ACTUS REUS – CAUSATION/OMISSION

2013 QUESTION 3 ZONE A

Clause 17 of the Draft Criminal Code Bill (1989) reads as follows:
17(1) A person causes a result when he/she
a. does an act which makes a more than merely negligible
contribution to its occurrence or,
b. omits to do an act which might have prevented its
occurrence and which she/he is under a duty to do according
to the law relating to the offence.
(2) A person does not cause a result where, after he does such an
act or makes such an omission, an act or event occurs which
a. is the immediate and sufficient cause of the result;
b. he did not foresee, and
c. could not in the circumstances reasonably have been
foreseen.
How far does this restatement accord with the present law of
causation?

SAMPLE POINTERS
INTRODUCTION

 Issue of causation is only important when discussing result crimes. Result

crimes are basically where one’s actus reus consists of bringing about
some harmful consequence which society wishes to avoid.
 In result crimes for liability the issue then turns upon proof of an act or
omission performed with the requisite mental attitude which is casually
connected to the relevant harmful consequence.
 In simple terms to be accountable for a result crime the defendant’s acts
or omission must be shown to have contributed to the coming about of
 the relevant harmful result and, in addition, nothing abnormal should
have happened subsequently to that act or omission so as to render it
appropriate to ignore that contribution – Professor William Wilson.
 The defendant must be both factually and legally the cause of the harm in
question.
 FACTUAL CAUSATION – the easiest way to understand factual
causation is that it is a direct link to attribute the defendant’s conduct to
the result factually. The harm would not have occurred “but for” the
defendant’s conduct or actions (White (1910)).
 LEGAL CAUSATION – causation in fact is not necessary causation in
law. This is particularly true when the defendant has set a chain of events
and it must be determined if the defendant’s conduct still the
“substantial” or “operative” cause of the harm that occurred (Smith
(1959)). If on the other hand, the defendant’s action is not the cause, due
to the fact an abnormal event intervened (usually by victim or 3rd party)
there could be a break in the chain of causation (Novus Actus
Interveniens (NAI)). The break could mitigate the defendant’s liability
or absolve the liability completely.

WHERE THE PRESENT LAW AND THE CLAUSE IS IN LINE

 A person is not the cause of the result if the subsequent act that occurred
was not foreseeable by the defendant. This will be a restatement of the
principle in Roberts (1971) –

A young woman aged 21 accepted a lift from the defendant at a party to

take her to another party. She had not met the man before and it was 3.00
am. The defendant drove in a different direction to where he told her he
was taking her and then stopped in a remote place and started making
sexual advances towards her. She refused his advances and he drove off
at speed. He then started making further advances whilst driving and she
jumped out of the moving car to escape him. She suffered from
concussion and cuts and bruises.
 The defendant was convicted of actual bodily harm under S.47 of the
Offences Against the Person Act 1861. He appealed contending that he
did not intend or foresee a risk of her suffering actual bodily harm from
his actions and that he did not foresee the possibility of her jumping out
of the car and therefore her actions amounted to a novus actus
interveniens.

Stephenson LJ :
“Was it the natural result of what the alleged assailant said and did, in
the sense that it was something that could reasonably have been forseen
as the consequence of what was saying or doing. The Court of Appeal
came to the conclusion that it was right to tell the jury that it was their
duty to convict if they accepted the evidence of the girl. If the victim does
something so ‘daft’ or so unexpected, that no reasonable man could be
expected to forsee it, then it is only in a very remote and unreal sense, the
consequence of his assault, and is really occasioned by a voluntary act
on the part of the victim which could not reasonably be foreseen and
which breaks the chain of causation between the assault and the harm
or injury”

