Actus Reus: Causation and Omission

An attempt to understand the fundamental concept of Actus Reus in the Criminal Law.
Srinivas Atreya, 0519

CONTENTS

What is a Crime The elements of a Crime Actus Reus: Etymology and Definition Constituents of Actus Reus Causation Omission

INTRODUCTION This study will attempt to understand the concept of Actus Reus and the role of legal fault therein. In the study of crimes and criminal liability, it is fundamental to understand the definition of a crime. However, Law is concerned with relationships between individuals, rather than with the individual excellence of their characters and therefore it is difficult to have a precise definition of crime. Nevertheless, a few scholars, from time to time focusing on one or the other dimension of a prohibited act have defined crime. William Blackstone in his book on English law, Commentaries of the laws of England defined it as an act committed or omitted in the violation of public law forbidding or commanding it1. A crime constitutes two elements namely Actus Reus and mens rea and it is fundamentally necessary that each of them constitute in an act for that act to be called as crime. A mere intention not followed by an act cannot constitute a crime and similarly, mere Actus Reus ceases to be a crime as it lacks the mens rea. Traditionally conceived, the law relating to criminal culpability operates on the maxim Actusnon facit reum nisi mens sit rea or that an illegal or proscribed act (Actus Reus) must concur with a guilty state of mind (mens rea) in order to establish that a crime has been committed. In the juristic aspect Actus Reus represents the physical aspect of the crime and the term Actus Reus is, per Kenny, such result of human conduct as the law seeks to prevent2 and refers to the extrinsic, physical and objective elements of the offence, while mens rea is the mental, intrinsic and subjective element that underlies the commission of the forbidden act and which constitutes a species of the term legal fault3.Necessarily then, on the classical analysis, blameworthiness or fault is imputed into the very construction of our notions of crime. Actus Reus is the external element or the objective element of a crime. Etymologically, the term is Latin term for "guilty act" which, when proved beyond a reasonable doubt in combination
1 th

Sir William Blackstone, Commentaries on the Laws of England, vol 4, 17 edn, 1830, p.5 2 As cited in BLACKS LAW DICTIONARY (B.A.Garner ed.,1999) Actus reus 3 Glanville Williams BOOK OF CRIMINAL LAW (2003) at CHAPTER 3

with the mens rea, or "guilty mind", produces criminal liability. In order for an act to have been criminal, there must have been Actus Reus. One of the widest definitions of Actus Reus had been given by Glanville Williams and according to him, When we use the technical term Actus reus we include all the external circumstances and consequences specified in the rule of law as constitution the forbidding situation. Reus must be taken as indicating the situation specified in the Actus Reus as on that, given any necessary mental element, is forbidden by the law. In other words, Actus Reus means the whole definition of the crime with the exception of the mental element and it even includes a mental element in so far as that is contained in the definition of an act. This meaning of Actus Reus follows inevitably from the proposition that all the constituents if a crime are either Actus Reus or mens rea4. An Actus Reus consists of more than just an act. It also consists of whatever circumstances and consequences are recognized for liability for the offence in question - in other words all the elements of an offence other than the mental element. Various common law jurisdictions define act differently but generally, an act is a "bodily movement whether voluntary or involuntary and an act can consist of commission, omission or possession. The requirements of Actus Reus varies depending on the definition of the crime and they include various aspects including Time Place Person Consent Possession Preparation

Glanville Williams, BOOK OF CRIMINAL LAW, Criminal law: The general part, second edn, p 18

The general basis for imposing liability in criminal law is that the defendant must be proved to have committed a guilty act whilst having had a guilty state of mind. The physical elements are collectively called the Actus Reus and the accompanied mental state is called the mens rea. It is the fundamental duty of the prosecution to prove both of these elements of the offence to the satisfaction of the judge or jury beyond reasonable doubt. In the absence of such proof the defendant will be acquitted. An Actus Reus consists of more than just an act. It also consists of whatever circumstances and consequences are recognized for liability and this includes all the elements of an offence other than the mental element. For instance, section 399 of the Indian penal code makes preparation to commit dacoity an offence as preparation itself constitutes the Actus Reus5. A crime can be divided into two types. There are conduct crimes where the Actus Reus is the prohibited conduct itself. For example, the Actus Reus of the offence of dangerous driving is simply where no harm or consequence of that dangerous driving need be established6. The second type is known as result crimes where the Actus Reus of the offence requires proof that the conduct caused a prohibited result or consequence. Here, the Actus Reus of the offence of criminal damage is that property belonging to another must be destroyed or damaged7. Another very important factor that is related to Actus Reus is that it must be voluntary. Fundamentally, an act can only become criminal when the conduct of accused is "voluntary" or "freely willed". An involuntary act can occur for a variety of reasons including automatism where the defendant performs a physical act but is unaware of what he is doing, or is not in control of his actions, because of some external factor or reflex actions where sometimes people can respond to something with a spontaneous reflex action over which they have no control. Although slightly different, this is sometimes classed as a form of automatism and a classic example for this is observed in given in hill v baxter8, of someone being stung by a swarm
5

PSA Pillais Criminal Law, 10 Edn, p. 42 6 S.2 Road Traffic Act, 1988 (United Stated of America) 7 S.1(1), Criminal Damage Act 1971, United States of America 8 R v Quick [1973] 3 All ER 347.

