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What is the actus reus?

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The actus reus is the forbidden conduct or behaviour which the law seeks to prevent. It may be best summarised as the ‘physical’ part of the crime and refers to all conduct of the crime except for the defendant’s mental state.

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For the defendant to be found guilty, his/her behaviour must have been voluntary. This means that where a defendant is not in control of his own body, it may it may be considered involuntary for which the defences of insanity and non-insane automatism will be availble. Likewise, where a defendant is under extreme pressue to carry out the act to the point that his or her life depends of it, the defence of duress may be available.

 

In R v Brady (2006), a young man was heavily intoxicated and then sat on a railing of a balcony overlooking a dance floor. When he lost his balance and fell, he broke the neck of the dancer below. Although it was argued that it was a tragic accident, the Court of Appeal held that the defendant’s voluntary intoxication, coupled with him being unsteadily sat on the railing, amounted to voluntary conduct.

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The actus reus can be broken down into three categories: (i) action crimes; (ii) result crimes; or (iii) state of affair crimes.

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Action Crimes

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An action crime is simply an act, supplemented with specified circumstances. For example, the actus reus of theft is the misappropriation of property and the accompanying circumstance is that it belongs to another.

 

Result Crimes

 

A result crime refers to a specified consequence or result. For example, death resulting being the actus reus for murder or manslaughter.

 

State of affair crimes

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A state of affairs crime refers to the circumstances of a crime. So crimes are referred to ‘being’ as opposed to ‘doing’ crimes. In Winzar v Chief Constable of Kent (1983) The Times, 28 March 1983, for example, the defendant was removed from hospital by the police, and was then arrested and charged with the offence of being drunk on the highway, even though it was the police that put him there. It was the defendant’s ‘being,’ as opposed to doing, which rendered him guilty.  Likewise, in R v Larsonneur (1933) 24 Cr App R 74, the defendant was convicted of being in the United Kingdom, in contravention of the Aliens Order 1920, even though she had been brought into the UK by force by the immigration authorities. It was her ‘being’ in the country which rendered her guilty.

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Omissions

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There is a general rule in the United Kingdom that unlike other countries such as France, there is no good samaritan law. This means, in effect, that a person cannot be held liable for failing to help another in distress The most often quoted example of this is the ‘child drowning complex’ – for example, John is walking in the park where he sees a young child, Adam, drowning. As John is late for work he ignores Adam. Adam subsequently dies. Although many would argue that John is under a moral duty to save the young child, he is not under a legal duty and would not be found guilty for failure to offer assistance.

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There are, however, certain situations where a person may be liable for failing to act. These are: (1) where the defendant has a contractual duty; (2) where the defendant has a statutory duty; (3) where a duty arises from a relationship; (4) a duty taken on voluntarily; (5) a duty arising in a position of office; and (6) by creating a dangerous situation and failing to put it right.

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Contractual duty

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In R v Pittwood (1902) TLR 37, the defendant, a gatekeeper, opened the gate to let a car through and forgot to shut it when he went off for his lunch. As a result, a hay cart crossed the line and was hit by an approaching train, resulting in a number of death.

Held: Due to his contractual duty, he was found liable for manslaughter.

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Statute

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Legislation may impose a duty on individuals to act. For example, section 1 of the Children and Young Persons Act 1933 states that there is a duty to provide for a child in one’s care. By omitting to provide such care, an offence is committed.

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Duty from a relationship

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In R v Gibbins & Proctor (1918) 13 Cr. App. Rep 134, a father and his lover were neglectful in failing to her his child.

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Held: As the lover had taken on a duty of care for the child, she was under an obligation to care for her.  

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In R v Instan (1893) 1 QB 450, the defendant lived with her aunt, who was taken ill and could no longer feed herself or seek help.  

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Held: as there was a duty arising from the relationship and the defendant neglected to feed her aunt or call for medical help, she was convicted of manslaughter.

