General Elements of Liability (AQA A-Level Law): Revision Notes
Actus Reus
Actus reus is the physical element of a crime. Most crimes require both actus reus (the physical act) and mens rea (the mental element) to occur at the same time, known as contemporaneously. This note focuses on the actus reus component of criminal liability.
Understanding actus reus
Actus reus typically refers to the defendant's conduct or action that constitutes the physical element of a crime. This conduct must usually cause a specific consequence. However, actus reus can also relate to what a defendant fails to do (an omission) or simply their state of being in certain circumstances, rather than any active conduct.
The prosecution must prove that the defendant committed the actus reus of the offence beyond reasonable doubt. Without establishing the physical element, there can be no criminal liability, regardless of the defendant's mental state.
Conduct: acts and omissions
The general rule on omissions
An omission means a failure to act. English law generally does not impose criminal liability for a failure to act. This principle is often referred to as the absence of a 'Good Samaritan' law, meaning the law does not place a legal obligation on individuals to assist others or prevent harm.
For example, if you witness someone drowning and have the ability to save them, you are not legally required to do so under English criminal law (though there may be moral obligations).
Exceptions: when there is a duty to act
To achieve justice, the law recognises six important exceptions where a person does have a duty to act. Failure to fulfil these duties can result in criminal liability:
1. Statutory duty to act
Certain statutes impose a legal duty to act. Two key examples are:
- Section 1 of the Children and Young Persons Act 1933 (as amended) - places a duty on parents and guardians to provide adequate food, clothing, medical aid and lodging for children in their care
- Section 170 of the Road Traffic Act 1988 - requires drivers involved in road accidents to stop and provide details
2. Duty arising from a special relationship
Close family relationships can create a duty to act. In R v Gibbons and Proctor (1918), a father and his partner were convicted of murder when they failed to feed the father's seven-year-old daughter, resulting in her death. The court held that the parent-child relationship created a duty to provide necessities of life.
3. Duty arising from the assumption of care for another
Where someone voluntarily assumes responsibility for another person, particularly a vulnerable person, they acquire a duty to act.
Case Example: R v Stone and Dobinson (1977)
Stone's elderly sister came to live with the defendants. She became ill and bedridden, but they failed to summon medical help or care for her adequately. She died from malnutrition and infected bedsores.
Outcome: Both defendants were convicted of manslaughter. The court held that by taking her into their home and assuming responsibility for her care, they had acquired a duty to act.
Legal Principle: Voluntarily assuming care for a vulnerable person creates a legal duty to provide adequate care.
4. Duty arising from a contract of employment
An employment contract may create a duty to act, particularly where public safety is involved. In R v Pittwood (1902), a railway crossing keeper failed to close the gate before a train approached. A person crossing the line was killed. Pittwood was convicted of manslaughter because his contractual duty extended to protecting the public, not just his employer.
5. Duty arising from an official position
Public officials may have a duty to act by virtue of their office. In R v Dytham (1979), a police officer stood by and watched as a man was kicked to death outside a nightclub. He then drove away without calling for assistance or intervening. He was convicted of misconduct in a public office. His official position as a police officer created a duty to protect the public and prevent crime.
6. Duty to avert a danger of one's own making
Where a defendant creates a dangerous situation, they acquire a duty to take reasonable steps to prevent harm resulting from that danger.
Case Example: R v Miller (1983)
Miller, a squatter, fell asleep while smoking a cigarette. He woke to find his mattress on fire but moved to another room without attempting to extinguish the fire or call for help. The house was damaged.
Outcome: The House of Lords held that when Miller created the dangerous situation (the fire), he came under a duty to take reasonable steps to avert that danger. His failure to do so meant he could be liable for arson.
Legal Principle: Creating a dangerous situation imposes a duty to take reasonable steps to prevent harm from that danger.
State of affairs offences
In certain circumstances, criminal liability can arise from simply 'being' in a particular state or situation, rather than from any positive action. These are known as state of affairs offences.
An example is possession of an offensive weapon in a public place under section 1 of the Prevention of Crime Act 1953. The defendant does not need to do anything with the weapon, and it does not need to be visible. Simply having the weapon in one's possession while in a public place is sufficient to commit the offence. The actus reus is the state of being in possession in a public place, not any action taken with the weapon.
Voluntariness and involuntariness
For actus reus to be established, the defendant's conduct must be voluntary. Where voluntary conduct is absent, there can be no link between the defendant and any resulting harm, and therefore no criminal liability.
Involuntary conduct
The requirement of voluntariness means that actions must be the product of the defendant's conscious will. Involuntary actions include:
- Reflex actions
- Muscle spasms
- Actions performed while unconscious
- Conduct during an epileptic fit
- Actions under physical compulsion
R v Mitchell (1983) demonstrates voluntary conduct leading to liability. Mitchell pushed a man in a post office queue who fell into an elderly woman. She suffered injuries and later died. Mitchell was convicted of manslaughter because his initial push was a voluntary act, even though he did not intend the ultimate consequence.
