Actus Reus

AR = the conduct element. Prescribes what needs to be done,

in what circumstance and with what result (but not necessarily
all three).
o Result: V is killed (note that we dont really criminalise
results in themselves, but rather the causation of
results).
o Conduct: in rape: penetration.
o Circumstance: property belongs to another.
All crimes have an AR. It is possible to have missing MR
elements but this is not so for AR.

Omissions
Stephen LJ: It is not a crime to cause death or injury, even
intentionally, by any omission.
This is not strictly true, but we are usually unwilling to
prosecute for omissions:
o Criminal liability for failure to act breaches autonomy.
o It is less burdensome of the law to require someone to
refrain from doing something then it is to oblige him or
her to do it.
Often difficult to distinguish between acts and omissions (e.g.
child accidentally puts hand on Ds genitals in Speck, but D is
guilty of an offence by positive act).
o Note relevance of killing v letting die. Doctors could
turn of life support in Airedale v Bland because it was
allowing nature to take its course. Mustill: the omission
to perform what had previously been a duty will not be
illegal.
EXCEPTIONS:
o Duty to act: can arise by virtue of (note that where there
is a duty D must do what is reasonable, as assessed by
a jury):
Automatically arising duty e.g. parent.
Assumed duty for a person e.g. carer. Includes
stepparent; this is a continuing duty once adopted
(Gibbins v Proctor, Stone and Dobinson).
Contractual obligation (Pitwood)
Statute: failure to provide a breath specimen to a
police officer. Also in Children and Young Persons
Act 1933.

Common law duty: most common is refusal to

assist a police officer when called upon to aid in
restoring peace.
o D creates a dangerous situation the Miller principle,
where D fell asleep and caused a fire from his cigarette. He
had a responsibility to put out the resulting fire. Subtly
expanded in Evans.
o Continuing act sometimes courts have chosen to treat an
omission as a continuing act. In Fagan v MPC, D ran over a
policemans foot and failed to move when he realised. The
act was treated as continuing, but in reality it was liability
for omission.

Causation
Causation in criminal law is based largely on common sense
with a remoteness of damage filter being built into our heads.
The law believes that people are responsible for their own
actions and most of the time contextual background
information will be irrelevant in determining guilt.
But-for causation can be applied, but it tends to be too wide in
some circumstances. The test is that Ds act must be an
operating and substantial cause.
Note that there can be more than one cause: Ds act may be a
cause rather than the cause. Where there are multiple causes,
we will usually ask if, by the time the consequence came
about, was Ds action still a substantial and operating cause?
o Note: where causes are concurrent, Ds act need not be
enough to cause the harm in itself.
There may be fault, but if no causation can be proved then
there is no crime e.g. Dalloway child killed by cart where
driver is not holding reigns, but even ability to control the
house would not have saved her.
Novus actus interveniens:
The free and voluntary act of a third party can break the chain
of causation, if it renders Ds act no longer a substantial and
operating cause of the result.
Third party voluntary acts:
o Where the third party makes a fully voluntary decision
to act as he does, it is proper that his act breaks the
chain of causation.
Pagett D used his girlfriend V as a shield against
police. He shot at police, who shot back, killing V.

D had caused Vs death the firing back was

instinctive and could be treated like a ricocheting
bullet.
Kennedy (No 2) A drug dealer who prepares a
syringe which is then willingly administered by a
drug user is not guilty of manslaughter should
they die as a result. The decision must be fully
informed some debate over the notion of
vulnerability of V.
Evans D prepared heroin for her half sister V. She
willing injected, then became very ill. D failed to
get medical attention for her and cared for her
throughout the night. This constituted a liable
omission and D was guilty of manslaughter.
Roberts V was injured trying to escape from Ds
car. He was still liable because the harm was a
foreseeable result of his act.
o Note that use of innocent agents, involuntary acts, and
third party lawful excuse will not break the chain of
causation.

