THE UNIVERSITY OF TECHNOLOGY, JAMAICA THE FACULTY OF LAW CRIMINAL LAW I UNIT 4 LECTURE 4 ACTUS REUS _______________________________________________________________________ _ A.

. ELEMENTS OF A CRIME There can be no criminal liability unless a criminal act exists (ACTUS REUS). By act we mean a positive act or an omission. In conjunction with the actus reus, there can be no liability for a crime unless a guilty mind is established (MENS REA). The mens rea may take the form of intention, recklessness or negligence. Note for example the analogy used by the learned authors of your text, Smith & Hogans Criminal Law: Suppose I take your bicycle from the rack in which you left it, ride it home and put it in my garage. Have I stolen it? The question cannot be answered without considering my state of mind at the time of the taking. Perhaps I mistook your bicycle for my own similar model which I had left in the same shed. Or perhaps I mistakenly supposed that you had said I could borrow the bicycle; or though I knew it was your bicycle and that I was taking it without your consent, I only intended to

borrow it for a day or two. In none of these cases have I stolen it. But if I knew it was your bicycle and that I did not have your consent and I dishonestly intended to keep it permanently for myself, I am guilty of theft. The act is the same in every case. The difference is the state of mind with which the act is done. (Smith & Hogan, Criminal Law Cases and Material, 7th Edition, pg 3.) Based on the above, it is clear to see that in order to qualify as a crime a guilty act as well as a guilty mind is required in most circumstances for it is a fundamental principle of English Law that an Act does not of itself constitute guilt unless the mind is guilty Actus non facit recum nisi mens sit rea. Generally the two must coincide; that is, there should be coincidence of actus reus and mens rea. In the case of Haughton v Smith (1975) AC 467 pages 491- 2 it was stated: An act does not make a man guilty unless his mind be also guilty. In light of the foregoing, when one is trying to ascertain whether or not a crime has been committed, it is incumbent upon that person to prove that both the actus reus and mens rea are present. This is necessary for all crimes save and except strict liability offences which only require the actus reus as set out by statute and does nor require the proof of any mens rea. That being said, the question then arises as to what exactly is the meaning of actus reus and mens rea and what do these two terms cover in Criminal Law.

Note that these notes will focus specifically on actus reus while notes on Mens rea will follow in the next week) ACTUS REUS It is customary to separate crime into actus reus and mens rea. As previously explained, the Actus reus is the prohibited conduct, omission, consequence or state-of-affairs. Any fault element, such as intent or recklessness, in respect of it is the mens rea (state of mind). The Actus reus is the external manifestation of the offence. It includes includes all the elements in the definition of the crime except the accused's mental element. Actus reus is a part of the cardinal principle of criminal law that conduct does not make a person legally guilty unless it is accompanied by a blameworthy state of mind. Note the Latin adage: "actus non facit reum, nisi mens sit rea" This expression is derived from Coke's brocard in his Institutes, Part III (1797 ed.), c.1 fo.10: "et actus non facit reum, nisi mens sit rea" "No act is punishable unless it is performed with a criminal mind." The term actus literally means act in English. However to state that the term actus reus means the act which constitutes the crime, is far too limited a view as the actus reus may actually cover an omission to act, and in some limited instances a state of affairs. Glanville Williams in his text (Criminal Law: The General Part (2 nd Edition, 1961) p 18, contends that actus reus even includes a mental element in so far as that is contained in the act. This meaning of actus reus, he stated, follows inevitably from the proposition that all the constituents of a crime are either actus reus or mens rea. From Glanville Williams definition, it should be seen that it is too narrow to define the concept of actus reus only in terms of acts as the term includes:

i. ii. iii.

Acts Omissions A criminal state of affairs

We will examine each form of the Actus Reus in turn: ACTS The actus reus generally requires proof that the defendant voluntarily committed an act i.e.; that the defendant committed the act through his own free will as opposed to it being committed involuntarily. For an act to be involuntary, the person doing it must be deprived of free choice as to what to do and divested of the ability to control what he did at the particular point in time. For example a person who acts in an epileptic fit, or in his sleep, or when attacked by a swarm of bees or in a state of automatism. Hill v Baxter (1958) 1 QB 277 @186. When a person is contending that he committed an act involuntarily, he is saying that he was in an automated state. In these instances where it can be proven, the defence of automatism is available to the accused and where successfully pleaded may lead to a complete acquittal. AUTOMATISM Automatism occurs where the defendant performs a physical act but is unaware of what he is doing. In the case of Bratty v AG for Northern Ireland (1963,) Lord Denning defined automatism. He stated that what it means is an act which is done by the muscles without any control by the mind such as a spasm, a reflex or a convulsion; or an act done by a person who is not conscious of what he is doing while suffering from concussion or while sleepwalking .****

