Unit 18 – manual three

UNIT 18 – MANUAL THREE

GUILTY CONDUCT

1 Basic Actus Reus (A R) principles

§  Without A R there is no crime –

o  Principally, this is positive action – doing something;

o  But failure to act can equate to actus reus.

§  Additionally AR may require there to be –

o  Certain circumstances surrounding the action;

o  Certain consequences of def’s conduct

§  Result offences – where in addition to def’s conduct there are certain circumstances & consequences, this is a result offence;

§  Conduct offences –

o  Where no consequence has to follow from the conduct, this is a conduct crime;

o  Def is guilty if he acts in certain way/ situation – there’s no requirement to demonstrate any consequence of the conduct;

§  For A R to be established all elements expressed in the offence definition must be present;

§  A R can be established by a state of affairs – e. g. being drunk in public place;

§  Def’s conduct must be voluntary;

§  Where any required element is missing, A R is not established & a conviction can’t follow.

2 Identifying A R

§  Crim offences defined by stat or common law so A R is found in stat interp & relevant judgments;

§  A R = elements of definition ex state of mind/ defences

§  Examples –

o  Crim damage (s,1(1) CDA 1971):

§  Damaging/ destroying another’s property ( A R);

§  Without lawful excuse (Defence);

§  With intent or recklessness (Mens rea).

o  Murder (common law):

§  Killing human being (A R);

§  Unlawfully (Defence);

§  Malice aforethought (mens rea).

§  A R may embrace more than one element e. g. –

o  Crim damage = damage/ destruction AND property belonging to another (thus, damaging own property is not an offence);

o  Murder = killing AND human being (thus killing foetus/ animal or attempting to ‘kill’ dead person is not murder).

3 Liability through failing to act

§  Certain offences – e. g. burglary, rape – can’t be committed by omission – there can be no rape where there is no active sexual participation;

§  Some stat offences impose liab failing to act but general rule is that there is no liab for failing to act subject to certain exceptions;

§  Where a special relationship exists – family ties or def has assumed a duty – failing to act can incur crim liab –

o  Particularly duty of parent to child, recognised at common law & by s.1(2)(a) of Children & Young Persons Act 1933;

o  In R v Gibbons & Proctor [1918], P was not child’s mother but held to have assumed duty due to voluntary co-habitation with G & receipt of housekeeping money from him – her failure to feed child was A R of murder;

o  Co-habitation may indicate assumed duty generally - specific liab will depend on the fact & in R v Stone & Dobinson [1977] duty was found based on –

§  S’s blood relationship with his sister F;

§  F lived with the defs;

§  Limited care they provided established an assumed a duty of care.

o  By Stone there’s no general liab towards either relatives or residents of one’s home but duty can be assumed from def’s conduct & if inadequate assistance is provided, crim liab may be incurred;

o  Parent has a special relationship with child which imposes a duty to care & other relationships may exist where it is apparent that duty assumed:

§  Acceptance of payment/ accommodation in return for providing care;

§  Inviting those needing care to live permanently as part of one’s family/ household.

§  ‘Victim’s’ wishes may abrogate duty & in R v Smith [1979] it was held whether def was released from duty by victim’s instructions depended on her state of mind –

o  Where she was capable of being rational, reasonable to respect this wish & avoid crim liab;

o  But if victim too ill to make such decision, more appropriate to override wishes;

o  Thus, where victim remains capable of determining fate, def is released from duty to care.

§  Where employment contracts set out obligations to act, failure can result in crim liab & in R v Pittwood [1902] contractual breach rendered def crim liab for consequences of his failure;

§  Where stats impose duties to act in certain ways, omissions result in crim liab, irrespective of consequences;

§  Where def creates dangerous situation, he is under duty to take steps to rectify this & can incur crim liab if he fails so to act & in R v Miller [1983] it was held -

o  Def created dangerous situation which imposed duty to take reasonable steps to prevent further damage;

o  His failure so to do justified crim liab & conviction.

4 Causation

§  With ‘result’ offences act/ omission must cause a result & there must be a demonstrable link between conduct & prohibited result;

§  In most cases this is clear on facts but circumstances are not always so clear cut & courts have developed 2 causation tests, both of which have to be present to establish A R –

o  Factual causation: Where, but for def’s act, victim would not have died, factual causation (FC) exists;

o  Legal causation:

§  Must also prove that def was legal cause of death;

§  Matter of fact for jury to decide but C of A guidelines assist in situations where –

·  Another person’s act intervenes between initial act of def & final result; or

·  An event occurs between these.

o  Contribution to result by acts of another - R v Pagett [1983] C of A held:

§  Def’s conduct need not be sole or main cause of death;

§  Sufficient for act/ omission to contribute significantly to the result;

§  Significant = > minimal.

o  Intervening events-

§  Defs may argue that the event absolves them of liab - novus actus interveniens –

·  Link is broken by the incidence of the event;

·  Chain of causation is broken.

