2 - Elements of Crimes

8/7/2019 2 - Elements of Crimes

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Lecture 3: Elements of Crimes (October 22nd.)

The conditions require for liability of a crime are sometimes called the elements of a crime. If you take

any crime, you can normally break it down into a number of elements or conditions for liability.

Generally broken down into 2 headings

- Actus Reus (physical or external elements of the offence/ prohibited act)

- Mens Rea (mental element/fault element/culpability requirement)

Some starting points

- Wellsee theyre alarge number of offencesin Englishlaw ofso called strict liability.

What that meansis that these are offenceswhich do not require mensrea or fault in

relation to one or more elements of the actusreus.

o The offence ofspeeding in a motor vehicle. The actusreus of that is driving a

motor vehicle in excess of the relevant speed limit. Itsan offence ofstrict liability

in the sense that it doesnt require you to knowyouwere exceeding the speed

limit. Its enoughyouwere caught doing so. It is no defence that you didnt see

the relevant sign oryou misread it. So liabilityisstrict in that sense.

- There are certain crimeswhichare technicallystrict liabilitycrimesbut certain elements

of the actusreusimplicitlyincorporate some mental elements

o Suppose youre ashopkeeperand youre charged withselling food unfit for

human consumption. Thatsactuallyagain astrict liability offence. So it is not a

defence ifyou didnt know the food wasunfit. However, this does require you to

sell. And the notion ofselling suggests that youhave to have an intention to enter

into alegal transaction forsale. And intention to passlegal title

o Wellsee there are other offences of this type. E.g.law of theft. One of the

actusreus elementsis that ofappropriating property. Well that notion ofappropriation doescarrysome connotation thatyouintend to treat someone

elsespropertyasyourwon

(A): ACTUSREUS (THE PHYSICAL OR EXTERNAL ELEMENTS OF AN OFFENCE)

(I) CRIMINAL CONDUCT: ACTS AND OMISSIONS

Most crimes require the defendant to do some kind of positive act, but some offences can be

committed where the defendant failed to act when he had a duty to do so.Most of the reported cases

concern possible liability for murder or manslaughter where the defendants failure to act has resulted

in death, but liability for omission is by no means restricted to homicide cases.

In general, crimes can be broadly divided into 2 groups here:

- Pure Omissions; This refers to a number ofstatutorycrimeswhich typicallyconsist of D

failing to provide information when required to do so. E.g.under the tax legislation, we

have duties to file a tax return if required to do so by the inland revenue and it isan

offence to fail to do so when required. Note that many of these offencesare crimes of

strict liability.


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- Crimescommitted by eitherapositive act, oran omission when undera duty to act;The

former describes the bulk ofcrimesand is quite straightforward. With regards to the

latter, the bulk of the reported casesconsiderhomicide, murder, or manslaughterbut the

concept is not restricted to those cases. To give a general example, homicide is to do

withunlawful killing. Youcan killsomeone either ofcourse byapositive act

(shooting/stabbing) but also by failingtoact. E.g.youcan killachild by failing to feed it.

Example of a non-homicide case where theActus Reus of the offence consists of an omission

*Miller [1983] 2 AC 161

Here, D convicted of arson of a house. He had been squatting in this house as a vagrant one night hed

gone to sleep on a mattress smoking a cigarette and he woke up sometime later feeling fairly warm and

discovered the mattress underneath him was on fire, presumably having dropped the cigarette, miller

simply moved to another room to another mattress and went to sleep, to be woken up a second time by

the fire brigade and the whole house on fire.

The crime of arson is defined as causing damage to property by fire either intentionally or recklessly.

Miller hadnt intentionally set fire to the house clearly but the HL held that when he woke up the first

time and realised his cigarette had started a fire on the mattress, he then became under a legal duty to

take steps to remedy the dangerous situation that he had created. He failed to do so. So he failed to

discharge this legal duty and as aresult the house had been damaged by fire. HL took the view that his

conduct was reckless given that he knew of the situation he created.

The element of duty is crucial in omissions cases. Its an elementary proposition that theres no liability

for an omission in English law in the absence of a duty to act. Theres a famous example in all the

textbooks of a hypothetical situation where you have a child drowning ina shallow pool of water andtheres a bunch of able bodied adults standing around watching. None of them have a duty to act unless

you can show that any one of them had a duty to act to save the child.

The sources of duty to act in English law for the purpose of criminal liability are relatively limited.

