Actus reus is a Latin term meaning guilty action. The P have to prove the D committed the physical conduct of the crime. However, in law, not only an act but also an omission can be described as the actus reus of a crime.
First of all an act must be voluntary. In Hill v Baxter, Lord Goddard argued: “Suppose a driver had a stroke or an epileptic fit … he could not be said to be driving. A blow from a stone or an attack by a swarm of bees” would be similar. His driving would no longer be voluntary and no offence would have been committed. This was applied in R v Whoolley (1997), a case in which an HGV driver crashed into the back of slow moving traffic on the M62. The court accepted that his sneezing fit rendered his actions involuntary.
There is an exception to this general rule. Sometimes people can be found guilty of a criminal offence for being in the wrong place, even though they had no control over their actions. These are known as “state of affairs” crimes.
R v Larsonneur (1933) CA
Mlle Larsonneur was a French subject. When her permission to remain in the UK expired, she went to Ireland. However, she was immediately deported from Ireland and brought back to Holyhead by the Irish police. She was handed over to the English police on arrival, and charged under the Aliens’ Order 1920 with being “an alien to whom leave to land in the United Kingdom had been refused”. The CA decided that she had been rightly convicted, even though she had been brought to the UK by force.
Winzar had been taken into hospital on a stretcher but then discharged for being drunk. When he was found slumped in a seat on a hospital corridor, the police were summoned to evict him. They took him into the street outside. They then placed him in their police car and charged him with “being found drunk on the highway” contrary to Section 12 of the Licensing Act 1872.
The general rule in English law is that there is no liability for a failure to act. For example, we can watch a blind child walk over the edge of a cliff and are under no legal duty to try to stop him, even if we are close enough to do so. There is no general ‘Good Samaritan’ law where a D would commit a crime for not doing what he should of, as is the case in France. But there are exceptions where a crime will have been committed because the defendant failed to act.
(a) A duty arising from contract
Where a person is under a contract to act, his failure can be a criminal offence.
R v Pittwood (1902)
Pittwood was a gatekeeper on the Somerset and Dorset Railway. He had to keep the gate shut whenever a train was passing between 7 a.m. and 7 p.m. Having opened his gates to allow a cart to pass over the line, he forgot to close it again before going off to lunch. A few minutes later a passing train killed the driver of a hay cart as it was crossing the line. He was convicted of manslaughter: it was his job to keep users of the line safe.
(b) A duty owed by parents to their children
Parents are expected by law to look after their children. This includes feeding them.
R v Gibbins and Proctor (1918) CA
The father of a child and the woman he lived with were convicted of murder when the child died as a result of their failure to feed her. Although the child was not the woman’s, she had assumed responsibility for it by living with the man and eating food provided by him.
(c) A duty voluntarily undertaken
A duty of care may also exist where there the defendant has voluntarily taken responsibility for the wellbeing of a person.
R v Stone and Dobinson (1977) CA
Stone was 67 years old, partially deaf, nearly blind, and of limited intelligence. He lived with his girlfriend, Dobinson, who was described as inadequate. Living with them was had Stone’s sister, Fanny, who suffered from anorexia. In the spring of 1975 Stone and Dobinson made an unsuccessful attempt to find Fanny’s doctor, and in July a neighbour gave her a bed-bath. By this time Fanny was bed-ridden and lying in her own excrement. She died in August. The pathologist’s report stated that she had been in need of emergency medical care for days, if not weeks, before her death. Stone and Dobinson were convicted of gross negligence manslaughter. They had assumed responsibility for Fanny as her carers. Their failure to help or get help was criminal.
(d) A duty to limit accidental harm
Where a person causes accidental damage, he is under a duty to take reasonable steps to limit the spread of the damage.
R v Miller (1983)
While squatting in a house, Miller fell asleep with a lighted cigarette. The mattress on which he was lying caught fire. He was woken by the fire, but, rather than attempting to put it out, he went into another room and fell asleep. The house caught fire and was badly damaged. He appealed against his conviction for arson, arguing that a failure to act is an omission and cannot therefore establish the actus reus of the offence. He lost: it was possible to create liability by failing to remedy a dangerous situation that one has oneself created.
(e) A duty to the public
A policeman has a duty of care as the holder of a public office. His duty is to the general public.
R v Dytham (1979) CA
Dytham was a police officer on duty in uniform near a club where a man was thrown out by a bouncer and kicked to death. He took no steps to intervene, but drove off. He was convicted of misconduct whilst acting as an officer of justice. He appealed on the ground that a failure to act does not create criminal liability. He lost.
(f) A duty arising from a statute
Liability will arise where a statute has imposed a duty to take positive action. This most frequently occurs in relation to road traffic offences. For example the Road Traffic Act 1988 imposes a number of duties to act. S7(6) makes it an offence to fail to provide a specimen when required to do so. Similarly, it is an offence not to wear a seat belt.