§  In determining whether crim liab for result avoided, courts consider whether:

·  Despite the event, the def’s acts were an operating/ substantial cause of the result (R v Malcherek & Steel [1981]);

·  Event was foreseen by def or foreseeable by reasonable person as likely normally to occur;

§  In R v Pagett it was held:

·  Chain may be broken by 3rd party’s ‘free, deliberate & informed intervention’;

·  Where this not so – intervention involuntary because the 3rd party had no choice but to intervene – def’s conduct/ result link is not broken.

§  Where death arises from escape attempts by victims – such action could be considered to be an involuntary act & in R v Williams & Davies [1992] it was held:

·  Juries should consider whether –

o  Harm (but not necessarily serious) was reasonably foreseeable from def’s threats;

o  Actual reaction was reasonably within range of anticipatable responses in the circumstances;

·  Rule = where victim’s action is involuntary (he has no option but to try to escape), def’s conduct brought about that result & he is crim liable for consequence.

§  In R v Watson [1989] held that where death results from fright following threats etc test is that applicable to physical injury – if result foreseen or foreseeable, def could be held to be legal cause.

o  Affect of medical negligence –

§  Def may argue did not foresee medical mis-treatment &/ or that that is not foreseeable – treatment intervening event which broke the chain of causation & in R v Jordan [1956] held:

·  Where death resulted from normal medical treatment (e. g. post-surgery complications),def remained the cause of the result;

·  But where treatment found to be not normal, such a finding could not be the case.

§  Note that Jordan is considered to be exceptional (original wound had healed) & in R v Smith [1959] guidelines held to be:

·  Where original wound still operated as substantial, operating cause (irrespective of there also being some other cause), then the death is the result of the injury;

·  Only if it is established that wound now simply setting or history in which another & overwhelming cause operates, can it be held that death does not result from the wound.

§  The leading case, R v Cheshire [1991], held:

·  Negligence may be immediate cause of death, but this did not mean that def’s contribution by original conduct did not contribute significantly to result;

·  Only in most exceptional circumstances poor/ negligent treatment would avoid liability;

·  Treatment would have to be so independent of def’s acts & so potent in itself in causing death before it could render def’s contribution insignificant.

o  Affect of pre-existing conditions –In R v McKechnie [1992] held – where def’s attack directly prevented treatment & medical decision was reasonable & not so independent of the def’s conduct to be considered cause of death, chain had not been broken & def was liable;

o  Affect of weak or intractable victims –

§  General rule = defs take victims as they find them & this extends to refusals by victims to accept medical help on religious/ other grounds;

§  If victim is frail or has firm beliefs leading to refusal of medical treatment, that is def’s bad luck – it does not remove crim liab & in R v Blaue [1975] held:

·  Those using violence against others must take victims as they find them;

·  This encompasses the ‘whole’ of that person & not just the physical;

·  Sole question is what caused death & answer is def’s act;

·  Victim’s refusal to stop result did not break chain.

5 Example of causation issues

Facts –

§  D fell asleep smoking & awoke to find chair smouldering but did nothing to stop it;

§  H was asleep & awoke to find house ablaze, called fire brigade & was hospitalised due to severe burns & breathing problems;

§  Dr S was busy, failed to diagnosis full damage & left H alone promising to come back;

§  When he did a few hours later H had died.

Conclusions –

§  D took no steps to inflict harm but failed to put out fire & this led to H’s injuries;

§  D may seek to argue that there is no liab for failure to act but, as established in R v Miller where def creates a dangerous situation, he has a duty to rectify this;

§  Extent of duty depends on facts (e. g. severity of fire) but must include calling the fire brigade &, possibly, trying to wake H;

§  If H had died at flat or before reaching hospital, D’s failure to act when under duty established A R of murder;

§  What has to be considered is implication & affect of intervening act – whether chain of causation broken by bad medical treatment;

§  ‘But for’ D’s omission H wouldn’t have been injured or at hospital where treatment was negligent – FC is proved;

§  As to legal causation, injuries are an operating & substantial cause of death – A R is established;

§  As to intervening event, R v Cheshire means that chain only broken if treatment was so independent & self-potent to make D’s conduct an insignificant contribution – this is rarely the case & court is likely to hold that all aspects of A R for murder are established.