Tuesday, 12 January 2016

Actus Reus revision summary

The actus reus represents the conduct element of a crime, i.e. the THING which we are not permitted to do. This works in conjunction with the MR, which helps to allocate criminal culpability for an action (as opposed to simply say, negligent action).

Generally an act is required however this is subject to several large caveats. These can be grouped as omissions, third parties and state of affairs offences.

One is only culpable for an omission where there was a pre-existing duty to act (ie if you are employed as a police officer or have assumed responsibility for the care of someone). Some crimes created by statute require an act in their wording and thus cannot be committed by omission, ie under the protection from eviction act. Generally duties arise when one would expect them to: because of statute, contracts, property ownership or assumption. A slightly more unusual category present here is that of "creation of a danger", put forward in the leading case of R v Miller.

In Miller style cases the issue is that the AR and MR are not, at first flush, concurrent. As such the courts have effected a work around in the following form: (1) if the conduct did cause the event, then (2) the mindset of the D is relevant until the end of that event, in this case from ignition to the completion of damage. As such in Miller when the D awoke and saw the fire he had created, his decision to leave without warning people provided an MR which was concurrent with the ongoing AR of arson.

The content of the duty is determined by a jury and is what is thought to be "reasonable". In Stone v adobo son it appears to be suggested that this is "reasonable" in an objective sense, ie discounting the perculiarities of the defendants in the case (in Stone two disabled people failed in their duty to care for a third party).

When it comes to distinguishing between omissions and acts the courts have shown flexibility, especially in medical circumstances. This in Airdale NHS Trust v Bland the withdrawal of treatment for a no-hope patient in a coma was treated as an omission. The judgment contains different reasons for this but in short, Keith stressed that the duty of a doctor was not violated by an omission to treat as existence in a PVS is of no benefit to a patient; Goff characterised the decision as an omission to struggle, this distinguishing it from a lethal injection, and; Mustill pointed out that the initial treatment had been done without the patients permission acting in his best interests. Now there was no chance he would get better the justificatory basis for that non-consensual treatment had gone and thus it should not be continued.

State of affairs cases such as drunk in charge of a motor vehicle can be explained by reference to an earlier act. Questions arise when this act was not voluntary as in the case of Larsonneur.

Third parties also represent an exception to this rule for requiring an act. In some circumstances one can be criminally liable for the actions of a third party.  Examples include vicarious liability for an employer and the doctrine of innocent agency.

If a voluntary act is the first part of an AR, it is also necessary that (for some crimes) it caused a certain thing to happen (ie murder needs to cause death). Causation is generally considered to be a common sense issue. The but for test applies to tell us who can't be blamed. Other that his the question is whether or not the action represented an operating and substantial cause, this has been said to mean anything above negligible. It is possible to have several causes of one death.

The chain of causation can be broken by third parties acts (but not omissions), actions of the victim and acts of g-d. Any third party act muster free, informed and voluntary which renders the ads action no longer substantial and operating. Where the third party is acting in a justified way their action will not meet these criteria. Medical practice (even poor practice) is unlikely to break chain unless it is grossly negligent and the Ds actions is no longer an operating cause. There is no explicit case law ono the omissions of third parties but it is unlikely these can break the chain (a doctor who fails to act under their duty may become an additional cause themselves however).

There are two leading cases on the acts of a victim breaking the chain. In Roberts the question was whether the act of the victim represented a natural consequence of the D's actions. This was modified in Williams and Davis to be whether it was "I the range of responses which might be expected from a V in this situation bearing in mind the peculiar characteristics of the victim."

In Blaue, the second leading case, the opinion was that even regards Religious convictions (ie a desire not to have a life saving blood transfusion, the D must take their V as they find them. It seems that this is not incompatible with the modified Roberts test put forward in Williams. 

Acts of G-d can also break the chain of causation, however this will have to be very extreme. 





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