4. The Chain of Causation
In result crimes such as murder it is necessary to show that the unlawful act of the accused actually caused the harm to the victim. The law operates a two-stage test. It asks first whether the accused in fact caused the harm (the factual test), and, if so, whether he is liable in law (the legal test).
(a) The Factual Cause
This uses the “but for” test. In this first test the court will consider whether the harm would have happened “but for” the unlawful action of the accused.
R v White (1910) KB
White put some potassium cyanide into his mother’s wine glass, intending to kill her as he would inherit under her will. In fact, the dose was too small to succeed. Nevertheless, her body was found soon afterwards on the settee in her living room. The full glass was next to her, with some of the poisoned drink still in it. Medical evidence showed that she had died of heart failure, not of cyanide poisoning. Nor was there any link between the poison and the heart attack.
It was decided on appeal that he could not be convicted of murder as he had not caused her death.
R v Pagett (1983) CA
While attempting to escape from arrest, the defendant shot at the police. In their return fire the police hit and killed the defendant’s girlfriend who was being used as a human shield. The question before the CA was whether it was reasonably foreseeable that the police would return fire in such circumstances. If it was, there would be no break in the chain of causation and the defendant would be liable. It was decided that the action of the police was foreseeable, and Pagett had therefore caused his girlfriend’s death.
(b) The Legal Cause
Once it has been established that the accused is the factual cause of the harm suffered by the victim, it then has to be shown that he is also the legal cause. This makes sure that people are not found guilty when they are not to blame for the end result. The court asks whether the defendant’s act continues to make a significant contribution to the end result.
R v Smith (1959) CMCA
A barracks room fight took place between soldiers from different regiments. The victim suffered stab wounds. While being taken for treatment he was twice dropped, and when he arrived at the hospital he was given inadequate treatment. An hour later he died of his stab wounds. Smith was convicted of murder. His appeal against conviction was rejected: the original wound was still an operating and substantial cause at the time of the death. In the words of Lord Parker: “Only if it can be said that the original wound is merely the setting in which another cause operates can it be said that the death did not result from the wound.”
However, the chain of causation may be broken, either by the victim or by some unforeseeable event.
(i) by the victim
The defendant will not be the legal cause if he can show that the victim caused the end result himself. However, this will only succeed if the victim’s reaction was totally unreasonable.
The victim jumped out of a car travelling over 20 mph after the driver, who was giving her a lift to a party, told her to undress and grabbed her coat. He also told her that he had beaten up other girls who had refused. The question before the CA was whether he was responsible for her injuries. He was responsible as the victim’s reactions were reasonable.
Similarly, the chain of causation is not broken by any particular condition of the victim that makes him more susceptible to harm. Where the victim has a particular susceptibility, for example a thin skull, that makes him particularly susceptible to harm, the defendant must “take his victim as he finds him”. In other words, he is responsible for all the harm that he causes, even harm he couldn’t have foreseen.
A woman had a thyrus gland disorder. As a result she couldn’t cope with stress and exertion. During an argument with her husband she ran out of their home into the street, followed by her husband shouting threats against her. She collapsed and died. The husband argued that she would not have died but for her medical condition. The court held him responsible for her death as his actions had accelerated it.
This rule applies not only to the victim’s physical condition.
R v Blaue (1975) CA
Jacolyn Woodhead was stabbed by the defendant. Because of her religious beliefs as one of Jehovah’s Witnesses she refused a blood transfusion which doctors said could have saved her life. The defendant appealed against his conviction for manslaughter (not murder because he suffered from diminished responsibility), arguing that the victim herself was responsible for her death. In the Court of Appeal, Lord Lawton rejected this view, stating that: “It has long been the policy of the law that those who use violence on other people must take their victims as they find them”. This includes their religious beliefs.
(ii) by an unforeseeable event
In cases of bad medical treatment the accused will rarely escape liability. However, an example of a case where the defendant succeeded is:
R v Jordan (1956) CA
Jordan’s victim was admitted to hospital for a stab wound. While being treated he was subjected to a series of grossly negligent treatments and subsequently died. At the time of his death the initial stab wound had nearly healed. Jordan appealed against his conviction for murder, arguing that it was not the stab wound but the bad medical treatment that had caused the death of the victim. He won his appeal: there had been a series of medical errors, and these had been the sole cause of his victim’s death. The court said that the medical treatment was “palpably wrong”.
The judgment in Jordan will rarely be followed: it seems likely that only cases of grossly bad medical treatment will be treated as not reasonably foreseeable. Treatment that is merely bad or incompetent is sufficiently common to be regarded as reasonably foreseeable.