 The other principle that it preserved in this clause is the concept of

substantial contribution (Smith (1959)). Subsection 2(a) provides that
the intervening act must be immediate and sufficient cause of the result.
Although, the term “substantial” was not used, the terms used suggest
there must be a high degree of intervention and only then there is a break
in the chain of causation. The same could be said for the term
“substantial”.
 The terms used in the clause possess more problem than it solves. What is
meant by sufficient cause of the result? If we revisit the case of Mitchell
(1983) – is there sufficient cause of the result when the Mr Smith fell
onto Anne after being hit by the defendant and ultimately killing Anne?
The answer seems to be so and thus there will be a break in the chain of
causation. Thus, the decision would be wrong.
PRINCIPLES NOT INCLUDED IN THE CLAUSE

 The clause above does not highlight the principle put forward by Goff LJ
in Pagett (1983) where he stated that the defendant need not be the sole
cause or the main cause of the victim’s death, it being enough that his act
contributed significantly to that result.
 This principle is particularly important in areas involving 3rd party. The
idea is that the defendant should not be absolved of his liability simply
because some unforeseen even occurred or there was sufficient cause of
the result where 3 parties are concern and one party significantly
contributed to the result. For 3rd party, there should only be break in the
chain of causation if the intervention was “free, voluntary and informed
act” (Hart and Honare).
 There is no distinction in the clause between intervention by a 3rd party or
the victim.
 Which brings the next principle not addressed in the clause, the thin skull
principle. The idea of this principle is to “take the victim as you find
them”
 If the victim has a physical weakness which hastens death, the defendant
cannot claim a break in the chain of causation merely because a healthy
victim might not have died.
 Following this logic, a defendant should not be able to argue that the
chain of causation should be broken because the skull of the victim is a
lot thinner than the skull of a normal human being.
 The principle was applied in cases such as Blaue, Dear and Holland. In
such cases the argument was that the defendant should not be allowed to
argue that the victim’s subsequent acts should not break the chain of
causation just because it was not foreseeable by the defendant. For
example, victim refusing blood transfusion in Blaue after being stabbed
with the sole excuse that his a Jehovah’s Witness. Even if it can be
argued that Blaue was a policy decision and should be argued as such,
there is no excuse for Dear. The subsequent act of failed suicide which
aggravated the death did not absolve the defendant of his liability even
though it was not foreseeable.
 The clause completely ignores these principles which will basically throw
the decision of these cases in doubt. The clause would suggest decision in
Blaue, Dear and Holland is a wrong one.
  The clause also does not address intervention by the victim where the
victim makes a decision as a fully-informed and responsible adult
(Kennedy No 2). Will this cause a break in the chain of causation?
Ideally yes but the draft bill does not address that. The chain will only be
broken if the result was not foreseeable or if it was immediate or
sufficient cause of result.

CONCLUDING POINTS

 Although the draft bill codifies some of the principles and makes it easier
for lawyers to apply the law of causation, it does leave out many of the
principles applied by judges in the common law.
 Simplification is clearly what this area needs but over simplification is
not ideal as it overlooks some important principles especially the thin
skull rule principle.
 The general principles hide a lot of difficult questions, and the court will
always try to do justice even if the reasoning may sometimes seem out of
line with previous cases.
 Academics worry about the reasons for the criminal law and how this
influences rules on causation, but it’s difficult to know how far all of this
follows a single grand plan. After all, as Hart and Honoré say, “our
ideas of responsibility are part of being human and part of a society. So it
makes sense that our rules on causation will follow our general
understanding of causation, even if that doesn’t fit a perfect set of legal
principles”.

2013 QUESTION 2 ZONE B

‘English Law does not normally impose liability for failure to act
despite the fact that there may be compelling moral justifications
for doing so.’
Consider whether the current state of the law governing
omissions is satisfactory.

2012 QUESTION 2 ZONE B

Critically evaluate the law relating to criminal liability for
omissions. Should there be a general duty to assist persons in
peril?

