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The components of a criminal offence are the actus reus and the mens rea. This is a fundamental principle in our criminal law and both these elements need to be established before criminal liability arises.
Actus reus refers to the physical or conduct element required for criminal liability, the 'guilty act'. To say that actus reus means the guilty act is probably an over simplification. It is not enough that the defendant has committed an act. The term is wider in its application and includes all the circumstances surrounding the commission of the offence including, in particular, conduct, results or consequences, states of affairs or strict liability. The issue of 'omissions' and their relationship to the principles of actus reus also need to be explained. Under the criminal law the defendant's conduct needs to be established first before the court examines the question of the defendant's state of mind and whether the necessary mens rea existed.
The law generally speaking is not concerned with the defendant's reasons for doing something or motive although the police often look at these aspects as part of their investigations as this may narrow down or identify suspects. At this point the law is concerned with what the defendant may or may not have done and whether this is a criminal act e.g. in the case of theft for example the actus reus or conduct consists of misappropriating property belonging to another.
Another example of where the court will look at all the circumstances surrounding the commission of the offence would be failing to stop at the scene of an accident and to report an accident to the police within 24 hours – s170 RTA 1988. The reason being that the offence of failing to report only arises where a defendant fails to stop at the scene and report the matter to the police in the time limit mentioned. It may be possible to charge a defendant with another offence that is appropriate such as driving without due care and attention or some other contravention but for failing to report to be properly charged more than the accident needs to be looked at.
Another example of a conduct crime is perjury which is the act of lying under oath. It is not necessary to show that the evidence of the defendant resulted in the acquittal of themselves or some other defendant it is enough that they lied under oath.
Some offences are known as result crimes. This is because the actus reus of the offence requires proof that the conduct caused a prohibited result or consequence. An example of a result crime would be criminal damage where, the actus reus of the offence of criminal damage is that property belonging to another must be destroyed or damaged (s1(1) Criminal Damage Act 1971). In the case of assault under the Offences against the Person Act 1861, the offence of causing grievous bodily harm can only be charged if really serious injury were caused to the victim. This is because the legislations deliberately defines serious assaults which attract more serious sentences.
The issue of seriousness is the reason for thinking of some offences being result crimes. The idea behind the concept of 'result' crimes is that some crimes are distinguishable in that they require a particular consequence or result for the offence to have been committed. Furthermore as one would expect the result must arise from the accused's behaviour. To be able to ascertain that a defendant can be guilty of a result crime it has to be established that there is a factual link between his conduct and the alleged result he is said to have caused.
Other examples of 'result' crimes include causing death by dangerous driving and murder, where the accused's act must bring about the death of a human being. The result or consequence is something over and above what may be required for a 'conduct' crime such as dangerous driving where the actus reus is the prohibited conduct itself and there is no need to establish a consequence of the act.
We now need to discuss strict liability offences or state of affairs offences (it is enough being there). It is often said that no mens rea is needed for strict liability offences. This is probably an over simplification. A more complete answer would be that the prosecution does not have to prove the existence of mens rea for one or more of the elements of the actus reus of the offence.
Ordinarily the criminal law is concerned with blame worthiness. There are various levels of mens rea or blameworthiness. Some offences are more serious than others and, as a general rule, the more serious the offence the higher the level of mens rea required such as ‘intention’ or ‘recklessness’. This is related to the consequences of conviction and again, as a general rule, the more serious the offence –the greater the punishment. In effect, it is possible to be convicted of a strict liability offence without any degree of fault.
The defendant may not have acted deliberately or in any way to bring about the state of affairs. It may be enough that the situation has arisen. In Sweet v Parsley 1970, a teacher who leased a farmhouse near Oxford rented the accommodation to students. The students participated in the use of ‘soft’ drugs and the defendant was charged with and convicted of, being responsible for the management of premises which were being used in connection with the use of illegal substances under the Dangerous Drugs Act 1965.
As one might expect, bearing in mind the nature of her job, she appealed against the conviction on the basis that the Act was silent on the matter of mens rea but that the prosecution had not done anything to override the common law presumption. Her appeal failed in the Divisional Court and the case went to the House of Lords, where Lord Reid made his speech in which he was clearly able to distinguish between regulatory offences and ‘truly criminal acts’. Lord Reid went on to explain that for regulatory offences he had no problem with the imposition of strict liability, but there was a strong presumption in law of mens rea for the truly criminal type of offence. The defendant’s conviction was therefore quashed.
