Actus reus: Acts and omissions

The elements of a crime

• Crime =
• Actus reus (AR) (external element - conduct, behaviour or state of affairs)
• External element

• Mens rea (MR) (mental/fault element, state of mind)

• Internal element

• No defence
• So, for criminal liability the prosecution must:

a) prove that Defendant has satisfied the external element of the offence definition
b) prove that Defendant has satisfied the mental element of the offence mens rea definition
c) disprove any defence in support of which Defendant adduces evidence.

• It is the whole that makes the crime A person cannot be found guilty without.

The form of the actus reus

Conduct (conduct crimes)

• eg doing an act more than merely preparatory (attempt) law establish doing an act of conduct of
actus reas

Consequences (result crimes)

• eg causing death (murder) bring about of the action

Circumstances

• eg (property) belonging to another (theft) circumstance which crime is committed belonging to

another person

Actus reus and voluntary conduct

• All crimes have an actus reus of some sort

• Conduct must be committed voluntarily
• eg conduct not voluntary if D unconscious if defendant automaton behave in an uncontrollable way
e.g. sneezing your conduct not voluntarily
• Automatism: Complete lack of physical voluntariness

Omissions

• General principle of liability for acts not omissions – individual autonomy criminalise acts not
omissions
• Generally, there is no duty to act/good Samaritan law e.g. walk in park someone drowning don’t
need to save them.
• What is an act and what is an omission?
• Airedale NHS Trust v Bland [1993] 2 WLR 316
• “I must however stress, at this point, that the law draws a crucial distinction between cases in which
a doctor decides not to provide, or to continue to provide, for his patient treatment or care which could or might prolong
 his life, and those in which he decides, for example by administering a lethal drug, actively to bring his patient's life to an
end.” per Lord Goff of Chieveley
• Permanent vegetative state, resulting in the end of his life. Withdrawal of treatment would be
omission, however, machines turned off require positive action.
• Dr concerned that they would be liable to murder, withdrawl of treament counts towards an
omission.
• The line between acts and omissions is not always clear
• Some crimes cannot be committed by omission
• eg where statute requires positive act: Ahmad (1986) 52 P & CR 346 failure carry out repairs
because court says statute cannot interpret away terms used are ‘doing acts’, cannot be interpreted as omission.
• Where the crime can be committed by omission, D will only be liable if under a duty to act
• 6 main duties

Summary: acts and omissions

• The key things to remember are:

• 1. In general, criminal law in England and Wales criminalises acts not omissions
• 2. Some crimes cannot be committed by omission (eg see statute) determine if crime is committed
by omission
• 3. If the crime may be committed by omission, ask:
• Was there a duty to act?
• If so, what was the legal basis of the duty (6 options)?

1) Statutory duty

• eg s1, Children and Young Persons Act 1933:

• (1) If any person who … has responsibility for any child or young person … wilfully assaults, ill-
treated, neglects, abandons, or exposes him, or causes or procures him to be assaulted, ill-treated, neglected, abandoned,
or exposed, in a manner likely to cause him unnecessary suffering or injury to health … that person shall be guilty …
• (2)(a) a parent or other person legally liable to maintain a child or young person … shall be deemed
to have neglected him in a manner likely to cause injury to his health if he has failed to provide adequate food, clothing,
medical aid or lodging for him…

Creates mistreatment of children. Statute criminalizes failure neglect child is criminal offence, criminalisation of omission

2) Contractual duty

• R v Pittwood (1902) 19 TLR 37

• Involved D was responsible for level crossing on the road, the train was coming and was reopened.
Pittword failed to close this, horse and cart hit by the train and death occurred and injuries to both.
• “there was gross and criminal negligence, as the man was paid to keep the gate shut and protect the
public … a man might incur criminal liability from a duty arising out of contract.” per Wright J
• Failure to close gate, train driver was killed, court held said pittwood failed on his contract and gave
omissions liability.

3) Duties in public office

• R v Dytham [1979] 3 All ER 641

• Police on duty, fight in a nightclub, killed by nightclub bouncer, Dytham misconduct in office.
Guilty because of his public office failure to protect gave rise to criminal liability.

4) Voluntary assumption of responsibility

• R v Instan [1893] 1 QB 450

• Aunt unwell had gangrene, took food to aunt but didn't feed her or get help, subsequently aunt died
as no one helped. There was duty to help the aunt because the defendant had a moral obligation to help out.
• "A legal common law duty is nothing else than the enforcing by law of that which is a moral
obligation without legal enforcement." per Coleridge LCJ
• R v Gibbins and Proctor (1918) 13 Cr App R 134
• Court established that she had volunteered to care for the child and took responsibility and liability
for the death of the child and no adequate care for her.
 • R v Stone and Dobinson [1977] 2 QB 354
• Had low intelligence, Fanny Stone was in ill condition, unfortunately they failed to get help from the
doctor, 3 weeks later she had died.
• “There is no dispute, broadly speaking, as to the matters on which the jury must be satisfied before
they can convict of manslaughter in circumstances such as the present. They are (1) that the defendant undertook the care
of a person who by reason of age or infirmity was unable to care for himself…” per Lane LJ
• Undertake care of be legal duty rise of liability discharge the duty.

• R v Ruffell [2003] EWCA Crim 122

• Involved a victim who dies and 3rd person were drug users went home and took drugs, victim was
seriously unwell, wrapped him in towels and placed next to radiator
• Victim left outside, cause of death from drug overdose and hypothermia court held they were liable.

5) Special relationship

• eg parent-child or husband-wife
• R v Lowe [1973] QB 702
• Child was sick and didn't get any help, Lowe convicted of offences of child and homicide offences
failed to get medical help.

Child over 18 special? Or a couple separated, not divorced?

Does Not explain limits of special relationship

6) Creating a dangerous situation

• R v Miller [1983] 1 All ER

• Mattress on fire and property to cause on fire.
• “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 powers to counteract a danger that one has
created, if at the time of such conduct one's state of mind is such as constitutes a necessary ingredient of the offence” per
Lord Diplock

Create dangerous situation and give rise to criminal liability

DPP v Santana Bermudez [2003] EWHC 2908 (Admin)

• D stop and seach from the police officer, d said no sharp objections Bermudez had created
dangerous situation, failure to alert officer gave rise to omissions liability was carrying a syringe.

R v Evans [2009] EWCA Crim 650

• Give sister heroine 16 years old, had an overdose and the sister died, evans was under duty to act
supply of heroine, omissions liability to contact a doctor.