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Criminal law

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Criminal law

William Wilson
This subject guide was prepared for the University of London International
Programmes by:

uu William Wilson, Professor of Criminal Law, Queen Mary, University of London.

This is one of a series of subject guides published by the University. We regret that owing to
pressure of work the author is unable to enter into any correspondence relating to, or arising
from, the guide. If you have any comments on this subject guide, favourable or unfavourable,
please use the form at the back of this guide.

University of London International Programmes

Publications Office
Stewart House
32 Russell Square
London WC1B 5DN
United Kingdom

www.londoninternational.ac.uk

Published by: University of London

© University of London 2016

The University of London asserts copyright over all material in this subject guide
except where otherwise indicated. All rights reserved. No part of this work may be
reproduced in any form, or by any means, without permission in writing from the
publisher. We make every effort to respect copyright. If you think we have inadvertently
used your copyright material, please let us know.
CRIMINAL LAW PAGE I

Contents
Module descriptor . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 1

1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 3
Introduction 4
1.1 The lawyer’s method 5
1.2 What does criminal law comprise? 6
1.3 Procedure 6
1.4 The sources of criminal law 7
1.5 Study materials 8
1.6 Online resources 9
1.7 Preparing for the examination 9
1.8 Getting started 9

2 The building blocks of criminal liability . . . . . . . . . . . . . . . . . 11

Introduction 12
2.1 General principles 13
2.2 The three basic elements in crime 14
2.3 Proving the elements of the offence 15
Am I ready to move on? 16

3 Actus reus: conduct and circumstances . . . . . . . . . . . . . . . . . 17

Introduction 18
3.1 What does the actus reus consist of? 19
3.2 Circumstances 24
Am I ready to move on? 25

4 Actus reus: consequences and their causes . . . . . . . . . . . . . . . 27

Introduction 28
4.1 Result crimes 29
4.2 Accountability: basic guidelines 30
4.3 Principles governing causation 31
4.4 Breaking the chain of causation 36
Am I ready to move on? 38

5 Mens rea: criminal fault . . . . . . . . . . . . . . . . . . . . . . . . . 39

Introduction 40
5.1 Objective fault 41
5.2 Subjective fault 41
5.3 Intention 42
5.4 Recklessness 45
5.5 Negligence 49
Am I ready to move on? 50

6 Coincidence of actus reus and mens rea . . . . . . . . . . . . . . . . . 51

Introduction 52
6.1 Temporal coincidence 53
6.2 Correspondence principle 55
6.3 Transferred malice: a qualification to the correspondence principle 56
Am I ready to move on? 57
PAGE II UNIVERSITY OF LONDON INTERNATIONAL
PROGRAMMES

7 Criminal homicide . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Introduction 60
7.1 Common elements in criminal homicide 61
7.2 Murder 63
7.3 Voluntary manslaughter 66
Am I ready to move on? 73
7.4 Involuntary manslaughter 74
Am I ready to move on? 80

8 Rape . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Introduction 82
8.1 Sexual Offences Act 2003, s.1 – rape 83
8.2 Conduct elements 83
8.3 Absence of consent 83
8.4 The presumptions 84
8.5 Procedure: relationship between s.1, s.75 and s.74 88
8.6 Mens rea 89
Am I ready to move on? 89

9 Non-fatal offences against the person . . . . . . . . . . . . . . . . . . 91

Introduction 92
9.1 Crimes of violence 93
9.2 Crimes against autonomy 99
Am I ready to move on? 108

10 Defences 1: failure of proof . . . . . . . . . . . . . . . . . . . . . . . 109

Introduction 110
10.1 The two types of defences 111
10.2 Involuntary conduct 112
10.3 Insanity 115
10.4 Intoxication 118
10.5 Crimes of basic intent and specific intent contrasted 121
Am I ready to move on? 124

11 Defences 2: affirmative defences . . . . . . . . . . . . . . . . . . . . 125

Introduction 126
11.1 Relationship between the defences 127
11.2 Public and private defence including self-defence 127
11.3 Meaning of ‘reasonable force’ 128
11.4 Scope of private defence 131
11.5 Duress 131
11.6 Duress of circumstances 137
11.7 Necessity 138
Am I ready to move on? 140

12 Property offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141

12.1 Theft 143
Am I ready to move on? 153
12.2 Burglary 154
Am I ready to move on? 157
12.3 Fraud 157
Am I ready to move on? 168
CRIMINAL LAW PAGE III

13 Criminal damage . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169

Introduction 170
13.1 Simple criminal damage 171
13.2 Aggravated criminal damage 174
Am I ready to move on? 175

14 Criminal attempts . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177

14.1 Retribution or prevention? 179
14.2 Actus reus 180
14.3 Mens rea 182
14.4 Impossible attempts 183
Am I ready to move on? 184

15 Participation in crime . . . . . . . . . . . . . . . . . . . . . . . . . . 185

15.1 Complicity 187
15.2 Elements of accessoryship 188
15.3 Joint enterprise liability 194
15.4 Difference in offence or liability 202
15.5 Withdrawal 204
15.6 Relationship between accessorial liability and inchoate liability 205
Am I ready to move on? 206
PAGE IV UNIVERSITY OF LONDON INTERNATIONAL
PROGRAMMES

NOTES
CRIMINAL LAW
MODULE DESCRIPTOR PAGE 1

Module descriptor
MODULE AIM
This module introduces students to the aims and principles of criminal law and helps them to
explain and evaluate offences and defences, and the general principles governing liability.

