Basic elements of crime

Actus reus The actus reus (Latin for ‘guilty act’) is made up of all the parts of a crime except the defendant’s mental state. There are several different types of actus reus, for example: In conduct crimes, the actus reus is simply prohibited conduct. For state of affairs offences, the actus reus involves ‘being’ rather than ‘doing’ – it is the circumstances that create the offence, e.g. R v Larsonneur (1933), Winzar v Chief Constable of Kent (1983).

Causation In result crimes, the prosecution must prove a causal link between the defendant’s actions and the prohibited result. First, the prosecution must prove factual causation – did the defendant’s actions cause the harm as a matter of fact? The test is the ‘but for’ test: but for the defendant’s criminal action or omission, would the victim have suffered harm? If the answer is no, the defendant is criminally liable. If something else is the cause of the damage, the defendant is not liable, as in the case of R v White (1910). The test for legal causation is whether the defendant’s conduct made a ‘significant contribution’ to the result (the de minimis rule).

Chain of causation The chain of causation may be affected by several things: Actions of the victim may break the chain of causation, but only if they are unreasonable (R v Roberts, 1978). Actions of a third party may break the chain of causation, but only if they are reasonably foreseeable (R v Pagett, 1983). If the victim has received negligent medical treatment, this will not break the chain of causation unless it is ‘palpably wrong’ (R v Jordan, 1956). Switching off a life-support machine will not break the chain of causation (R v Malcherek and Steel, 1981). The ‘thin-skull’ test: if some pre-existing weakness or medical condition of the victim makes the result of an attack more severe than it would be ordinarily, the defendant cannot argue that the chain of causation has been broken (R v Blaue, 1975).

Voluntary conduct The general rule is that in order to be liable, the defendant’s conduct must be voluntary, e.g. Leicester v Pearson (1952).

Omissions An omission is a failure to do something. The general rule in criminal law is that a person is not usually liable for his or her omissions unless under a specific duty to act. There are different circumstances that will give rise to a duty to act: Duty arising from specific relationships, e.g. parents have a duty to look after their children and may be prosecuted if they fail to do so (R v Gibbins and Proctor, 1918). Duty arising through a contract, i.e. if a defendant is under a contractual duty to act and fails to do so, he or she may be liable if others are likely to be injured as a result (R v Pittwood, 1902). Duty arising from public office (R v Dytham, 1979). Voluntary assumption of a duty (R v Stone and Dobinson, 1977). Duty arising from dangerous prior conduct (R v Miller, 1983).

Mens rea Mens rea is Latin for ‘guilty mind’ and concerns the criminal intention of the defendant when the actus reus is committed. Along with the actus reus, it is a necessary requirement of most criminal offences – except those classed as strict liability. There are several types of mens rea, and different crimes have different mens rea requirements. Two of the most common types of mens rea are intention and recklessness.

Intention Many crimes require that the defendant had the necessary intention when committing the offence. It is a subjective test that requires the court to establish what the defendant was actually thinking. Intention is a word in common use, but it has two distinct meanings in the context of mens rea: direct intention and indirect (oblique) intention (R v Moloney, 1985, R v Hancock and Shankland, 1986, R v Nedrick, 1986 and R v Woollin, 1998).

Direct intention Direct intention means that the defendant set out to achieve a particular result or consequence. It is sometimes explained by saying that the defendant foresaw a particular result as a certainty and wanted to bring it about. It was defined in Moloney as ‘a true desire to bring about the consequences’. An example would be where a defendant shoots the victim in the chest because he or she wants to kill him or her. It is immaterial whether or not the desired result is achieved, since inchoate offences are still possible, e.g. attempted murder.

Indirect/oblique intention (1) Sometimes a defendant will claim that he or she did not intend the result of his or her actions and indeed did not want it to occur. If this is so, the defendant is not guilty and must be acquitted. The problem occurs, however, when the result was virtually certain to occur, although not desired for its own sake, and the defendant went ahead with his or her actions anyway.

Indirect intention (2) An example of indirect intention might be where a terrorist blows up a plane in order to kill one of the passengers. The terrorist may claim that he or she did not want to kill any of passengers other than his or her intended target, but by blowing up a plane, it is a virtual certainty that all the passengers will be killed. The defendant could therefore be said to have intended their deaths if he or she knew that they were virtually certain to occur and despite recognising this was determined to continue.