In his judgment, Lord Denning went on to clarify the key components of the defence when he stated: The term involuntary act is however capable of wider connotations; and so as to prevent confusion, it is to be observed that in the criminal law: (i) an act is not to be regarded as an involuntary act simply because the doer does not remember it. When a man is charged with dangerous driving, it is no defence for him to say: I do not know what happened, I cannot remember a thing.: See case of Hill v Baxter [1958] Q.B. 277 on this point (ii) Loss of memory afterwards is never a defence in itself so long as he was conscious at the time: R v Padola [1959] 3 All ER 418.

(iii)

Nor is an act to be regarded as involuntary act simply because the doer could not control his impulse to do it. When a man is charged with murder, and it appears that he knew what he was doing, but that he could not resist it, then his assertion: I could not help myself is no defence in itself: see AG for South Australia v Brown [1960] AC 432 though it may go towards a defence of diminished responsibility in places where that defence is available but it does not render his act involuntary so as to entitle him to a complete acquittal

(iv)

Nor is an act to be regarded as involuntary simply because it is unintentional or its consequences are unforeseen. Where a

man is charged with dangerous driving, it is no defence for him to say, however truly, I did not mean to drive dangerously. There is said to be an absolute prohibition against that offence, whether he had a guilty mind or not, but even though it is absolutely prohibited, nevertheless he has a defence if he can show that it was involuntary act in the sense that he was unconscious at the time and did not know what he was doing.

(v)

Another thing to be observed is that not every involuntary act leads to a complete acquittal. Take first an involuntary act which proceeds from a state of drunkenness. If the drunken man is so drunk that he does not know what he is doing he has a defence to any charge, such as murder or wounding with intent, in which a specific intent is essential, but he is still liable to be convicted of manslaughter or unlawful wounding for which no specific intent is necessary: DPP v Beard [1920] AC 494

(vi)

If the involuntary act proceeds from a disease of the mind, it gives rise to a defence of insanity but not a defence of automatism. Suppose a crime is committed by a man in a state of automatism or clouded consciousness due to a recurrent disease of the mind. Such an act is no doubt involuntary, but it does not give rise to an unqualified acquittal for that would mean that he would be at large to do it again. The only proper verdict is one which ensures that the person who suffers from the disease is kept secure in a hospital so as not to be a

danger to himself or others. That is, a verdict of guilty, but insane. The defence of automatism can therefore be said to involve 3 elements: (i) (ii) (iii) Total destruction of voluntary control; Caused by an external factor; Defendant was not responsible for his condition; i.e.; his condition was not induced through any fault of his Total destruction of voluntary control It is necessary to demonstrate a total destruction of voluntary control. It is not sufficient to show that the accused had only impaired control over his Acts. See AG reference (No 2 of 1992) Nor is it enough to simply show that the accused did not control his actions or did not know what he was doing if he could have controlled his actions. The Condition must be caused by an external factor This is important as the distinction between automatism and insanity depends upon whether the state of mind is caused by an internal or external factor. That is, the difference between whether a person walks free or is detained at the pleasure of the Crown, turns on whether the lack of control was caused by an internal or external factor. 7

If is caused by an external factor [for example being hit in the head by a falling object or where a diabetic involuntarily acts as a result of hypoglycemia caused by an excess of insulin injected as part of medical treatment- See R v Quick [1973] 1 QB 910then the defence is in automatism; If an internal factor; for example, an epileptic fit See R v Sullivan - (1984) AC 156 ] or a case of schizophrenia then the defence will be insanity. The idea behind this being that where there is a disease of the mind that is prone to manifest itself in violence, it is probe to reoccur and as such it is the sort of disease for which a person should be detained in hospital rather than given an unqualified acquittal.

The Defendant is not Responsible for his state of mind If the automatism is self induced it will not excuse a person from criminal liability. This was the view of the Court of Appeal in Quick and confirmed by the HL in Sullivan. The Appeal Court in R v Quick said that if the hypolgycaemia were selfinduced through negligence, it would not have been a defence. In the words of Lawton LJ: a self-induced incapacity will not excuse ... nor will one which could have been reasonably foreseen as a result of either doing or omitting to do something, for example, taking alcohol

