ANTECEDENT LIABILITY

INTRODUCTION

 The importance and work done by the contemporaneity principle is most

evident in the context of antecedent liability. Antecedent liability arises
where, although some requirement of the actus reus or mens rea is absent,
and so the two cannot coincide in time (because they are not fulfilled),
liability may arise at some other point where the requirements of the actus
reus and mens rea are satisfied, and coincide in time. It derives from the rule
that one is liable for liberating oneself in a cause which results in a prohibited
consequence, known as actio libera in causa (liberation in a cause). However,
it seems that the principle of antecedent liability goes further. Understood as
a simple application of contemporeneity, its operation is extensive.
THE REACH OF ANTECEDENT LIABILITY

 The principle of antecedent liability finds particular application in the context of

involuntariness, but there is no reason for it to be restricted to this context. The principle of
contemporeneity is applicable to all criminal liability, and may be relied on either as a
defence against a charge (where the accused is able to show a disjunction in time between
his/her actus reus and mens rea) or as an alternative basis for liability, if the prosecution
can point to some other time where these elements do coincide in time. It does not matter
what requirement of liability an accused shows to be missing at any one point in time, s/he
can be convicted if the prosecution is able to show that all the requirements are satisfied
and coincide in time at some other point in time.
 In the context of involuntariness, it is fundamental to understand that antecedent liability
is not an exception to the rule that no liability can be imposed for movement during a state
of involuntariness. It is a straightforward application of the contemporaneity principle in
which we look to periods of time, usually antecedent to the onset of involuntariness (when
the accused was, necessarily, voluntary), to find whether the other requirements of the
actus reus (other than voluntariness – because it is necessarily satisfied) are also satisfied,
together, and contemporaneously, with the mens rea requirements.
REACH CONT.

 Consider, for instance, an individual, X, who is aware that s/he suffers from
epilepsy and who, for some reason, expects to suffer a seizure imminently. If s/he
nevertheless drives his/her vehicle, well knowing (and therefore with dolus
eventualis) that s/he may suffer a seizure, lose control of the vehicle, and possibly
strike another vehicle or pedestrian, and that, ultimately, another person, Y, could
be killed, and if this does, in fact, occur, X could be convicted of murder. Given that
liability cannot be imposed for movement during a state of involuntariness, liability
can nevertheless be imposed for conduct (causing death) prior to the onset of the
state of involuntariness. Thus, the actus reus (unlawfulness assumed) would consist
in anything that would qualify as a legally relevant cause of the death of Y, such as
setting the vehicle in motion.
 If, in the same circumstances, X does not (subjectively) foresee the possibility that
someone may be killed, but the reasonable person would foresee this and guard
against it, but X proceeds to drive anyway, killing Y in the process, X could be
convicted of culpable homicide.
CIRCUMSTANCE AND CONSEQUENCE
CRIMES
 Some conceptual difficulty may arise when the distinction between
circumstance and consequence crimes is observed. The problem seems to
arise, at least initially, because of the misconception that antecedent liability
is somehow an exception to the rule that liability cannot be imposed for
movement or otherwise during a phase of involuntariness. It is, as indicated
above, not such an exception. There are no exceptions to this rule. It is, to
reiterate, only an application of contemporaneity.
 This, however, can be taken too far. Burchell, for instance, is adamant that
antecedent liability cannot accommodate circumstance crimes. While there is
certainly a difference between the way antecedent liability ‘accommodates’
circumstance crimes and consequence crimes, antecedent liability may
nevertheless be imposed for both consequence and circumstance crimes.
Circumstance cont.

 To understand how, one must recall what it is that forms the prohibited conduct for a consequence
crime as opposed to a circumstance crime. For consequence crimes, it is the causing of a prohibited
consequence. Thus, conduct that qualifies as a legally significant cause of prohibited consequence, if
voluntary and unlawful, forms the actus reus in consequence crimes. A cause (such as stabbing the
victim) may, of course, only produce death some time after the attack. The victim of a stabbing may
die a few hours later, or days or months later. It does not matter that the victim dies during a time
when the attacker is involuntary, so long as the attacker was voluntary when s/he attacked and
stabbed the victim. So, for instance, if X voluntarily stabs Y in the chest at 20h00 one evening, but Y
only dies, as a result of the stabbing, at 04h00 the next morning, while X is asleep, X can nevertheless
be held liable on the basis of his voluntary act of stabbing the victim. It is worth observing that it is in
the nature of consequence crimes, and consequences in general, that they are preceded by a virtually
indeterminate chain or string of causes that stretch back in time, from the consequence, back into
eternity. Thus, consequence crimes lend themselves to liability based on antecedent liability because
the causation enquiry necessarily looks back in time, and may well identify conduct of the accused that
qualifies as a legally significant cause of the consequence. If the conduct of the accused is antecedent
to the onset of a state of involuntariness raised in the accused’s defence, then the conduct is
necessarily voluntary. Assuming this conduct is unlawful, it represents an actus reus, which, if
accompanied by the required mens rea, can be the basis for a conviction – in our example, of murder.
Circumstance cont.

 Circumstance crimes are different because the conduct that is prohibited is a discrete state of being – and
certainly not the causing of that state. This means that one cannot naturally enquire back in time to identify
causes of the prohibited circumstance. This does not exclude the possibility of imposing antecedent liability
in respect of circumstance crimes. It may well be more difficult for the prosecution, but it is not impossible.
What is required is to identify whether the prohibited circumstance stretched back in time to a time prior to
the onset of the state of involuntariness. At this time, conduct is, necessarily voluntary (antecedent to the
onset of involuntariness) so that, if the prohibited circumstance existed already, assuming unlawfulness, the
valid actus reus for liability may be identified. This actus reus, if contemporaneous with the required mens
rea, is a basis on which an accused may be convicted of a circumstance crime. Consider the following
scenario concerning the circumstance crime of being in possession of a prohibited substance. X has ordered a
large quantity of heroine which he intends to sell on the street for a massive profit. He sits in his car awaiting
the drop off, grows tired waiting on the delivery, and eventually falls asleep. The person carrying the drugs
(Z) arrives to find X asleep at the wheel. Z does not want to carry the drugs any further, so he opens the
unlocked passenger door and places the drugs on the passenger seat next to X. Shortly thereafter, the police
notice the car and the sleeping occupant. They open the unlocked passenger door and discover the drugs. X is
awoken and charged with possession of a prohibited substance. On these (admittedly artificial) facts, X enjoys
a complete defence of involuntariness. He was never in voluntary possession of the drugs. If, however, he
received the drugs, perhaps sampled some, and thereafter fell asleep, he could be convicted of possession of
a prohibited substance, provided the prosecution can prove that X was indeed in possession while he was still
voluntary.
CONCLUSION

 In conclusion, antecedent liability is a function of the contemporaneity

principle. It operates in the context of consequence crimes by reminding us to
consider possible causes (prior to the onset of involuntariness) of a prohibited
consequence (which occurs subsequent to the onset of involuntariness). In the
context of circumstance crimes, it requires that we consider whether the
prohibited circumstance precedes the onset of involuntariness. If there exists
such a legally significant cause (in the case of consequence crimes) or
prohibited circumstance (in the case of circumstance crimes), then, assuming
unlawfulness, the accused can be convicted if the required mens rea can be
established contemporaneously.