In the case of Larsonneur 1933 the defendant was being deported from Ireland back to the UK from where she had been deported as her permission to be in the UK had expired. She was escorted back to this country by officials who then promptly arrested her for being an 'illegal alien' on arriving back in the UK because she was there without consent.
Her argument, that she did not want to be in the UK, did not assist her. This case shows that, although she did not commit the actus reus, she was found guilty because of the principle of strict liability. Similarly in Winzar v Chief Constable of Kent 1983 the defendant, who was drunk, was removed from hospital premises against his will and placed in a police car on the public highway. He was then arrested for being found drunk on the highway. However such cases are rare.
It requires the production of consequences or results i.e. the resulting death of a human being. In some 'conduct' crimes such as dangerous driving, the actus reus is the prohibited conduct itself and there is no need to establish a consequence of the act. Other crimes, 'result' crimes such as causing death by dangerous driving,will require that the act caused a consequence.
In some situations it also includes omissions but these are restricted to special circumstances. Generally the rule is that there is no liability if you fail to act except if the defendant was under a legal obligation to act at the time either by statute, public duty or out of responsibility due to the defendant's position. The general rule is that an omission cannot form the basis of the actus reus of an offence.
Lord Justice Stephen's words are often used to support the supposition that a person is not criminally liable for failing to act when he said: 'It is not a crime to cause death or bodily injury, even intentionally, by any omission'. LJ Stephen went on to use the example of the person seeing someone drowning but doing nothing, yet if they had held out their hand the person would have been saved.
As with most general rules there are exceptions. At common law there are some situations where the failure to act does give rise to criminal liability. Parliament can also impose a duty to act in an Act of Parliament such as the Children and Young Persons Act 1933 which made it a criminal offence for a person over 16 failing to look after a child under 16, so an omission is part of the actus reus of that crime.
A duty can arise by virtue of a special relationship, such as that of a parent and child. This was the case in Gibbins v Proctor (1918) where the child's father and his common law wife neglected to feed the child. The child died of starvation and the couple were found guilty of her murder. Whilst it was widely accepted that the father was obligated to look after his own child, the man's common law partner was also considered liable because, although the child was not her own, she had received money for food from the man. Such special relationships can extend to nieces and aunts as in R v Instan (1893).
A slightly wider exception is where the defendant has voluntarily accepted responsibility of an other. There does not need to be a 'special relationship' as such, merely that the victim comes to rely upon the other and the other fails to act as expected. An example can be found in the case of R v Stone and Dobinson (1977) where a sister of an elderly brother came to stay.
A contractual duty to act may give rise to a criminal liability. This was so in R v Pittwood (1902) where a person was employed by the railway as a gate keeper at a level crossing. He opened the gates to let a car pass across the line but failed to close them before going off to have his lunch. A short time afterwards a train hit a hay-cart crossing through the already open gates. The person with the hay-cart was killed. The gate keeper was found guilty of gross negligence as a result of failing to act in accordance with his contractual obligations. A modern example of someone under a duty to act would be a lifeguard.
Since R v Miller (1983), the common law has recognised that criminal liability may arise where there is a dangerous situation and this has been caused by the defendant and the defendant has failed to take action to put this right. There is a requirement that persons in a public position have a responsibility to take certain action.
In the case of R v Dytham (1979), for example, a police officer was held to have been correctly convicted when he stood by during a disturbance in which a man was kicked to death. It was held that the offence of misconduct in a public offence can be committed by an omission.
In R v Marchant and Muntz (2004) we are reminded that there must be an actus reus if there is to be a crime. In that case the two appellants had their convictions quashed for dangerous and for procuring dangerous driving in respect of a tractor which was in it original state and authorised to be used on public roads. The tractor had arms fitted at the front to lift bales and this was in the position recommended by the manufacturer. The issue arose as to whether the tractor was inherently dangerous or in a condition that was obviously dangerous to a competent and careful driver.
The Appeal Court took the view that the trial judge had erred in not making the position clear to the jury that the 'condition' of the tractor in itself was not dangerous. Hence there was no actus reus.
(Word Count 2043)
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