against medical advice after using certain prescribed drugs or failing to have regular meals while taking insulin It is for that reason that self-induced alcoholism is never a defence. While it is a defence to crimes of specific intent, where one must have been able to form the necessary intent to commit that particular crime, (for example: murder, inflicting Grievous Bodily Harm with intent etc) it is not a defence to crimes of basic intent where one has the necessary mens rea simply by being reckless, or negligent as to the result of his actions. A person is deemed reckless where he forsees that a particular harm may be done and yet he goes on to take the risk of it. Recklessness is neither limited to nor does it require any ill-will towards the person injured: R v Cunningham. Whereas, a person is deemed criminally negligent where he owes a duty of care, he breaches that duty and that breach resulted in the harm or death of the accused. For Example: R v Lipman (1970) 1 QB 152 The Defendant and his girlfriend each took a quantity of LSD (a hallucinatory drug). During this trip the Defendant imagined he was being attacked by snakes at the centre of the earth and had to defend himself. In doing so he actually killed the Victim by cramming eight inches of sheet down her throat. Held: He was acquitted of murder because the jury was not sure that he had the necessary intention as he was intoxicated. Instead he was found guilty of manslaughter.

This case was approved in DPP v Majewski (1977) AC 443 OMISSIONS As a general rule of law, there is no obligation on the part of any person to act to prevent the occurrence of harm or wrongdoing to another. Citizens are generally not required to be their brothers keeper.

For example: If a pedestrian falls into the road , is run over by a speeding car and consequently dies, and a bystander could have prevented this by reaching out and pulling the pedestrian from the road but chooses not to, notwithstanding how inhumane, or morally reprehensible this may be considered, no criminal proceedings can generally ensue from the bystanders omission to act. However an omission may give rise to criminal responsibility in certain circumstances; these circumstances largely being: (i) (ii) Where statute either expressly or impliedly imposes liability for a failure to act and ; where a person is under duty to act arising at common law or under statute by virtue of the following: (a) the relationship between persons, certain persons are liable to act; (b) contractual relations;

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(c) voluntarily assuming responsibility for another persons care; (d) creating a dangerous situation. N.B. These examples are the more common examples and are not meant to be exhaustive as once it can be proven that a person had a duty to act, then such person is under an legal obligation to do so. Re: Statutes Many statutes also make omissions criminal; failure to provide specimen of breath for a breath test, failure to report an accident within a prescribed period etc Re: By virtue of relationship between persons As noted in the Text, Criminal Law by Peter Seago (3 rd Edition), certain persons are liable to act because of their status. For example: sea captains are under a duty to take reasonable steps to protect the lives of their passengers and crew. Parents are under an obligation to look after the welfare of their children and guardians their wards. For example: R v Gibbins and Proctor (1918) 13 CAR 134 The defendant and his common law wife failed to feed the man's 7 year-old child, Nelly, and she died from starvation. The woman hated Nelly, and was clearly the person behind the omission to feed.

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Held: Where there is the duty to act, failure to do so can lead to liability, even for murder, if the necessary mens rea is present. The Defendant, being the father of the child, had the duty to act for the welfare of the child. His common law wife was held to be liable because, while the child was not hers, she was living with the defendant and had undertook the duty to care for the child. The courts regarded the parent's duty towards a young child as so self-evident as not to require analysis or authority. Both parties were found guilty of murder. By virtue of contractual relationships It is possible to bring oneself under a duty to act by virtue of contractual obligations. For example: If a person is employed by the National Works Agency to ensure that all roads in the New Kingston area are in good and proper order and by failing to properly perform his duties a road caves in and a person driving on that road dies, that person may be liable for the death of the driver, for even though his contract exists with the National Works Agency, he is under a duty of care to all users of the road who are not necessarily signatories to the contract. One of the leading cases on this point is the case of R v Pittwood (1902) 19 TLR 37 In that case the accused, who was under a contractual obligation to look after a railway level crossing, negligently left his post with the gates in such a position as to suggest to road users that no trains were coming. As a result a man was killed when his cart, which was crossing the railway lines, was struck by a train.

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The accused was charged with causing the death of the deceased by gross negligence. He argued that he owed no duty of care to the users of the crossing, but rather that his contract was with the railway company and as such his contractual obligations lay solely with the railway company. The Court held however that this contractual undertaking was sufficient to place him under a duty to the road users and as such the prosecution was able to establish the actus reus. By virtue of Voluntary Undertakings A person may undertake to be his brothers keeper. Where a person voluntarily assumes responsibility for anothers care and then simply fails to fulfill that undertaking, he or she may become criminally liable for any harm which may be occasioned. There is no need to prove a legal obligation to undertake the duty or that is obliged by contract, it is sufficient if the defendant has voluntarily and gratuitously undertaken the care of another. For example: R v Instan (1893) 1 QB 450 The defendant lived with her aged and helpless aunt but caused her death by failing to give her food. She was found guilty of manslaughter. The court held that there was a duty on the part of the