th

of bees while driving, and losing control of the car. Another exception may also be physical force where the conduct may be involuntary in that it is physically forced by someone else, in which case there will be no Actus Reus. CAUSATION From the concept of Actus Reus arise two branches namely Causation and Omission. In a crime, an event of the result of a number of factors and a man is criminally liable only for the consequences of his conduct as he fore saw. Therefore, a man is said to have cause the Actus Reus of a crime if that acts would not have occurred without his participation in what was done. Generally, when the facts are direct, establishing the causal nexus between the act and the effect may not be difficult. However a causation can also occur without any direct physical act like for instance If the victim asks his way on a dark night and the accused with the intention of causing his death, directs him to a path that he knows will bring him to a cliff edge and the victim falls and dies, this would be murder though the accused doesnt have a role other than utter a few words. The problem of causation can be explained in the illustration given by Harris in Criminal Law wherein A, intending to kill be shoots at B but only wounds hi m slightly. A clearly has the requisite mens rea for murder, that is, he foresees and desires Bs death, Now let us assume that on his being taken to the hospital in an ambulance, a piece of masonry falls from a building on the ambulance and kills B, or , alternative, that B has rare blood disease which prevents his blood from coagulation so that the slight wound leads to his death or which it would not have done if he had not been suffering from, this disease or, alternatively, that B refuses to have the wound treated and dies if blood poisoning which would not have occurred if B had the wound treated . In all these cases, a problem of causation arise, i.e., did A cause s death for the purposes of the criminal law so that he can be convicted of murder? 9 Thus, there may not be any criminal liability if the result is too remote and accidental in its occurrence. In any case, when the definition of an actus Reus requires the occurrence of certain consequences, the prosecution must prove that it was the defendant's conduct which caused

Harriss Criminal Law, Ian Mclean & Peter Morrish, 1973 p.22

those consequences to occur. For instance, in murder the prosecution must prove that the victim died. There are two types of causations namely Causation in Fact, for which the "But For" Test is used as seen in the case law R v White and Causation in Law, for which, for example in homicide cases, the defendant's act must be the "operating and substantial cause of death" which is seen in R v Smith. Causation as a concept is also closely linked to negligence and where it has to be proved firstly that the conduct of the person was negligent and secondly, that but for the negligent act of the accused, the accident would not have occurred. Simply explained, Actus Reus should be casually connected to the act, which should be proved to be negligent. Therefore in the case law Suleiman Rahiman Mulani v. State of Maharashtra, the accused who was driving a jeep struck the deceased, as a result of which he sustained serious injuries. The accused put the injured person in the jeep to get the medical treatment but the person died. So to convict the accused, there must be proof that the accused drove in such rash and negligent manner and the death was the direct consequence of such rash as negligent driving. However in the absence of such evidence, no offence under section 304A of the Indian Penal Code was made out and the accused was acquitted of his charges. Another interesting aspect of causation is the concept of Minimal Causation, wherein when the death of a person is caused after medical treatment, it cannot be said that the treatment was inadequate or improper. The fundamental concept behind this is that the intervention of the doctor is in the nature of minimum causation and his intervention would have played only a minor part, if any, in death. OMISSION In the course of study of the concept of Actus Reus a question arises as to whether a person can be held criminally responsible for a failure to act. Here the general rule is that there can be no liability for failing to act, unless at the time of the failure to act the defendant was under a legal duty to take positive action and quoted from R v Miller "Unless a statute specifically so

provides, or the common law imposes a duty upon a person to act in a particular way towards another a mere omission to act [cannot lead to criminal liability]."10 By definition, omission involves a failure to engage in a necessary bodily movement resulting in injury. Similar to commission acts, omission acts can also be reasoned causally using the but for approach. As a general principle the outlines specified for criminal omissions may include 1. The omission is expressly made sufficient by the law defining the offense; or 2. A duty to perform the omitted act is otherwise imposed by law. So if legislation specifically criminalizes an omission through statute; or a duty that would normally be expected was omitted and caused injury, an actus Reus has occurred. However, there must also be a distinction between omissions and positive acts and this was highlighted in the Bland case11, where the House of Lords held that euthanasia by means of positive steps to end a patient's life, such as administering a drug to bring about his death, is unlawful. However, withdrawing medical treatment, including artificial feeding, from an insensate patient with no hope of recovery when it was known that the result would be that the patient would soon die, is lawful if it was in the patient's best interests not to prol life. A positive duty to act exists in various circumstances. 1. Duty arising from Statute In this case, the Liability for failing to act will be imposed where the defendant can be shown to have been under a statutory duty to take positive action. For instance, by simply failing to provide food for the child, or failing to obtain appropriate medical care, a parent could be held criminally liable for any harm that results. ong his

10 11

R v Miller [1983] 1 All ER 978 [1993] 1 All ER 821 (UK)

2. Duty arising from a contract This is where a person is under a positive duty to act because of his obligations under a contract where his failure to perform the contractual duty in question can form the basis of criminal liability. 3. Public Duty A person in a public office may be under a public duty to care for others. 4. Voluntary assumption of responsibility/reliance In common law there exists duty of care where there is a relationship of reliance between defendant and victim. Thus if someone voluntarily assumes responsibility for another person then they also assume the positive duty to act for the general welfare of that person and may be liable for omissions which prove fatal. 5. Duty due to defendant's prior conduct If the defendant accidentally commits an act that causes harm, and subsequently becomes aware of the danger he has created, there arises a duty to act reasonably to avert that danger.

REFERENCES
BLACKS LAW DICTIONARY

GLANVILLE WILLIAMS, TEXTBOOK OF CRIMINAL LAW PSA PILLAIS CRIMINAL LAW, 10TH EDN