THE UNIVERSITY OF TECHNOLOGY, JAMAICA

THE FACULTY OF LAW

CRIMINAL LAW I

UNIT 4

LECTURE 4 – ACTUS REUS

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A. ELEMENTS OF A CRIME

There can be no criminal liability unless a criminal act exists (ACTUS

REUS). By act we mean a positive act or an omission. In conjunction

with the actus reus, there can be no liability for a crime unless a guilty

mind is established (MENS REA). The mens rea may take the form of

intention, recklessness or negligence.

Note for example the analogy used by the learned authors of your text,

Smith & Hogan’s Criminal Law:

“Suppose I take your bicycle from the rack in which you left it,

ride it home and put it in my garage. Have I stolen it? The

question cannot be answered without considering my state of

mind at the time of the taking. Perhaps I mistook your bicycle

for my own similar model which I had left in the same shed. Or

perhaps I mistakenly supposed that you had said I could

borrow the bicycle; or though I knew it was your bicycle and

that I was taking it without your consent, I only intended to

borrow it for a day or two. In none of these cases have I stolen

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it. But if I knew it was your bicycle and that I did not have your

consent and I dishonestly intended to keep it permanently for

myself, I am guilty of theft. The act is the same in every case.

The difference is the state of mind with which the act is done.

(Smith & Hogan, Criminal Law Cases and Material, 7th Edition, pg 3.)

Based on the above, it is clear to see that in order to qualify as a crime

a guilty act as well as a guilty mind is required in most circumstances

for it is a fundamental principle of English Law that an Act does not of

itself constitute guilt unless the mind is guilty – Actus non facit recum

nisi mens sit rea. Generally the two must coincide; that is, there should

be coincidence of actus reus and mens rea.

In the case of Haughton v Smith (1975) AC 467 pages 491- 2 it was

stated:

“An act does not make a man guilty unless his mind be also

guilty.”

In light of the foregoing, when one is trying to ascertain whether or not

a crime has been committed, it is incumbent upon that person to prove

that both the actus reus and mens rea are present. This is necessary

for all crimes save and except strict liability offences which only

require the actus reus as set out by statute and does nor require the

proof of any mens rea.

That being said, the question then arises as to what exactly is the

meaning of “actus reus” and “mens rea” and what do these two terms

cover in Criminal Law.

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Note that these notes will focus specifically on actus reus while notes

on Mens rea will follow in the next week)

ACTUS REUS

It is customary to separate crime into actus reus and mens rea. As

previously explained, the Actus reus is the prohibited conduct,

omission, consequence or state-of-affairs. Any fault element, such as

intent or recklessness, in respect of it is the mens rea (state of mind).

The Actus reus is the external manifestation of the offence. It includes

includes all the elements in the definition of the crime except the

accused's mental element. Actus reus is a part of the cardinal principle

of criminal law that conduct does not make a person legally guilty

unless it is accompanied by a blameworthy state of mind. Note the

Latin adage: "actus non facit reum, nisi mens sit rea" This expression

is derived from Coke's brocard in his Institutes, Part III (1797 ed.), c.1

fo.10: "et actus non facit reum, nisi mens sit rea"

"No act is punishable unless it is performed with a criminal mind."

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, and in some limited instances a state of affairs.

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” as the term

includes:

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i. Acts

ii. Omissions

iii. A criminal state of affairs

We will examine each form of the Actus Reus in turn:

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. When

a person is contending that he committed an act involuntarily, he is

saying that he was in an automated state. In these instances where it

can be proven, the defence of automatism is available to the accused

and where successfully pleaded may lead to a complete acquittal.

AUTOMATISM

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.”****

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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

is unintentional or its consequences are unforeseen. Where a

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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 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

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 be 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 defence of insanity but not a

defence of 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

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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

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.

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.

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If 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 defence is in 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.

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

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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 accused.

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.

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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:

(a) the relationship between persons, certain persons are

liable to act;

(b) contractual relations;

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(c) voluntarily assuming responsibility for another person’s

care;

(d) creating a dangerous situation.

N.B. These examples are the more common examples and are not

meant to be exhaustive as once it can be 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

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.

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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.

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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 the 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

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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

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

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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 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…”.

He further stated:

“…where the accused is initially unaware that he has done an act that

in fact sets in train events, which, by the time the accused becomes

aware of them, would make it obvious to anyone who troubled to give

his mind to them that they present a risk that property belonging to

another would be damaged, a suitable direction to the jury would

be that the accused is guilty of the offence if, when he does

become aware that the events in question have happened as a

result of his own act, he does not try to prevent or reduce the

risk of damage by his own efforts or if necessary by sending

for help from the fire brigade and the reason why he does not

is either because he has not given any thought to the

possibility of there being any such risk or because having

recognized that there was some risk involved he has decided

not to try to prevent or reduce it.

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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

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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: Mrs. Larsonneur was taken to the UK by police

and police were the persons who took Winzar to the car on the

highway) he /she may still be deemed to be found guilty by virtue of

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falling under the particular prohibition on a strict application of the

subject statute.

Note:

1. Students must read the relevant chapters on ACTUS REUS

from their respect editions of the text and case book

2. Students MUST read the full text of the cases identified.

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