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defendant to provide food by virtue of her voluntary undertaking to look after her aunt. Stone and Dobson (1977) 2 All ER 341 S and D allowed Stone's ill and unstable sister, Fanny, to live in their house. Fanny was suffering from anorexia and her condition deteriorated, until she became bed-ridden. She needed medical help, but none was summoned and she eventually died in squalor, covered in bed sores and filth. Held: Because S and D had taken Fanny into their home, they had assumed a duty of care for her and had been grossly negligent in the performance of that duty. The fact that Fanny was Stone's sister was merely incidental to this. Both were found guilty of manslaughter by gross negligence

By virtue of creating a dangerous situation Where a person has created a dangerous situation, he is deemed to be under a duty to take reasonable steps to avert that danger. If for example a person saw two persons trapped in a burning car, he would be under no duty to try to assist them, if however he was the person who was smoking next to the car as it was being filled with gasoline and as a result it exploded into flames, he may be thought to be under a duty to act. One of the leading cases on this point is the case of R v Miller (1982) 2 All ER 386

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In that case the accused had fallen to sleep while smoking a cigarette in a house where he was squatting. He awoke to find that his mattress was on fire, but instead of taking steps to put the fire out, he simply moved to another room leaving the fire to spread. The House of Lords decided that common sense dictated that he should bear responsibility for the result of his failure to avert the danger which he had caused. In that case, Lord Diplock stated: "I see no rational ground for excluding from conduct capable of giving rise to criminal liability, conduct which consists of failing to take measures that lie within one's power to counteract a danger that one has oneself created. He further stated: where the accused is initially unaware that he has done an act that in fact sets in train events, which, by the time the accused becomes aware of them, would make it obvious to anyone who troubled to give his mind to them that they present a risk that property belonging to another would be damaged, a suitable direction to the jury would be that the accused is guilty of the offence if, when he does become aware that the events in question have happened as a result of his own act, he does not try to prevent or reduce the risk of damage by his own efforts or if necessary by sending for help from the fire brigade and the reason why he does not is either because he has not given any thought to the possibility of there being any such risk or because having recognized that there was some risk involved he has decided not to try to prevent or reduce it.

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Once the prosecution has proved that the accused failed to act in a situation where the law imposes a duty to act, (i.e. they have established the actus reus), then the general principles of criminal liability operates as in any other case and in all instances, unless it is a strict liability case, the prosecution would then have to prove that the necessary mental element accompanied the actus reus so as to make the omission of the accused a crime. STATE OF AFFAIRS A crime may be committed although there is no act in the normal sense instead there may be a specified state of affairs which is deemed sufficient. A "state of affairs" refers to the circumstances at a particular place and time which are to be distinguished from an act which is doing something, such as stabbing somebody or taking property and an omission which is not doing something, such as failing to take care of your child. For example: R v Larsonneur (1933) 24 Cr App Rep 74 In this case, the Defendant was convicted under the Aliens Order Act 1920 of being an alien to whom leave to land in the UK has been refused. The defendant was found in the UK after she had been brought from Ireland to the UK against her will in the custody of the police. Note, notwithstanding the fact that the accused was brought to

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the UK against her will, she was still convicted of the crime as she was found in the UK after she was strictly prohibited from being there. The state of affairs in this instance was constituted when Ms. Larsonneur was found in the UK. Winzar v Chief Constable of Kent (1983) Times 28th March In this case, the police were called to remove the accused from the hospital corridor. They found that he was drunk and removed him to a police car which was parked on the highway. The accused was found guilty of being found drunk on a highway and convicted even though strictly speaking he was found by the police in the hospital corridor. The state of affairs was constituted in this instance when the accused was found drunk on a highway. Note that these state of Affairs offences are usually strict liability offences with no need for one to determine how the state of affairs came to be. In these instances, Parliament may be taken to impose criminal liability where the voluntary conduct of the accused is not required. It is submitted that while they do not seem to be the most fair cases, they show very clearly the concept of strict liability offences; namely once a person is found to have contravened a particular statute even if such contravention may not have been as a result of the act of the person (For example: Mrs. Larsonneur was taken to the UK by police and police were the persons who took Winzar to the car on the highway) he /she may still be deemed to be found guilty by virtue of

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falling under the particular prohibition on a strict application of the subject statute. Note: 1. Students must read the relevant chapters on ACTUS REUS from their respect editions of the text and case book 2. Students MUST read the full text of the cases identified.

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