ACTUS REUS

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, as well as an act.

In essence, the actus reus includes all the elements of the

definition of a crime except the accused’s mental element. In
fact, Glanville Williams in his text (Criminal Law: The General
Part (2nd 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”.
Rather, the term actus reus includes:

i. Acts
ii. Omissions

(And in limited circumstances),

iii. A criminal state of affairs

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

AUTOMATISM (in effect reverse the actus reus)

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 A-G 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 was 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 an 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 which 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
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 defense of insanity but not a
defense if 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) Total destruction of voluntary control;

(ii) Caused by an external factor;

(iii) Defendant was not responsible for his condition; i.e.; his
condition was not induced through any fault of his

1. 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.

2. 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.

 If it 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 910- then the defendant is in a state
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.

3. 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 self-induced 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 victim.

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
brother’s 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 bystander’s omission to act.

However an omission may give rise to criminal responsibility in

certain circumstances; these circumstances largely being:

(i) Where statute either expressly or impliedly imposes

liability for a failure to Act and ;
(ii) where a person is under duty to act arising at common
law or under statute by virtue of the following:

1. the relationship between persons, certain persons are

liable to act;
 2. contractual relations;
3. voluntarily assuming responsibility for another person’s
care;
4. creating a dangerous situation.

N.B. These examples are the more common examples and are
not meant to be exhaustive as once it can 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

1. Re: By virtue of relationship between persons

As noted in the Text, Criminal Law by Peter Seago (3rd 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.

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.

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 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 brother’s keeper.

Where a person voluntarily assumes responsibility for another’s

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 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

5. 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
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 actions

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…”.

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 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: Ireland was
taken to the UK by police and police were the persons who took
Wizmar to the car on the highway) he /she may still be deemed
to be found guilty by virtue of falling under the particular
prohibition on a strict application of the subject statute.