Lecture 3

Actus Reus (guilty act): The external requirement of an offence.

- Conduct element: the physical actions or omissions required for the offence.
- Circumstance element: the surrounding facts required for the offence (shooting at
someone in self-defence)
- Result element: the outcomes of D’s acts that are required for the offence
If the peros doesn’t die, then the charge will be for attempted murder

Mens Rea (guilty mind): the internal or mental requirement of an offence

Conduct crimes:
- Conduct element
- Circumstance element

Result crimes
- Conduct element (dangerous driving, DUI)
- Circumstance element
- Result element (assault, theft as property moves from one hand to the other)

Acts vs Omission

General rule: act requirement

Exception: crimes of commission where an omission suffices as the actus reus.
- Murder by omission (such as child neglect)
- Causing GBH with intent (lifeguards at a pool)
- Theft (borrowing a book and not giving it back)
- Criminal damage (working on a construction site and borrowing tools from someone
which are then destroyed by not caring for the property)

Which crimes cannot be committed by omission>

- Any crime whose definition requires affirmative action
- Unlawful Act Manslaughter: Lowe (1971)
- Gross negligent manslaughter
- Assault (Fagan)

For omissions to suffice we need:

- Duty to act
- Breach of that duty
- Breach causes resulting harm

See case Evans (2009) EWCA Crim 650

Larry hates Harry and whilst they’re out on their usual Sunday walk, Larry pushes Harry onto
a railway track intending him to be hit by the next train, which is due any minute. Larry runs
away. Harry is injured by the fall and cannot get up. He calls for help.
 - Gary, who is employed to operate the level-crossing, hears Harry calling for help, but
as he’s in the middle of Sunday lunch, he decides not to get up and investigate. Gary
has a contractual duty to operate the level-crossing
- Jerry, the local police-officer is also in the vicinity doing his rounds. He also hears
Harry’s cries but he doesn’t want to get involved as it’s 10 minutes to the end of his
shift, and he doesn’t want a crisis to delay him from getting home in time for the
football. Jerry has a common law duty to protect or to not commit misconduct
while acting as a police officer. He had a legal duty as he was in office. If he was off
the shift, he would still have the duty. (Dytham case)
- Sally, Harry’s Mum, is walking by the railway track with her new boyfriend, Barry,
when they hear Harry calling for help. Sally realises Harry’s in trouble but decides
not to go and help because she thinks Harry is old enough to stand on his own two
feet. There is a duty to act because there is a special relationship, unless it puts you
at harm. Common law duty for a mother is much lower than a police officer as they
are trained for this. Always look at the circumstance when establishing a duty of
care between family members beyond being 18.
- Barry, who has never met Harry before, considers running to help but decides he
doesn’t want to ruin his new shoes by getting them muddy. No duty to act because
there is no bad Samaritan law,
Shortly after, a train comes by and kills Harry.
Even an omission needs an intent

In order for Larry to be liable for murder, there needs to be virtual certainty. If, however,
Harry jumps in to commit suicide, we do not have to act on it as it was a voluntary act by
Harry.

Act element: Omission

Circumstance element: Duty to act; breach

Duties can include:

- Common law or statutory duty (reporting a traffic accident)
- Contractual duty (agent working at the train station)
- Relationship based duty (between family members)
- Assumption of care duty (try to help someone and have to go through with it) (see
case of Nicholls (1874), Instan (1893), Stone and Dobinson (1977), Airdale NHS Trust
v Blad (1993))
- Creation of a dangerous situation (see case of Miller (1983) and Evans (2009))

Miller - Duty to remedy a dangerous situation which D himself has created.

Lord Diplock:
- “...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.”

Evans (2009) - Duty to remedy a dangerous situation which D has not created but has
contributed to?
“The duty necessary to found gross negligence manslaughter is plainly not confined to cases
of a familial or professional relationship between the defendant and the deceased. In our
judgment…for the purposes of gross negligence manslaughter, when a person has created
or contributed to the creation of a state of affairs which he knows, or ought reasonably to
know, has become life threatening, a consequent duty on him to act by taking reasonable
steps to save the other's life will normally arise.” Judge LCJ

Statutory crimes of omission include:

- Wilful neglect of a child
- Failure to report a road traffic accident
- Failure to submit a tax return

In medical situations, if stopping life support is in the best interest of the patient, then the
doctors will not be found liable. But if a family were to come in and switch off life support,
this would be viewed as assisted suicide.

• Acts and Omissions Distinguished:

A person’s criminal liability may depend upon whether the cause of a harm was an act or an
omission. The distinction is not always obvious. (Airedale NHST v Bland (1993), Fagan
(1968))

• Breach of Duty:
There can be no liability for omitting to act unless the omitter was in breach of his/her duty.

Those who are under a duty to act are required to act reasonably in all the circumstances.
1. No breach if performance of the duty was impossible
• Harding v Price (1948)
2. No breach if the defendant’s conduct was justified.
• R v Smith (1979); Airedale NHST v Bland (1993).
3. No breach if the defendant acted as reasonably as could be expected in the
circumstances, e.g. Miller.

• Causation:
The prosecution must be able to prove that the defendant’s breach of duty CAUSED the
harm:
• R v Morby (1882)

• No liability for harm causing omissions is justified by reference to freedom and

autonomy.
• Some challenge the moral basis to this justification. Ashworth (‘The Scope of
Criminal Liability for Omissions’, (1989) 105 LQR 424) proposes a general duty of
easy rescue.
• Others propose certain new duty situations. Wilson (Criminal Law 91-99) proposes a
duty to prevent harm arising out of the occupancy of premises.
 • Many countries (e.g. France) have ‘Bad Samaritan’ laws which make it a criminal
offence not to help people in peril, but do not hold them accountable for the
consequences.

Liability can occur without the defendant having acted

- Liability for omissions
- Situational liability
- Possession offences

Criminal liability simply requires A to be in a prohibited situation

• Eg s 3(1) Dangerous Dogs Act 1991
• ‘being the owner of a dangerous dog which was out of control in a public
place and therein injures a person’:
• R v Elvin (1993)

Posession offences
- Liability depends upon A being in possession of a prohibited object. It does not
require A to have voluntarily taken possession
- Possession an offensive weapon (R v Deyemi)

Positivist
• Situational crimes and crimes of possession are unpopular with commentators
because they allow for liability in the absence of
1. Wrongdoing
2. Fault