Quick summary of the sources of a duty to act; there are certain special relationships which English law

recognises as giving rise to duties. Of which the most important is parent and child. So if one of the able

bodied adults is the childs parent, then the parent certainly has a legal duty to rescue the child. Thats

been recognised in the CL for centuries.

Its also probably the case that spouses and civil partners owe legal duties to each other to provide the

necessities of life if the other is not capable of providing for themselves. So if its the wife drowning

inthe pool because she cant swim and the husband is by the side, he almost certainly has a legal duty to

rescue her. So special relationships will give rise to duties.

The cases also suggest that if you expressly assume responsibility for the welfare of someone else, thatll


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create a duty upon you.E.g. if a grandparent takes responsibility for a child because the parents have

died, it is almost certain again therell be legal duty upon the grandparent to provide for child.

You can also have U can also have implied assumptions of responsibility where the law will look at what

youve done in relation to a vulnerable individual who cant look after themselves and may say youve

impliedly undertaken responsibility by virtue of your act

*Stone and Dobinson [1977] QB 354

This is the leading case which illustrates the notion of an implied assumption of responsibility. The case

is somewhat controversial in that it is unclear whether the principle was applied fairly to the specific

defendants but nonetheless, the doctrine seems to be reasonable clear.

Stone and his mistress agreed to care for his sister who was suffering from anorexia. As her condition

deteriorated, she became bed-ridden but no help was summoned and she died. They were convicted of

her manslaughter because they had accepted her into their home and so assumed a duty of care for her

The other situation as a source of duty is the kind of principle recognised in Miller; if you create a

dangerous situation then you may be under a duty to take steps to remedy the situation. E.g. if one of

the adults had pushed the child into the river, then underMillerthat adult has a duty to rescue the child

given that he or she has created the dangerous situation.

There are two further points on acts and omissions

1. To emphasise that theres no general duty to take positive action in Englishlaw\

2. To emphasise that the sources of dutyare limited

This is in contrast to many of the criminal codes of continental Europe where you do find general duties

of rescue. French law for instance has one and so do many continental countries.What those do is to

make it a separate offence to fail to give assistance.So if you dont help someone and they died

youwouldnt be liable for homicide but the separate offence.

The other point to make is that sometimes courts can impose liability for what seems like omissions by

reinterpreting the conduct as a kind of continuing act

Fagan v Metropolitan Police Commissioner [1969] 1 QB 439

A motorist was signalled to pull into the kerb by the officer who suspected a road traffic offence.

Motorists did so but parked one of the wheels on the constables foot. He was requested to move it. He

remained sitting inthe car and didnt move for a minute or 2 despite a further request to move it. He

was charged with assaulting a police officer inthe he execution of his duty.

D tried to argue that the initial parking of the car on his foot was an accident and all that had happened


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thereafter was that he omitted to remove it in the appropriate time and that he couldnt be liable for

that omission. Note that this is in 1969 before Miller. After Milleryou might argue that he created the

dangerous situation (if that can be used to describe it) and thus was under a duty to rectify it.

What the majority of the divisional court did was to analyse this is there being a continual act of

unlawful force, because D was sitting in the car maintaining the position on his foot, and therefore an

assault. The third judge in the div court thought it was an omission but thought D had a duty to assist

the police including to remove obstacles preventing the policeman carrying out his duty.

This illustrates how conduct doesnt always divide up neatly into acting or failing to act and that theres

a grey area which can be interpreted either way.

(II)CAUSATION

Some crimes require the defendants conduct to have caused a particular harm, such as death or serious

injury. Again, most of the principles of causation have been worked out in cases involving homicide, but

the issues are not restricted to such cases.

One of the difficulties here is that theres a very profuse terminology and the courts dont always use

language consistently and a further kind of nuisance is that they keep relapsing into nuisance. There are

a number of Latin terms you keep seeing in the case law.

The basic rule isone of factual causation which is the classic but for rule.Would the relevant harm and

therefore serious injury have occurred but for the defendants act? This is sometimes given the latin

expression sine qua non(without which nothing)

The but for test is mostly a pretty straightforward one to apply. If i stick a knife in you and you die as a

result we can clearly say that but for my act youd not have died.