Medical intervention
o Requires an incredibly high level of
negligence/exceptional circumstances to break the chain
of causation (R v Cheshire)
Smith A doctor gave inappropriate treatment for
Vs pierced lunch, caused by D. D was still liable
because the wound he created was operating
throughout.
Jordan V made a near full recovery from an injury
inflicted by D. Prior to discharge from hospital, the
nurse gave him the wrong drugs, which killed him.
D was not liable because the wound he created
had ceased to operate.
Malcherek turning off a life support machine
does not break the chain of causation same
operating cause.

Acts by the victim

o May break the chain of causation if they are
unreasonable, but otherwise it is unlikely.
o Eggshell skull rule D should take his victim as he found
him, with all subsisting weaknesses that might
exacerbate the injury resulting from Ds act:
Blaue V was a Jehovahs Witness who refused to
consent to a blood transfusion and died. D was
still liable for murder even though she could have
been saved. Religious grounds will not be
questioned on reasonableness grounds take your
victim as you find them.
Holland (1841) V refused medical treatment and
died from a wound even though he could have
been saved. Such refusal was reasonable then but
would probably be unreasonable now (except in
the context of religion like Blaue).
o The principle in Blaue should not be stretched too far e.g.
take V as you find him with a propensity to commit suicide
at emotional harm. Strange case of Dear where D was
liable for Vs death, even though he aggravated the
wounds and arguably caused his own death it was the
same wound, and you had to take the victim as you found
him. This is unreasonable and the line of case law
including Roberts suggests that Vs subsequent conduct
must be reasonable.

Current issues surrounding causation:

o Many believe that traditional causation doctrine is being
undermined. Excellently exemplified by s.3(z)(b) Road
Traffic Act, of causing death while driving unlawfully. The
offence is in the unlawfulness of the driving. There is
actually no need to establish but for causation.
Exemplified in a couple of cases:
MH V was tired, drunk and on drugs when he
swerved into the opposite moving lane and
crashed into Ds car. D was driving while
disqualified. V died. The fact of the matter is that
V was entirely responsible for the accident, but
because of the nature of the offence, D was liable
for the death, despite the arguable lack of but-for
causation.

Williams similar situation but V was committing

suicide by stepping in front of Ds car. There was
clear intent by V tend to bring about the death, no
but for causation existed, but the offence is still
established.
o Is our approach to novus actus right? The cases of
Kennedy and Empress Cars cannot be reconciled. The
novus actus doctrine contains a sometimes ignored
foreseeability factor for consideration, which really
means that both of these cases undermine the doctrine
in Empress Cars there was liability but the
consequence was unforeseeable, where in Kennedy the
consequence was entirely foreseeable but there was no
liability. We need to establish where the criminal law is
going with causation the complication perhaps arises
from increasingly regulatory function of the criminal law,
as opposed to prosecuting more wrongs which are
criminal-proper.
Automatism
It is necessary to show that D was acting voluntarily to be
charged.
Automatism is where absolute control of the body is lost.
Denning said it should limited to act done while unconscious,
and to spasms, reflex actions and convulsions. Note: there
may be a lower standard in tort (Mansfield v Weetabix may
have resulted in criminal liability)
Any sign of control will negate the availability of the defence
e.g. swerving to miss cars etc.
o AGs Ref No 2 of 92 lorry driver was in a trance, but
swerved to come off the hard shoulder. This showed
some control and negated the automatism defence.
A successful plea of automatism will either be met with a
verdict of not guilty or not guilty by reason of insanity.
o By reason of insanity derives from diseases of the mind,
but that includes things like sleepwalking, so insanity
may not be the best label for it.
o Insane/non-insane automatism: former is caused by
internal factors but latter by internal. Odd because for
diabetics this would mean injecting too much insulin
would be non-insane (external factor is the cause), but
forgetting to inject would be insane (disease of the
mind).