SAMPLE POINTERS
INTRODUCTION

 The idea of liability arising out of omission is a controversial one. One

should only be criminally punished if one has done something unlawful.
This general principle is well accepted in the criminal law thus, it can be
very controversial if a defendant can be criminally liable for not doing
anything.
 Nevertheless, the position of the law is such that a defendant can be
punished due to omission.
 Jonathan Herring puts it as “[g]enerally in English criminal law a
person is not liable for failing to act … even if another person’s life is in
danger.” However, there are number of exception to this rule, “a
defendant is liable if he or she fails to act when under a duty to act.”
 In other words, a person can only be liable for non actions if there was a
legal duty placed on them by law and the failure to discharge such duty
will result in criminal liability.
 Legal duty must be distinguished from a moral duty owed by humans to
their fellow men. For moral duties, all that is affected is a person’s
conscience. If there is only a moral duty, and the person fails to discharge
it, then criminal liability will not follow.
  For example, as I am walking down the street, I see a woman being
robbed, here all I have is a moral duty to help her and if I do not do so
then I cannot be criminally liable for her subsequent injuries or death.
However, if I am a policeman, then there may be a legal duty on me to
help the woman and not doing so can result in criminal liability.

LAW ON OMISSION

 As mentioned above, law will only impose liability for failing to act in
certain situations.

Statutory

 Where a defendant was duty bound by a specific statue or law to act but
he willingly does not do so, he is liable of an offence.
 Examples of such offences are; failure to provide a breath specimen
under the Road Traffic Act 1988, or the willful neglect of a child under
the Children and Young Persons Act 1933.

Duty Arising from Contract

 Common law imposes a duty to act when a failure to fulfill a contract is

likely to endanger lives. This duty is imposed not only for the benefit of
the parties to the contract, but also to those who are likely to be injured by
a failure to perform the contract.
 R v Pittwood (1902) - where a duty was imposed on the defendant who
was a signalman, for failing to shut a level crossing gate when a train was
due, which resulted in a carter being killed. The gatekeeper was convicted
of manslaughter.
 R v Singh (1999) - a duty to act was imposed on a landlord who managed
a block of flats when one of the tenants died of carbon monoxide
poisoning. It was held that, the landlord had a duty to act since the gas
fires in many of the flats were unsafe and there had been many
complaints from other tenants. Therefore, he had sufficient information
about the dangers of defective gas fires, for him to have taken action.

Duty from Relationship

  Duties to act may arise where there is some kind of a relationship
between the two parties involved. Therefore, it goes without saying that
the closer the relationship between the parties, the more likely it is that a
duty to act will exist.
 Examples of such obvious relationships are; parents to their children,
between married couples and doctors to their patients.
 R v Gibbins & Proctor (1918) - the parents failed in their duty to act,
when they deliberately starved their seven year old daughter to death. The
court regarded the parent's duty towards the young child as so self-
evident and where therefore found guilty of murder.
 R v Hood (2003) - the defendant left his wife untreated at home for three
weeks after she injured herself in a fall. The court found the defendant
guilty of gross negligence manslaughter, because of his omission to act.

Duty arising from Voluntary Assumption of Responsibility

 A duty will be owed by anyone who voluntarily undertakes to care for

another person for whatever reason and that person if falls ill or in any
other difficulty, then there is a duty to get medical help.
 R v Instan (1893) - the defendant lived with her aunt, which suddenly
became ill and was unable to feed herself or to call for help. The
defendant didn’t give her any food or medical help and her aunt died. The
defendant was therefore found guilty of manslaughter by omission since
she failed to uphold a duty which she had taken on voluntarily.
 R v Ruffell (2003) - the defendant and the victim were friends. When the
victim overdosed, the defendant tried to revive him, but when he couldn’t
so he later just left him on his mother’s doorstep where he died. It was
held that, the defendant did owe a duty of care to the victim, as he had
assumed responsibility for him when he tried to revive him.

Duty arising out of Creation of Dangerous Situation

 There is a legal duty to act when a person who through his own fault does
an act (accidentally) creating a dangerous situation and when he becomes
aware of it, he must try and prevent or minimise the harm that could be
caused.
 R v Miller (1983) - the defendant who accidentally set fire to a mattress
and did nothing to put it out, was guilty of arson.
IS THE LAW SATISFACTORY?