By contrast, in R v Larsonneur (1933), the defendant's presence in the UK was deemed involuntary as she was brought to the UK against her will by immigration officials. However, she was still convicted under the Aliens Order 1920, making this a controversial decision regarding voluntariness.
Judicial guidance on voluntariness
In Hill v Baxter (1958), Devlin J provided useful guidance in obiter dicta (a statement made in passing, not essential to the decision). He gave examples of involuntary conduct, including a driver who is attacked by a swarm of bees and crashes as a result. In such circumstances, the driver's actions would not be voluntary, and they would not be liable for dangerous driving or any resulting accident.
This case highlights that genuine involuntariness can be a defence, but the circumstances must truly remove the defendant's control over their actions.
Causation
Where an offence requires proof of a particular consequence (such as death in murder or injury in assault), the prosecution must establish that the defendant's conduct caused that consequence. This involves proving two elements:
- Factual causation
- Legal causation
Both elements must be satisfied for the defendant to be held liable for the consequence.
Factual causation: the 'but for' test
Factual causation is established using the 'but for' test: but for the defendant's actions, would the victim have suffered the consequence?
If the answer is no (meaning the consequence would not have occurred without the defendant's actions), factual causation is established. If the answer is yes (meaning the consequence would have occurred anyway), factual causation is not proved.
Case Example: R v White (1910)
White attempted to poison his mother by putting cyanide in her drink. However, she died of a heart attack before the poison could take effect.
Application of the 'but for' test: But for White's actions, would his mother have died? Yes, she would have died anyway from the heart attack.
Outcome: Factual causation was not established for murder (though he was guilty of attempted murder).
By contrast, in R v Pagett (1983), Pagett used his pregnant girlfriend as a human shield while shooting at armed police. The police returned fire, killing the girlfriend. Applying the 'but for' test: but for Pagett's actions, would the girlfriend have died? No. Therefore, factual causation was established despite the fact that police bullets actually killed her.
Legal causation: more than a minimal cause
Establishing factual causation alone is insufficient. The prosecution must also prove legal causation, meaning the defendant's conduct was a significant or substantial cause of the consequence. The Supreme Court confirmed this requirement in R v Hughes (2013).
Several principles govern legal causation:
1. The 'de minimis' rule
The defendant's conduct must be more than a minimal cause. There must be more than a slight or trifling link between the conduct and the consequence.
In R v Kimsey (1993), Kimsey was involved in a high-speed car chase with another vehicle that resulted in a fatal crash. The court held that the jury should ask whether the defendant's conduct contributed significantly to the result. It need not be the sole or main cause, but it must be more than minimal.
2. The 'operating and substantial cause' test
The defendant's acts need not be the sole cause or even the main cause of the consequence, provided their acts contributed significantly to it. The defendant's conduct must be an 'operating and substantial cause' at the time of the consequence.
Case Example: R v Smith (1959)
Smith stabbed a soldier during a fight. The victim received poor medical treatment and was dropped twice while being carried to the medical station. He died a few hours later. Medical evidence suggested he might have survived with proper treatment.
Outcome: The court held that the original stab wound was still an operating and substantial cause of death. The poor medical treatment did not break the chain of causation because the wound remained a significant contributing factor.
Legal Principle: The defendant's act need not be the sole or main cause, as long as it remains a substantial and operating cause at the time of death.
3. The 'thin skull' rule
Defendants must take their victims as they find them. This is known as the 'thin skull' rule or the principle of eggshell skull. If a victim has an unusual physical or psychological condition that makes an injury more severe, the defendant is still fully liable for all consequences.
Case Example: R v Blaue (1975)
Blaue stabbed an 18-year-old woman. She required a blood transfusion to survive but refused it on religious grounds as she was a Jehovah's Witness. She died as a result.
Outcome: The court held that Blaue was responsible for her death. The victim's refusal of treatment, even if unreasonable to some, did not break the chain of causation.
Legal Principle: Defendants must take their victims as they find them, including their religious beliefs and any physical peculiarities.
4. Medical intervention
Poor medical treatment generally does not break the chain of causation unless it is so independent of the defendant's acts and so potent in causing death that the original wound is merely part of the history.
In R v Cheshire (1991), Cheshire shot a man in the leg and stomach. The victim required surgery and developed respiratory complications. Medical staff negligently failed to recognise that his breathing tube had become blocked, and he died. By this time, the original wounds had largely healed.
The Court of Appeal held that medical treatment will not break the chain of causation unless it is 'so independent of the defendant's acts and so potent in causing death' that it makes the defendant's contribution insignificant. The treatment must be 'palpably wrong' or 'extraordinary and unusual'. Even negligent medical treatment will not usually break the chain of causation.
However, in the exceptional case of R v Jordan (1956), the chain of causation was broken. Jordan stabbed the victim, who was treated in hospital. The wound was healing well when doctors gave him an antibiotic to which he was known to be intolerant, and administered abnormal quantities of intravenous fluids. He died. The Court of Appeal held that the medical treatment was 'palpably wrong' and so extraordinary that it broke the chain of causation.