 

Assumption of responsibility

 

In R v Stone and Dobinson [1977], the defendant’s allowed Stone’s ill sister, Fanny, to live in the house. Fanny suffered from anorexia and her condition was deteriorating to the point where she came bed-bound. Her condition meant that she was in urgent need of medical treatment, for which the defendant’s did not seek. She sadly died in foulness, covered in bed sores.

 

Held: as the defendant’s had taken Fanny into their home, they assumed a duty of care and in the performance of that duty they had been grossly negligent. They were liable for manslaughter and the actus reus was the failure to prevent the death.

 

A duty arising from a position of office

 

In R v Dytham [1979] QB 722, the defendant, a police officer, was prosecuted for failing to intervene in a fight outside a nighclub, in which a man was beaten to death.

 

Held: the failure to quell the disturbance amounted to misconduct in a public office, notwithstanding the fact that it was brought on by an omission. The Lord Chief Justice went further and held:

 

that the offence of a public officer wilfully neglecting to perform a duty which he was bound to perform by common law or by statute involved that the neglect had to be wilful and not merely inadvertent and had to be culpable in the sense of being without reasonable excuse or justification; that the element of culpability was not restricted to corruption or dishonesty but had to be of such a degree that the misconduct impugned was calculated to injure the public interest so as to call for condemnation and punishment, that it was for the jury to decide whether the evidence revealed the necessary degree of culpability; and that, since the allegation against the appellant was not of mere non-feasance but of deliberate failure and wilful neglect, the ruling on demurrer was correct.

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Creating a dangerous situation and failing to put it right

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In R v Miller [1982] UKHL 6, the defendant was a squatter. One day, as he lay on a mattress, he lit a cigarette and fell asleep. Sometime later, he woke to find the mattress ablaze, but made no attempt to extinguish the fire and moved to the next room where he proceeded to go back to sleep. The house suffered serious irreparable damage. The defendant was charged with arson.

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Held: as the fire was the defendant’s fault, by failing to put the situation right, he had committed a criminal offence. The actus reus of the offence was held to be the original act – the dropping of the cigarette.

 

In Director of Public Prosecutions v Santra-Bermudez (2003), EWHC 2908, a police officer had decided to undertake a search of the defendant, as she suspected he was a ticket tout. The officer asked the defendant if he had any needles or sharp objects in his possession, to which he replied that he did not. However, where the officer put her hand into the defendant’s pocket, she was pricked by a hypodermic needle. When questioned that he had stated that he was not in possession of sharp items, the defendant merely shrugged his shoulders and sneered at the officer.

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Held: the defendant was guilty of assault occasioning actual bodily harm. Although referred to as a commission of an act, the Court of Appeal applied the principles set out in the judgment of Miller.

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Criticisms of the rule

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Criticisms of the actus reus rule have been aplenty. One of the most recurrent arguments regarding actus reus is that there should be a positive duty to act in situations such as where there is a drowning child whom they could easily have saved, or in situations where there has been a horrific car accident, and calling the emergency services may save their lives. Indeed, in many countries – mainly civil law countries -  such a rule is not unheard of. In France, for example, the French Criminal Code, Article 223-6 states:

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‘whoever voluntary fails to provide to a person in danger the assistance that, without risk for himself or a third party, he could provide, either by his own actions, or by initiating a rescue, may be punished up to five years’ imprisonment and a fine up to 75,000 Euros.

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But this is not analogous to the position in the United Kingdom or United States. So, should the United Kingdom adopt such a policy?

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While it is clear that there are obvious benefits, such as bringing a moral approach to the law, can it be said that every person who fails to act is guilty? Take, for example, a man who sees a young child drowning in a deep pool. If the man cannot swim, should a duty be put upon him to risk his own life in trying to save another? And should he be found guilty for failing to act? Many would argue that a system parallel to France’s would prevent such idiosyncrasies; however, would it be just to impugn a man who was not a proficient swimmer and not a man who could swim? Should the elderly face such a duty? How about those with a mild disability?

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The most famous imposition of the rule was in the aftermath of the death of Princess Diana. As photographers took photographs as opposed to positively helping the deceased, they had failed to provide assistance.