 Mustill LJ in Airedale National Health Trust v Bland said that “the

English criminal law … draws a sharp distinction between acts and
omissions… the current state of the law is unsatisfactory both morally
and intellectually”
 It is worth noting that it must cases the judges created a duty in order to
do justice. Which means this could not be satisfactory as defendants were
retrospectively punished and it puts the citizens in a state of confusion as
there is no assurance if legal duty is owed or not in some situations.
 Therefore, the main question is whether liability for omission should be
allowed or not? If so to what extent?
 Andrew Ashworth is a strong supporter of the punishment for the
omission but at the same time he put some limitations on the punishments
of omissions.
 Ashworth talks of two different views on omission, firstly the
conventional view, where he suggests that criminal law should not punish
people unless and until in clear and serious cases.
 Secondly, the social responsibility view, where he is of the view that
there are times and situations where people help one another and further
says that individuals need others, and people living in the same society
does owe some duties to others living with them.
 Further he describes three more duties on the basis of social
responsibility, the duty to assist those in peril, the duty to take
reasonable steps towards law enforcement, and the duty to ensure the
health and welfare of one's children.
 Eric Mack (1980) argues that “when a person walk pass by a child who
is drowning in a pool should he be liable for the death of that child?
Using ‘but for' causation he can be argued that had the defendant not been
there the child would still have died at the same time and in the same
place. The omission failed to alter the status quo.”

 Many others claim that omission is just a matter of common sense and
does not need any statue or punishment for it, and omission cannot
commit a result, and unless and until a duty to act is not there, the
commission of omission is out of question.
  G. Williams (1978) in on the point that “A crime can be committed by
omission, but there can be no omission in law in the absence of a duty to
act. The reason is obvious. If there is an act, someone acts; but if there is
an omission, everyone (in a sense) omits. We omit to do everything in the
world that is not done. Only those of us omit in law who are under a duty
to act.”
 G. Williams opposing Ashworth's scope of liability for omission in a
way that the courts must be very clear in deciding these cases, and it
should be done in clear and open language. He talks in favour of not
punishing the omissions and saying that, ‘It is extraordinary to propose
that the criminal liability of omitters should be made more stringent than
the criminal liability of doers; and I have criticized the proposal on this
ground.
 Hogan (1987) on the other hand argues that, there should be two
conditions of a law before punishing omissions. One is that omissions be
clearly expressed and the other is punishing the defendant for omitting his
duty and "... not artificially treating him as a cause of the event he has not
brought about by his conduct..." He argues that there is no way you can
cause an event by doing nothing to prevent it. He goes further by giving
examples such as, if grandma’s skirts are ignited by her careless
proximity to the gas oven, the her grandson cannot be said to have killed
her by his failure to put out the fire. And that, no sensible doctor would
enter as the cause of her death, failure to telephone the fire bridge.
 Freeman (1994), he believes that, our duty to help others in distress
arises, when we have a clear opportunity and are in a privileged position
to help, we recognise their danger and know what is necessary to be done
to help, we have the ability to directly help them to relieve their distress
by an immediate action and we can do this at small risk, minimal cost and
at little inconvenience to ourselves.

CONCLUSION

 The position of the law as of now is clear in the sense that there will be
punishment for omission where there exist a legal duty to”act”. Failure to
act will result in criminal liability.
  I would also agree that the position of law on this matter is correct but
problems still do exist as to what situations exactly will give rise to a duty
to act. Here I would argue, that the intervention of Parliament is of the
utmost importance.
 Law needs to be clear as to the situations where an individual has a legal
duty to act. Failure thus can be justified with a criminal liability.

MENS REA – INTENTION/RECKLESSNESS

2014 QUESTION 3 ZONE A
Compare and contrast intention and recklessness as fault terms
governing criminal liability.

2014 QUESTION 3 ZONE B

In English law what is meant by:
(a) intention; and
(b) recklessness.
What do these two states of mind have in common, what
differentiates them, and why has there been uncertainty
surrounding their definition?