R v Jordan (1956) is exceptional and rarely applied. Medical negligence will usually not break the chain of causation unless it is truly extraordinary and makes the original injury insignificant.
Intervening acts: novus actus interveniens
Even where causation is initially established, the defendant may escape liability if there is a novus actus interveniens (a new intervening act) that breaks the chain of causation.
An intervening act can take three forms:
1. Act of a third party
If a third party's actions are 'free, deliberate and informed', they may break the chain of causation. However, if the third party's actions are reasonably foreseeable, the chain will not be broken.
In R v Pagett (1983) (discussed above), the police officers' actions in returning fire did not break the chain of causation because they were a reasonable and foreseeable response to Pagett's aggression.
2. The victim's own act
The victim's actions may break the chain of causation if they are 'daft' or completely unreasonable. However, if the victim's reaction is reasonably foreseeable, even if they contributed to their own harm, the chain is not broken.
Case Example: R v Roberts (1972)
Roberts made unwanted sexual advances toward a woman in a moving car. She jumped out to escape and was injured.
Outcome: The Court of Appeal held that the defendant is liable if the victim's reaction was reasonably foreseeable. It need not be the only possible reaction. Jumping from a moving car to escape sexual assault was held to be a reasonably foreseeable reaction.
Legal Principle: The victim's reaction must be 'daft' or completely unreasonable to break the chain of causation. A reasonably foreseeable response, even if extreme, will not break the chain.
Similarly, in R v Williams (1992), the victim jumped from a moving car to escape what he believed was a robbery attempt. The court applied the Roberts test, asking whether the victim's action was within the range of reasonable responses that might be expected.
In R v Marjoram (2000), the defendants chased the victim, who tried to escape by climbing onto a hostel roof. He fell and suffered serious injuries. The Court of Appeal held that the chain of causation was not broken because the victim's actions were reasonably foreseeable in light of the defendants' threatening behaviour.
3. A natural but unpredictable event
A natural event that is completely unforeseeable may break the chain of causation. However, such events are rare, and natural consequences of the defendant's actions will not break the chain.
Consequence crimes
Criminal offences can be classified as either 'conduct crimes' or 'consequence crimes':
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Conduct crimes involve prohibited conduct itself, such as speeding or possession of drugs. The actus reus is complete when the conduct occurs.
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Consequence crimes require proof that a particular consequence resulted from the defendant's conduct. Most offences against the person (where someone is injured or killed) are consequence crimes.
For example, murder is a consequence crime because the actus reus requires proof of a dead human being resulting from the defendant's actions. The consequence (death) must be proved, along with causation linking the defendant's conduct to that death.
Where an offence is a consequence crime and the consequence is not directly caused by the defendant's actions (because another factor is involved), the rules of causation discussed above must be carefully applied to determine liability.
Exam guidance
When answering problem questions on actus reus:
Identifying the actus reus:
- Always begin by identifying what type of actus reus is required for the offence in question
- State whether it is a conduct crime or consequence crime
- If it involves an omission, work through the six exceptions systematically to see if a duty to act exists
Applying causation:
- For consequence crimes, always apply both factual and legal causation
- Use the 'but for' test for factual causation explicitly
- Apply relevant rules of legal causation (de minimis, operating and substantial cause, thin skull)
- Consider whether any intervening acts (novus actus interveniens) might break the chain
- Always link cases to the facts of the scenario you are analysing
Using cases effectively:
- State the case name and briefly explain the key facts that make it relevant to the scenario
- Identify the legal principle established by the case
- Apply that principle to the facts you are analysing
- Avoid lengthy descriptions of case facts; focus on the legal principle and its application
Problem-solving approach:
- Identify the offence and its actus reus requirements
- Apply the relevant rules and principles
- Use cases as precedents to support your analysis
- Reach a conclusion on whether the actus reus is established
Common mistakes to avoid:
- Forgetting to apply both factual AND legal causation for consequence crimes
- Failing to work through all six exceptions when analysing omissions
- Not considering voluntariness when discussing the defendant's conduct
- Confusing causation principles or applying them incorrectly
Remember!
Key Points to Remember:
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Actus reus is the physical element of a crime and must occur contemporaneously with mens rea for most offences.
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Omissions generally do not create criminal liability unless one of six exceptions applies: statutory duty, special relationship, assumption of care, contract of employment, official position, or danger of one's own making.
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Conduct must be voluntary to establish actus reus. Involuntary actions (reflex actions, actions during fits, actions under compulsion) cannot form the basis of criminal liability.
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Causation requires proof of both factual causation ('but for' test) and legal causation (more than minimal cause). The defendant's conduct must be an 'operating and substantial cause' but need not be the sole or main cause.
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The thin skull rule means defendants must take their victims as they find them, including any physical, psychological or religious characteristics that might make injuries more severe.