1) Issues of Criminal Liability: Actus Reus, Omissions, Causation, Mens

Rea, Criminal Liability and Offences of Strict Liability

Actus Reus and Omissions

The Actus Reus is the physical element of a crime
It may be an act or a failure to act (an omission)
It must be voluntary on the part of the defendant
For some crimes the Actus Reus must result in a consequence
o E.g. Assault occasioning Actual Bodily Harm

Normal Rule for omissions is that this cannot make a person

guilty of an offence
No Good Samaritan Law in this country
6 Exceptions where there is a duty to act:
1. A statutory duty
2. A contractual duty
R v Pittwood (1902) A railway crossing keeper failed
to shut the gates resulting in a person being struck by
a train
3. A duty because of a relationship
R v Gibbins and Proctor (1918) D and Partner
responsible for Ds children. Singled out one girl and
starved her to death.
4. A duty taken on voluntarily
R v Stone and Dobinson (1977) - Stones sister came to
live with Ds. Dobinson occasionally helped to wash
and feed the V, she died of malnutrition.
5. A duty through ones official position
R v Dytham (1979) - D was a police officer who
watched a man being kicked to death before going
off duty and doing nothing to help.

6. A duty which arises because the D has set a chain of events in

motion
R v Miller (1983) - D was squatting, slept with a
cigarette, set fire to mattress. He moved to another
room without getting help. Charged with Arson.
AO2 Points on the Law of Omissions:
Should there be a Good Samaritan law and wider liability?
o Yes: Modern, moral responsibilities
o No: Could do more harm than good, could be abused to
commit crime
There are difficulties in deciding when a duty does and does not
exist
o Decided by judge, if there is sufficient evidence, and jury,
if it exists and has been broken
o Makes the law able to expand for new situations
o Creates uncertainty in the law
Should a person really be liable for failure to act when they have
assumed a duty?
o Is it harsh that someone who accepts someone into their
home is then responsible?
o Adults generally held to be responsible for their own
lives
o What if the adult is vulnerable?
Is there a justification for the statutory imposition of duties?
o Public Policy Reasons
Causation
Where a consequence has to be proved, the prosecution must
show that
o It was the factual cause
o It was the legal cause
o There was no nouvus actus interveniens

Factual Causation may be defined using the but for test: Would
the defendant have been harmed but for the defendants actions?
(Yes, Not Guilty, No, Guilty)
R v Pagett (1983) D used pregnant girlfriend as human
shield during police gunfight. But for his actions she
wouldnt have died guilty.
Legal Causation is used where more than act contributes to the
consequence. The D is guilty if his act is more than a slight or
trifling link
R v Kimsey (1996) D lost control of car in a high speed
car race with a friend. Other driver died. Act wasnt
substantial cause but more than minimal.
What constitutes a break in the chain of causation?
The Thin Skull Rule: The D must take the victim as he finds him:
even if the V has a peculiarity which makes their injury more
serious, the D will be liable for that more serious injury (no n.a.i)
R v Blaue (1975) V stabbed and needed a blood
transfusion to save her life but was a Jehovahs Witness.
Refused, died, D convicted of murder.
Medical Treatment: Unlikely to break the chain of causation
unless it is so independent of the Ds act as to make it irrelevant
(possible n.a.i)
R v Smith (1959) D stabbed V with a bayonet. On the
way to hospital he was dropped, and at the medical
centre was given wholly inappropriate treatment to his
wound. It substantially affected his chances of survival
but wound was substantial & so D was liable for his
death.
R v Jordan (1956) The V had been stabbed in the
stomach. His wounds were healing well, but the Dr
prescribed a large dose of a drug to which he was allergic

(without checking notes) and he died. The wound was no

longer a significant cause for his death.
Life Support Machines do not count as a n.i.a:
R v Malcharek (1981) D stabbed his wife; she was
shown to be brain dead and the life support was switched
off. D was charged with murder: turning off a life support
was not held to be an n.i.a.
Fright or flight, Victims own act may be an n.i.a if it is
foreseeable:
R v Roberts (1971) V jumped from a car to avoid the Ds
sexual advances and was injured. D was liable for her
injuries.
R v Williams (1992) Hitchhiker jumped from a car to
avoid being stolen from. Argued act hadnt been
foreseeable and D was not guilty.

AO2 Points on the Law on Causation

What is meant by more than a slight and trifling link?
o Vague and Difficult to define
o Different standards applied to different cases
Should D really be liable where the thin skull rule applies?
o Harsh
o Public Policy
Mens Rea
Mens Rea is the mental element of an offence
All offences have their own mens rea except those of strict or
absolute liability
There are different levels of mens rea:
1. Intention
a. Direct
D intends to commit a crime for that
consequence to occur.

b. Oblique
Here the D intends one thing but the
consequence is another.
What degree of probability is required before an
undesired consequence becomes an intended
one?
R v Maloney (1985) D and Step Father
were drunk. Had been messing around
with a shotgun and step father killed.
Intention could be inferred if death was a
natural consequence of the Ds action
and the D foresaw that consequence.
R v Hancock and Shankland (1986) Ds
were striking miners. Tried to prevent
another miner from going to work by
pushing concrete off a bridge. Killed the
driver. Rejected the Maloney approach
and said the matter was for the jury.
R v Nedrick (1986) D had a grudge
against a woman. Set her house alight
and a child died in the fire. Death, GBH
must be a virtual certainty.
R v Woollin (1998) D threw his 3 month
old baby towards a pram, baby died.
Repeated the Nedrick judgement almost
verbatim.
2. Recklessness.
Recklessness is a lower level of mens rea than
intention
It is based on the subjective approach:
R v Cunningham (1957) D tore a gas
meter from a wall to steal money from it.