SAMPLE POINTER
INTRODUCTION

 The above are forms of mens rea in criminal law. For there to be criminal
liability, there must be an act done (actus reus) and the court must take
into account the mindset of the defendant at the time the offence was
created (mens rea).
 To put it in other words, if a defendant did something unlawful and he
wanted to do it, there is a strong case that he should be punished for it.
 Thus, the mens rea element is important in establishing criminal liability.
 The level of mens rea required varies for different crimes, to find the
mens rea one must look at the specific definition of a crime.
 The purpose of this essay will be look at the 2 forms mens rea given
above that is intention and recklessness, and then the essay will go on to
compare and contrast these forms of mens rea.

INTENTION
 Intention is critical when a court decides whether or not a defendant
should be convicted of a crime. In order to define intention we must break
it down into two forms: direct and indirect intention.
 Direct intention is the aim of the defendant. This is essentially, whether
the defendant would consider his action a failure if a desired consequence
did not occur as a result of his action.
 R v Mohan (1975) - Mohan was asked to slow down by a policeman, he
did, but when he got near the policeman he accelerated towards the
policeman who had to jump out of the way to avoid being knocked over.
Mohan was convicted of dangerous driving after it was judged that by
accelerating the car towards the policeman he had direct intention to kill
or seriously harm the policeman.
 This is summarised in the Court of Appeal judgement of James LJ where
he states that the appeal has failed because:

“The charge is an attempt to cause bodily harm by wanton driving. It has

to be shown to you that the appellant deliberately, without justification,
irresponsibly, drove his vehicle in such a manner as was likely to cause
some bodily harm.”

 Indirect intention (oblique) covers the situation where the consequence is

foreseen by the defendant as virtually certain, although it is not desired
for its own sake, and the defendant goes ahead with his actions anyway.
For example, I wanted to kill A so I planted a bomb in his house that goes
off killing his wife and children as well. However, I only had intention to
kill A and not the rest.
 R v Woollin(1998) - threw his baby across the room in a fit of rage. He
argued that he was aiming for the pram and had no intention of killing or
harming his baby. The baby missed the pram and hit a hard surface which
fractured his skull and later died as a result of his injuries. At first
instances and at appeal Woollin was convicted of murder. His conviction
was quashed by the House of Lords where his murder conviction was
substituted for manslaughter on the grounds that he did not have direct
intention to kill his baby and that his intention was indirect.
  The House of Lords used Lord Lane LJ’s judgement from R v Nedrick
(1986) to justify convicting Woollin of manslaughter. Lord Lane LJ
stated that a defendant can only have indirect intention when:

“The defendant recognised that death or serious injury would be virtually

certain, barring some unforeseen intervention, to result from his
voluntary act”

 Woollin realised that there was a risk of serious injury to his baby but he
did not believe this risk to be virtually certain and so he was not
convicted of murder.
 Intention is direct when the defendant has a desire to bring about a
particular result and it is indirect if he has knowledge that certain
consequence are virtually certain if he follows through with his plan.