Recklessness Another common type of mens rea is recklessness, which covers the situation where a defendant takes an unjustifiable risk. As with intention, it is a subjective test, and the defendant must recognise the risk that he or she is running. Recklessness was defined in the case of R v Cunningham. There were previously two different types of recklessness, subjective and objective, but the objective form is now extinct following the case of R v G and Another (2003).

Transferred malice Under this doctrine, if the defendant with the mens rea of a crime performs the actus reus of the same crime, the mens rea or malice is simply transferred to the actual victim. This ensures that the defendant can be found guilty, even though the actual result was an unintended one, e.g. R v Latimer (1886) and R v Pembliton (1874).

Contemporaneity: continuing act The general rule is that to be guilty of a crime, a defendant must have the actus reus and mens rea at the same time. In some circumstances, this could lead to some criminals being acquitted, so the courts have developed ways of dealing with such cases. In situations where the actus reus comes first, the courts apply the ‘continuing act’ doctrine, where the actus reus is stretched over time to meet the point where the defendant had mens rea, e.g. Fagan v MPC (1969).

Contemporaneity: one transaction In some cases, the mens rea may come first. In this situation, the courts apply the ‘one transaction’ doctrine. This can occur when the defendant hits the victim and knocks him or her unconscious. The defendant might assume that the victim is in fact dead rather than unconscious and then try to dispose of the body. The victim is then actually killed during the disposal process, e.g. Thabo Meli v R (1954). Since it is all part of the same series of events, it is held to be a single transaction and the defendant will be guilty if he or she had both actus reus and mens rea at some point.

Strict liability There is no requirement to prove mens rea in strict liability offences – they are complete when the defendant performs the actus reus, e.g. Callow v Tillstone (1900). Types of offence include blasphemous libel (Lemon v Gay News, 1979), regulatory offences (Smedleys v Breed, 1974 and Sweet v Parsley, 1970) and cases involving public welfare (Harrow LBC v Shah, 1999). In the case of Gammon Ltd v Attorney General of Hong Kong (1985), the courts gave guidance as to when a crime would be regarded as one of strict liability.

Evaluation of strict liability Advantages of strict liability include: encouragement of high standards of care no need to prove mens rea, so easier to obtain convictions punishments are small it acts as a deterrent Disadvantages of strict liability include: injustice too easy to obtain convictions some strict liability crimes incur a large penalty it is not always a deterrent sentencing is more difficult

Absolute liability If an offence is one of absolute liability, the defendant will be liable if he or she performed the actus reus. Unlike strict liability, the prosecution does not need to prove that the defendant was acting voluntarily, so even an involuntary act would incur liability. Few offences fall into this category, and those that do must be clearly defined as such.

Murder

Lesson Objectives State the definition of murder Explain the actus reus of murder Explain cases that illustrate the actus reus of murder Explain the issues and rules with respect to causation and murder Apply the rules to a given situation

Murder Is an example of unlawful homicide Homicide is the killing of one human by another It can be lawful or unlawful (when is it lawful?)

Coke’s definition ‘Murder is when a man of sound memory, and of the age of discretion, unlawfully killeth within any country of the realm any reasonable creature in rerum natura under the king's peace, with malice aforethought, either expressed by the party or implied by law, so as the party wounded or hurt die of the wound or hurt, within a year and a day after the same.’ Which part is the actus reus? Which part is the mens rea?

Murder Actus Reus

Actus reus Murder is committed when a person unlawfully kills a human being under the queen’s peace. The victim must be a human who is born and not dead. The rules on factual and legal causation apply – the defendant must cause the death of the victim. The old rule that the victim must die within a year and a day was abolished by the Law Reform (Year and a Day Rule) Act 1996.

The definition Murder is a common law offence The definition has changed a little over the last couple of centuries The modern definition is the ‘unlawful killing of a human being under the Queen’s peace with malice aforethought’ Can you pick out the actus reus and mens rea?

Actus reus may include Conduct: An act or omission, in murder the killing Circumstances: Which surround the act, in murder that it is unlawful, under the Queen’s peace, and of a human being Consequences: For ‘result’ crimes there must be a certain consequence, for murder the act or omission must cause death So, the actus reus of murder is the killing (conduct) which is unlawful and of a human being, in peace time, (circumstances) and which results in death (consequence)

Murder: A recap of what’s needed Unlawful act or omission A death of a human results The act was done with malice aforethought The act caused the death

Act or omission Most crimes require an act An omission cannot usually make someone guilty of an offence There is no ‘good Samaritan’ rule as there is in France The exception is where there is a duty to act

Omissions What cases do you know where an omission to act resulted in a criminal charge? Should there be criminal liability for not acting?

