General elements of liability Elements of a crime ACTUS REUS

1. General elements of liability Elements of a crimeACTUS REUS

2. Aims and Objectives By the end of the session the student will be able to: • UNDERSTAND that there are different elements to a crime. • CLEARLY EXPLAIN the definition of actus reus and that this can be fulfilled by a voluntary act, a state of affairs or an omission. • DISCUSS the situations in which an omission can amount to a crime.

3. Elements of a Crime • Remember that to be guilty of a crime there needs to be two elements present: • Actus reus – the guilty mind/the physical element • Mens rea – the guilty act/the mental element • Actus non facit reum nisi mens sit rea – the act itself does not constitute guilt unless done with a guilty mind. • Once both elements are established, the defendant will be found CRIMINALLY LIABLE.

4. Elements of a Crime • The Prosecution have to convince the Judge or Jury that the defendant is criminally liable. • The burden of proof in criminal law is very high – BEYOND REASONABLE DOUBT • Woolmington -v- DPP (1935)

5. Actus Reus • The actus reus can be: • A voluntary action • An omission • A state of affairs • The actus reus will be different for each crime, e.g. for murder it is unlawful killing but for theft it is the dishonest appropriation of property belonging to another.

6. A Voluntary Act • The defendant must have committed the act or omission voluntarily. • If the act is done involuntarily, the defendant will not be guilty • Hill -v- Baxter 1958 • The courts gave examples of involuntary acts, e.g. reflex actions after being hit on the head with a hammer or being stung by a swarm of bees. • The criminal law is concerned with fault.

7. A State of Affairs • The defendant has not acted voluntarily but has nonetheless been convicted of a crime. • They are ‘being’ rather than ‘doing’ offences. • Larsonneur (1933) • Winzar -v- Chief Constable of Kent (1983)

8. Actus Reus & Consequences • Some crimes must also produce a consequence for someone to have committed the actus reus. • For example, for murder someone has to end up dead. The defendant’s act must have produced the unlawful killing.

9. An Omission (failure to act) • THINK! • You are walking by the river and see someone in the water shouting for help and saying that they cannot swim. Instead of stopping to help, you walk by and the person drowns. • Should you be held liable for their death? • What if you were a trained lifeguard?

10. An Omission • A failure to act does not usually result in someone being found criminally liable in English law. • Stephen LJ: • “It is not a crime to cause death or bodily injury, even intentionally, by any omission.” • However, there are some exceptions to this rule.

11. An Omission – Exceptions to the Rule A person will be held criminally liable to failing to act where: • there is a duty created by statute • they have a contractual duty to act • there is a duty imposed by their official position • they have voluntarily accepted responsibility for another • they have created a dangerous situation • there is a special relationship Number 1 is a statutory duty and the others are common law duties, i.e. created by judges in case law.

12. Duty Created by Statute • Criminal liability is imposed under the ROAD TRAFFIC ACT 1988 for failure to provide a breath specimen when required. • It is also imposed under the CHILDREN AND YOUNG PERSON’S ACT 1933 for failure to send a child to school.

13. Contractual Duty to Act • This may be contained in the person’s contract, e.g. a lifeguard has a duty to act to save people’s lives if they are in the swimming pool when he’s on duty. • Pittwood (1902) Pittwood was a railway employee with responsibility to open and shut the gates on the railway crossing. He failed to shut them and went on his break. A hay cart was driving across and was hit by a train. The driver of the hay cart was killed and Pittwood was found criminally liable.

14. Duty imposed by Official Position • This can be imposed where a person is guilty of misconduct. • Dytham (1979) • An on-duty police officer saw a man being thrown out of a nightclub and being kicked to death by 3 men. He didn’t intervene or get help and walked away from the scene. He was found guilty of misconduct.

15. Voluntary Acceptance of Responsibility for Another • Stone & Dobinson (1977) • Both defendants agreed to care for Stone’s sister, Fanny, who came to live with them. Fanny was anorexic and eventually became bedridden and unable to care for herself. The defendants were elderly and of low intelligence. Although they tried to get some help for Fanny, she eventually died. The court held them guilty of manslaughter as they owed Fanny a duty of care and failed in that duty. • This duty is often linked with the duty that can be imposed by a special relationship.

16. Special Relationship • This is usually created in a parent-child relationship – a parent has a duty to care for their children. • Gibbins and Proctor (1918) • Gibbins, and several of his children from a previous marriage, lived together with his partner, Proctor. The 7 year old daughter was kept separate from the other children and starved to death. The Court held that the Father had a duty to care for his child and Proctor had also taken the responsibility to care for the child. The failure to feed her led to them both being convicted of murder. • Khan (1988) • Drug dealer was found not to have a duty of care to his clients and a manslaughter conviction was quashed.

17. Creation of a Dangerous Situation • Miller (1983) • A squatter had fallen asleep smoking. He woke to find his mattress on fire but instead of putting it out, he got up and moved to another room and went to sleep again. He was found guilty of arson. • Santana-Bermudez (2003) • Policewoman was conducting a search of a suspect. She asked if he had any needles or sharp objects in his pockets. He said no. She put her hand in his pocket and straight onto a needle causing bleeding. He was convicted of ABH. His failure to warn her was sufficient for the actus reus.

18. Involuntary Manslaughter and Omissions • Involuntary manslaughter can be committed either by an unlawful and dangerous act or by gross negligence. • Unlawful and dangerous act manslaughter requires a positive act and cannot by committed by an omission. • Lowe (1973) • Defendant was of low intelligence. He had a 9 week old baby who became ill and died. He said he had told the mother to take the child to the doctor but had done nothing further. He was convicted of manslaughter but this was quashed on appeal because there was no unlawful and dangerous act. • Lowe should have been charged with gross negligence manslaughter which can be committed by an omission because he owed the child a duty of care.

19. Duty of Doctors • Airedale NHS Trust –v- Bland (1993) • Anthony Bland had been crushed in the Hillsborough Stadium disaster and was on a life support machine with severe brain damage and in a persistent vegetative state. After 3 years the doctors applied to the courts for an order to allow them to stop feeding him which would obviously lead to his death. The court held that this was in Bland’s best interests. • Treatment that is in the patient’s best interests is not considered to be an omission so is therefore not the actus reus.

20. Thinking Point • Anthony Bland was allowed to die as there was no hope of any improvement in his condition. • Research the case of Diane Pretty and trace her court battles. • Is there any difference between these two cases? Why do you think the courts arrived at different conclusions?