RECKLESSNESS

 Recklessness is an alternative fault element for offences such as

manslaughter, criminal damage and offences against the person. In its
broadest terms, recklessness is the taking of an ‘unjustified risk’.
 Two forms of recklessness, subjective and objective recklessness
 Subjective recklessness was established in R v Cunningham (1957).
 Cunningham - here the defendant was charged with ‘administering a
noxious thing as to endanger life’.
 It was decided that the word ‘maliciously’ meant either: an actual
intention to do that particular type of harm that was in fact done, or
recklessness in the sense that the defendant when acting realised there
was some risk of such harm occurring.
 The second is subjective recklessness, and it will only hold Cunningham
to account if he had realised that there was a risk that escaping gas could
injure someone.
 Subjective recklessness requires the defendant to have foreseen the risk
himself.
 However, Parker (1977), held that where the accused ‘closes his mind to
the obvious’ he could still be reckless. Parker suggests that subjective
 recklessness is too fair for the accused, just because he didn’t consider the
risks
 Objective recklessness attempts to rectify this. Objective recklessness
was established in R v Caldwell (1982). It was held that a defendant is
still reckless even if he had not realised the risk, an ‘ordinary prudent
individual’ would have realised the risk. The jury are entitled to infer its
decision from all evidence available.
 In Caldwell, Lord Diplock added; ‘when recklessness establishes an
element of the offence, if the actor due to self-intoxication, is unaware of
a risk of which he would have been aware had he been sober, such
unawareness is immaterial.’ Courts no longer consider what the defendant
realised, but are imposing a test of what others would have realised.
 Objective recklessness requires that the risk must be obvious to the
reasonable man, and need not be obvious to the defendant himself.
Criticism of this is that this can make someone liable even if they were
incapable of realising the risk- Elliot v C (1983).
 Caldwell has since been overruled by the judgement in R v G (2003) -
where the defendants aged 11 and 12, lit some newspapers which set fire
to a wheelie-bin which set fire to a shop, causing £1,000,000 of damage.
On appeal they were found not guilty of arson as the jury believed that
Caldwell was wrongly decided.

SIMILARITY OF INTENTION AND RECKLESSNESS

 Intention and recklessness are similar in some respects.

 Firstly they both form part of the mens rea of crimes. For example in a
murder trial intention to kill must be proven in order for the defendant to
have had the necessary mens rea to be convicted of homicide. Likewise it
must be proven that the defendant was driving recklessly in order for him
to have the necessary mens rea to be convicted of causing death by
careless or inconsiderate driving.
 Both intention and recklessness are mental states that the defendant might
experience when he is performing the actus reus of a crime.
 Also they both have clear links to risk. Intention involves the conscious
taking of a risk in order to achieve an aim and recklessness involves
 taking an unjustifiable risk either consciously (subjective recklessness) or
unconsciously (objective recklessness).

DIFFERENCE BETWEEN RECKLESSNESS AND INTENTION

 There are differences between intention and recklessness. It could be

argued that intention is more thought out than recklessness.
 When a defendant has intention to commit a crime they are taking a risk
in order to achieve an aim. They have voluntarily chosen to take this risk
and are taking it as method of achieving their intention.
 Whereas recklessness is seen to be more carelessness, when a defendant
is reckless they may be aware of the risk they are taking but they are not
taking the risk in order to achieve anything.
 Culpability is also a major difference between intention and recklessness.
It is widely believed that defendants with an intention to commit a crime
deserve punishment because their mental state is guilty. However when it
comes to objective recklessness there appears to no culpability because
the defendant was not even aware of the risk that was being taken.
 Another difference between intention and recklessness is the link they
have to a reasonable person. Intention can be considered outside of what
is reasonable. A defendant can intend to commit a crime both rationally
(for example calmly calculating how to kill someone) and irrationally
(shooting someone in a fit of rage but still intending to kill them) either
way this intention is part of a guilty mental state. Unlike intention,
recklessness must be considered in relation to a rational person.
Subjective recklessness is still irrational even though the defendant was
aware of the risk, what makes it reckless is that a reasonable person
would not have chosen to do it. Objective recklessness is always judged
in relation to a rational person and cannot exist if it is not considered in
relation to a rational person.
CONCLUSION

 Both recklessness and intention provide their benefits. Intention carries

with it a higher punishment because there is a desire to achieve that result
which may be considered immoral.
 Recklessness is more towards the defendant just being careless and so the
degree of punishment it will carry it’s a low one.
 The good news is for the prosecution as some offences like S.47 and S.20
OAPA 1867 the mens rea include both intention and recklessness. Which
means if it is difficult to prove that the defendant desired the result, the
prosecution could always settled that he was nonetheless reckless thus
should still be punished.