The resulting gas leak caused a next door

neighbour some harm. N.G He hadnt
intended to cause the harm and hadnt
taken a risk he knew about
This version of recklessness was ruled not to exist
from 1981 2003, when another form took its
place, based on the objective approach:
Metropolitan Policy Commissioner v
Caldwell (1981) D got very drunk and
decided to set fire to a hotel, owned by
someone whom he had a grudge against.
D claimed he was so drunk he hadnt
realised people might be injured. Based
on how what reasonable person would
do.
This version of recklessness was held to be very
unfair as it did not take into consideration any
peculiarities of the D. The matter was finally
settled in 2003, with a return to the subjective
approach:
R v G and Another (2003) 2 young boys
set fire to some newspapers. The fire
spread causing significant damage to
some nearby shops. The HoL overruled
Caldwell.

3. Negligence
A failure to meet the standards of the reasonable
man
Only mainstream offence for which it is used is
manslaughter, for which there must be a very
high degree of negligence (see R v Adomako
(1994)

4. Knowledge
Stated in some statutes as the necessary mens rea
D must have knowledge of certain facts to have the MR
Sweet v Parsley (1969) D let out a cottage to some
students who smoked cannabis there. She was
arrested for managing a property used for such
things, found not guilty because she hadnt known
about it.
5. Transferred Malice (not an element of Mens Rea, but worth
discussing)
The idea that the D may be guilty if he intends to commit
a similar crime but against a different V:
R v Latimer (1886) D aimed a blow at a man with his
belt. The belt hit the woman stood next to the
intended target. Guilty of assault even though hed
intended to hit someone else.
However the actus reus must be the same for both the
intended crime and eventual crime:
R v Pembilton (1874) D threw a stone. Intended for
it to hit people, it actually broke a window. Actus
Reus wasnt interchangeable, not guilty.

AO2 Points on the Law on Mens Rea

[With respect to Oblique Intention] the difficulties the
courts have faced in deciding foresight of consequences
has resulted in several layers of confusing case law and
no definitive result
Nedrick test favours the D as it is an extremely high
standard of proof

Forming Criminal Liability

For an offence to take place, the actus reus and mens rea must
coincide in time.
Thabo Meli v R (1954) Ds attacked a man and, believing
theyd killed him, pushed him off a cliff. In fact he was still
alive but died from exposure when unconscious at the
bottom of the cliff. The Ds were found guilty as in a
series of acts the MR and AR were found to have mixed.
When there is a continuing act for the Mens Rea and at some
point the Mens Rea exists during that time, the two coincide:
Fagan v Metropolitan Police Commissioner (1986) D
was told by a police officer to park in a particular place
and accidentally drove onto the policemans foot. When
the policeman asked him to remove it, D left it there for
several minutes. His decision not to remove the car was
the moment of the Mens Reas coincidence with the AR.
Absolute and Strict Liability
These are offences that do not require the Mens Rea for at least
part of the Actus Reus
Nearly all strict liability offences must prove that the act was
voluntary. Those that dont are offences of Absolute Liability:
R v Larsonneur (1993) D was ordered to leave the UK as
a foreign alien. She went to Eire but was sent back here
and found guilty of unlawfully being in the country
despite having been forced to do so.
All offences start out with a presumption of mens rea. Where the
courts then decide it isnt, for at least part of the actus reus, the
offence becomes one of Strict Liability:
R v Prince (1875) D took an unmarried girl under 16 out
of her fathers possession, but genuinely believed she
was 18. M.R for the knowledge of age section of the
offence wasnt required. Guilty.

There must be no defence of due diligence available:

Harrow LBC v Shah and Shah (1999) Ds owned a
newsagent. Frequently reminded staff to check age when
selling lottery tickets. 13 year old slipped through net,
guilty despite making every effort to avoid situation as no
defence of DD in act.
There must be no defence of mistake available
Cundy v Le Cocq (1884) Ds pub sold alcohol to a drunk
person. D hadnt acted drunk or shown any signs of
intoxication and no one had realised but no defence of M
in act so guilty.
Approximately half of all statutory offences of strict liability
What happens in an act is silent to Mens Rea?
o The Gammon Tests are used (Gammon (Hong Kong) Ltd
v Attorney General of Hong Kong):
1. There is always an initial presumption of MR
2. The presumption may be displaced if it is the
clear or necessary implication of the statute...
3. ...or if the statute deals with an issue of social
concern
4. The presumption is particularly strong if the
offence is truly criminal in nature
5. S/L should only apply if it will help to enforce
the law by encouraging greater vigilance

AO2 Points on the Law of Strict and Absolute Liability

Absolute Liability is extremely harsh, imposing liability on people
who arent really blameworthy
Parliament doesnt seem to have a sensible pattern of when they
do or do not apply the defences of due diligence or mistake in
legislation
Strict Liability may be imposed where the D wasnt even aware of
a risk

Does it really improve standards? If precautions against a risk are

more expensive than a possible fine, will the precautions really be
taken?
Strict Liability may be imposed even where there is a severe social
stigma, for example
o R v G (2008) D was a 15 year old boy who had
consensual sex with a 12 year old girl who admitted that
she had told him she was also 15. Guilty of statutory rape
and put on the sexual offenders register.