Omission and murder Many of the cases on omissions were manslaughter (Stone & Dobinson) or other crimes (Miller, Dytham) Can you think of one where the charge was murder? Gibbins & Proctor was murder because there was evidence they acted with intent

Unlawful Can you think of any situations when killing would be lawful? Until the mid-sixties when capital punishment was abolished, killing by hanging was legal (by the state) Self-defence may make a killing lawful

Human being Although this seems obvious – there are grey areas A foetus – when does it become a human being? See A-G’s Reference (No 3 of 1994) Someone who is in a coma and brain dead – when do they cease to be a human being? It would most likely be murder for a relative to end the life of someone on life support, but a doctor can turn the machine off A positive act, such as giving a lethal injection, would be murder. In Airedale NHS Trust v Bland turning the machine off was treated as an omission (not providing food and medication) rather than a positive action Human being

It is not the act, but the result that is important in ‘result’ crimes like murder and the offences against the person where a certain result is part of the AR Example: A fight could result in a charge of: Assault – if the victim is scared Battery – if the victim is touched Actual Bodily Harm - if the victim is harmed in any way Grievous Bodily Harm - if the victim is seriously harmed Manslaughter - if the victim dies Murder - if the victim dies and the killer acted with intent Consequences

Activity Page 3 activities

Causation As murder is a ‘result’ crime, the main issue with the actus reus is whether the act or omission causes the result, i.e. death This is an important issue in all result crimes These include the offences against the person The cases will be important for both areas Both factual and legal causation must be proved Can you think of a case on factual causation?

Factual Causation The death would not have happened but for the conduct of the defendant

Compare the 2 cases White (1910) Facts: Law: Pagett (1983) Facts: Law:

White & Pagett In White D put poison in his mother’s drink She had a heart attack before she drank it ‘But for’ his act she would NOT still be alive His act did not cause her death In Pagett, D held a girl in front of him as a human shield He then fired at the police The police fired back and she was killed ‘But for’ his act she would still be alive His act did cause her death

Legal Causation Legal causation requires the act to be the operating and substantial cause of death

If the chain of causation is broken, then there is no liability for unlawful homicide. This does not mean no liability for the original act though.

Legal causation D’s act must be more than minimal. This called the de minimus rule Now acceptable to say it is more than a slight or trifling link - Kimsey D’s act must make a significant contribution - Cheshire Legal causation is based on the ‘chain of causation’ There may be an intervening act which breaks it

‘Taking the victim as he finds him’ Thin skull rule – Blaue (1975) – blood transfusion

Intervening acts If something has occurred after the original act or omission, it may be argued that the chain of causation is broken If it is the victim’s own act then two questions arise: Does the thin skull rule apply? See Blaue Was the victim’s act foreseeable? See Roberts and compare it to Williams You can also use Pagett – it was foreseeable the police would shoot back

Medical treatment The original act may not kill but may cause the victim to require treatment If that treatment then causes the death it has to be decided whether it breaks the chain Compare Smith and Jordan The main law now comes from Cheshire Medical treatment will not usually break the chain unless it is ‘palpably wrong’ What were the facts in Cheshire?

Cheshire In Cheshire the court held: As long as D’s act was a ‘significant and operative’ cause of the death it need not be the sole cause Hospital treatment would only break the chain if the jury decide it ‘was so independent of his acts, and in itself so potent in causing death, that they regard the contribution made by his acts as insignificant’ Thus the question is did the original act make a ‘significant’ contribution to the death?  It need not be the main cause but must be more than minimal Cheshire

Summary Is there an act or omission An omission may, rarely, suffice Gibbins & Proctor Did this cause the death? Factually? Use the ‘but for’ test, White Legally ? Look at the chain of causation It won’t be broken by a foreseeable act or if the thin skull rule applies Roberts Blaue The original act need not be the sole cause, but must be more than minimal Nor if the original act made a significant contribution Cheshire 46

Activity Page 6 activities

Your Task Create a chart that shows each step of the way with regards to the actus reus of murder, omissions, reasonable person, causation, taking the victim as you find them, intervening acts (victim or someone else) and use cases to demonstrate.