble
❖ Victim died, and Def was charged for manslaughter

29. Omission
The duty to avert a dangerous situation caused by the
defendant
Evans (2009)
❖ Held:
❖ D is liable for gross negligence manslaughter
❖ although the injection was voluntary act of V, a duty
to take care of the V was present, and breached by
omission.

30. Omission
The duty to avert a dangerous situation caused by the
defendant
❖ Simester and Sullivan– “Evans represent an illegitimate
extension of Miller” – principles of responsibility should
not be invented on an ad hoc basis to deal with specific
problems such as this – this decision shall be confined to
cases where D has materially contributed to and then
intentionally failed to prevent the consequences of a risk
arising from intervention by the victim.

31. Omission
Circumstances governing the scope of the duty
❖ Criminal liability requires voluntariness of action.
❖ Omission also needs to be voluntary. Voluntary
omission is failure to “perform an act of which the
defendant is physically capable”.

32. Omission
Distinguishing acts from omissions
❖ It is important to distinguish btw acts and omissions –
as there is normally no liability for omissions.

33. Omission
Distinguishing acts from omissions
Airedale NHS Trust v Bland
❖ Patient was suffering from persistent vegetative state (PVS).
❖ Patient was kept alive using a nasogastric feeding tube.
❖ Hospital applied to the High Court for declaration that it would be
lawful to discontinue artificial feeding and hydration, so that the
patient could die.
❖ Issue: Whether disconnection was an act or an omission? If it was an
act, the disconnection would be unlawful, it an omission, then lawful.

34. Omission
Distinguishing acts from omissions
Airedale NHS Trust v Bland
❖ Issue: Whether disconnection was an act or an omission? If it was an
act, the disconnection would be unlawful, it an omission, then
lawful.
❖ Held:
❖ it was an omission.
❖ Even though it seems an act, but the true cause of the subsequent
death would be the failure to provide life-sustaining treatment.