It is useful in distinguishing 2 types of cases

1. Where there is no physical causal connection between the act of the defendant and the actual harm

suffered

There is a case from the 19th

century called white where D tried to poison someone. The victim didnt

drink the poison but died from a heart attack unrelated to the poisoning attempt. There was no liability

for murder due to the lack of causal link. (Though there may be liability for attempted murder)

2. The test is useful in eliminating cases of inevitable accident

Dalloway (1847) 2 Cox CC 273


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D was driving a horse drawn cart carelessly. He just left the reigns of the cart loosely on the horses back

and wasnt in proper control of the horse. A small child dashed out from side of the road, went under

the wheels of the cart and was killed. D charged with manslaughter by gross negligence. Judge directed

jury in terms that theyd have to decide whether if D had been holding the reigns he could have

prevented the accident. So if jury thought accident was inevitable he wouldnt be liable

So the starting point with the causation question is reasonably straightforward. Namely, that you apply

the but for test first.

However, the but for test can be over inclusive. If you take it by itself, it doesnt enable you to

distinguish what might be called necessary conditions of an event and causes of it.

E.g.You cant have a divorce but for a preceding marriage. Marriage is a condition for divorce but not

normally thought of as a cause for divorce.

Or, if I invite you to dinner and on your way you get run over and killed, you could say but for the dinner

invitation, you would not have died when you did so you can say my inviting you was a condition for

your death but we wouldnt describe it as a cause of your death.

So we need to refine the causation test to distinguish between causes of events and things which are

only conditions of things happen. This again if where uget a profusion of terminology inthe case law.

2 principles to take note of:

1. Casessuggest that away of refining the but for test is that Dsact should be able to be

described as the substantialand operating cause of the harm. Thishasbeen used in

caseswhere the Dsact hasbeen followed bybad medical treatment.

a. Eg D stabs V, who then goes to hospital. Bad med treatment. If V dies. Can we

say Dsact was the cause in terms ofahomicide charge? The but for test is

clearlysatisfied. But suppose thatthe treatment was really that bad and withany

decent treatment victim would have recovered quickly. Here some of the cases

theyve talked about Dsact being asubstantial operating cause. So the

wounding situation, if the wounding isstillhaving itsphysical effects(eg loss of

blood) and itsclearit needs to be treated fast for victim to recover, thatllbe a

substantialand operating cause.

2. Anotherway ofputting it is that the dsact should make a significant contribution in

terms ofharm suffered

Pagett (1983) 76 Cr App R 279

Paget was a case whereD was being sought by police and hed taken a hostage and was using her as a

human shield as he tried to shoot his way out past the police. The police fire back in self-defence and

unfortunately, the girl is killed by a shot from the police. The question is whether D could be liable for

manslaughter.


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The court chose not to talk in terms of substantial and operating cause coz it might not be appropriate

to capture what D did here. So instead, they ask whether D made a significant contribution to the girls

death to which the answer is clearly yes and that was the answer the CA gave.

Implicit in both these ideas is the idea of looking at whether Ds act is in some way abnormal so its

made a difference as it to what youd reasonably expect to happen in the normal cause of events.

So that is a way of trying to distinguish or restrict the uncontrolled operation of a but forprinciple

The other limiting principle we need to refer to is the idea that human action which fulfils the criteria of

being free,deliberate,informed) will limit causal enquires or break the chain of causation so

F,d,i interventions sometimes in latinnovousactusinterveniens

*Kennedy (No 2) [2007] UKHL 38; [2008] 1 AC 269

Deals with situation of supply of a controlled drug to a user who voluntarily takes the drug and dies as a

result (whether through overdose or otherwise). The question is whether the drug supplier can be liable

for manslaughter.

but for causation would seem to be satisfied. Even a narrower significant contribution sort of

causation seems to be satisfied. Particularly if as sometimes happens the supplier pre-mixes up the drug

and puts it in the syringe and the user merely take the syringe.

Here, the HL reaffirm the longstanding CL principle that if the act of a human agent is free, deliberate,

and informed, itll break the causal link.So the HL held that the act of the user if its free (not coerced),

deliberate, informed (user knows exactly what it is theyre injecting) then HL say itll break causal link

b/w supply of drug and the users death and on that basis held the supplier, Kennedy was not liable for

manslaughter by supplying the drug.

Now this is clearly a general principle which applies in other contexts. E.g. D stabs V. If V is lying in a

hospital bed and someone else comes a long and stabs V again and kills her, TP act will relieve first

stabber. You can tick but for principle (but for 1st

stabbing victim wouldnt be in hospital). 2nd

element

maybe (if vic is wekaned by first wound) .Butfdi intervention by tpbreakscausal link

One further complication, going back to case on omission and this comes up in;

Evans [2009] EWCA Crim 650; [2009] 1 WLR 1999

Evans was a case involving a girl whod supplied heroin to her half-sister with in fact the mothers

knowledge and approval. So the victim injects herself with the heroin. Fails ill as a result and dies. Now

the half-sister and mom are there and they see this happening and they do nothing. The q is whether

they were liable for manslaughter. Not by supplying the drugs in the first place but by gross negligence


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in failing to get help for victim once theyd becomeaware that she was ill.

CA said yes and they applied the principle from Miller. in effect, they treated this as a situation where

the supplier, ds had created the dangerous situation or contributed to a dangerous situation (still case

that victim had injected herself) but CA thought it was enough to create a duty on them to get help once

they were aware the victim had fallen ill.

Evans is a controversial case as it has been argued it misapplied Millerand extended it beyond what was

legitimate given that the victim injected herself.Till overruled though, it serves as some qualification for

Kennedyprinciple in termsof drug suppliers (lesson to drug suppliers is after supplying bounce asap so

you arent aware of creating a dangerous situation)

Some other points with causation (just flagged up at this stage)

There are some particular problems that crop up with causation. For instance, with problems of bad

medical treatment after Ds act. The question is whether the mad medical treatment counts as an

intervening act. While it is free, deliberate, and informed, courts are reluctant to let victims off the hook

by blaming treatment victims received.Cheshire [1991] 3 AER 670holds that the bad treatment has to be

really of such a high degree (of independence and unreasonableness) that it relegates what D did into

history.

Final point is where the victim themself makes things worse.

Blaue [1975] 3 AER 446

V is stabbed by D, goes to hospital and is told she needs blood transfusion and refuses. As she was a

Jehovahs witness and said her religion forbade it. Doc said if you dont have one you may die. Her

response was so be it. And infact, she died.

CA held that the defendant had to take the victim as he found her so that if the victim had particular

religious beliefs which prevented her from receiving recommended treatments, its theds bad luck he

shouldnt have stabbed her.

By analogy its like the egg shell skull rule in tort (if youbash someone onthe head, you cant complain if

their skull is particularly thin and they suffered more harm than expected)

(III) VOLUNTARINESS

The requirement that criminal conduct should be voluntary is a general one, although it becomes rather

attenuated in some situational offences. Most of the issues about involuntariness arise where the

defendant is suffering from some physical or mental disorder and will be discussed further in the section on

Defences.


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In this context, voluntary is a limited requirement and generally means no more than that D should have

done some kind of conscious, willed act. So for example, if D kicks out while suffering from an epileptic

seizure where D is not conscious of what hes doing, thatd be an involuntary act. Theres no conscious

choice by d and so the argument is it was involuntary so you cant be fairly blamed and punished for it.

Some points:

- There are some offences which are sometimes called situational offences where this element

of voluntariness is pretty thin or absent altogether.

- E.g. Larsonneur(1933) 149 LT 542

- The other important point is that where the involuntariness proceeds fromsome kind of physical

or mental disorder D is suffering from e.g. epilepsy, courts regard this as presenting a problem

about social protection if that disorder could reoccur.

- Itsthat factor which has led to complex case law in relation to defences as there may be an

issue of which defence D is raising.

(B): MENSREA (THE MENTAL OR FAULT ELEMENTS)

Some kind of fault or culpability is generally thought to be necessary for criminal liability, but there are

many offences of strict liability in English law, and there are several different kinds of fault requirement. In

this lecture we will look in outline at three key culpable mental states: intention, recklessness and

knowledge.

When we talk about mensrea, we can be referring to the existence of 3 mental states

1. Intention

2. Recklessness3. Knowledge

All will be discussed further in the case of specific crimes.

Intention is a concept which has presented a lot of problems for the law. Notbecause the ordinary

meaning is problematic. E.g. most people know what it means. If a jury is asked if someone intended to

kill someone, they can probably figure out what it means. The problem has come in the murder cases

where D is trying to do something for some other reasons but foresees that some other side effects

might happen.

Classic hypotheticaleg. Suppose D puts a bomb on a plane intending to blow the plane up in flight but

the aim is to recover insurance money on the cargo but the d foresees the death of the passengers and

crew as virtually certain to occur, does the d intend to cause the death of the passengers and crew?

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2 - Elements of Crimes