LEARNING OUTCOMES: KNOWLEDGE

Students completing this module are expected to have knowledge and understanding of the
main concepts and principles of criminal law. In particular they should be able to:

1. Describe the legal principles governing liability for offences against the person and property offences;

2. Describe the principles governing criminal defences;

3. Describe the legal principles governing liability for preliminary or inchoate offences and liability as an accomplice;

4. Explain the hierarchy of courts and the appeal process in criminal cases;

5. Explain the points of comparison and distinction between different offences within the same family, and different criminal
defences.

LEARNING OUTCOMES: SKILLS

Students completing this module should be able to:

6. Interpret a set of facts in order to identify legal issues arising, providing reasoned arguments and conclusions as to the
criminal offences which may have been committed and defences which may be available;

7. Identify strengths and weaknesses of areas of law in terms of underlying considerations of morality, principle and policy;

8. Communicate in a clear and concise manner, using accurate legal terminology;

9. Conduct straightforward legal research tasks using legal databases and the internet to locate primary and secondary
sources relevant to criminal law.

ASSESSMENT
Learning is supported by means of a series of activities in the subject guide, which develop
skills outcomes 6, 7, 9 and 10. Self-assessment questions also help students to test their
knowledge and understanding (outcomes 1–5). The formative activities also prepare
students to reach the module learning outcomes tested in the summative assessment.

Summative assessment is through an unseen examination containing two parts, Part A and
Part B. Students will be required to answer questions in both Part A and Part B. Part A of the
exam will consist of 15 multiple choice questions worth 25 per cent of the overall exam mark.
All questions in Part A are compulsory. Students will be required to answer three further
questions from a choice of six in Part B of the exam. Each question in Part B will be worth 25
marks and there is a choice of problem and essay questions that test both the knowledge
outcomes and skills outcomes 6, 7 and 8.

PERMITTED MATERIALS
Students are permitted to bring into the examination room the following specified
document: Blackstone’s Statutes on Criminal Law (Oxford: Oxford University Press).
PAGE 2 UNIVERSITY OF LONDON INTERNATIONAL
PROGRAMMES

NOTES
1 Introduction

Contents
Introduction 4

1.1 The lawyer’s method 5

1.2 What does criminal law comprise? 6

1.3 Procedure 6

1.4 The sources of criminal law 7

1.5 Study materials 8

1.6 Online resources 9

1.7 Preparing for the examination 9

1.8 Getting started 9

PAGE 4 UNIVERSITY OF LONDON INTERNATIONAL
PROGRAMMES

Introduction
This subject guide is designed to help you to learn, understand, apply and evaluate those
aspects of the criminal law which form the syllabus of the University of London International
Programmes Criminal law module. It is intended to be read in conjunction with your textbook
and has been designed to fit together with it. In each chapter of the subject guide you will be
directed to parts of the textbook, the virtual learning environment (VLE) or cases to be found
in the Online Library, with a view to answering questions about the subject. In this way your
knowledge and understanding of the subject is enhanced. Reading without thinking cannot
achieve this.
CRIMINAL LAW 1
INTRODUCTION PAGE 5

1.1 The lawyer’s method

Students new to law often think that being a lawyer is all about knowing a lot of law and
‘learning the cases’. Strangely this is not true. The most law you will ever know will probably
be around examination time when you have committed a lot of material to memory. As you
move from student to practising lawyer, much of this law will be forgotten. But you will have
an understanding of the basic principles of each of the subjects you have studied, and you
will have internalised the skills and competencies which are so valuable to lawyers’ clients.

Proficiency in criminal law involves a number of different skills and competencies,

including:

uu a knowledge of the rules and principles governing criminal offences

uu an ability to use books, libraries and the internet to discover these rules

uu a basic understanding of the rules of evidence and procedure

uu an ability to identify the rule(s) applicable to a fact situation and to apply them logically and
coherently.

Attaining these latter competencies is necessary to discharge effectively the day-to-day tasks
of a criminal lawyer – whether student, solicitor, advocate or judge. However, true mastery
requires something further. It requires also a critical and evaluative attitude. The criminal law
in action is not just a matter of doctrine. The purpose
of criminal law doctrine is the delivery of criminal justice and criminal justice is a
contingent outcome in which rule, process and context all play their part.

Understanding criminal law requires, therefore, an appreciation of the day-to-day workings of

the criminal justice system. Moreover, it requires an understanding of the resources of the
criminal law to produce substantive justice. The criminal law is not just a set of rules. It is
underpinned by ethical and political principles designed to ensure both justice to the individual
and protection to the community the individual inhabits. If the mechanical application of a
given rule to a fact situation acquits a dangerous or wicked person, or convicts someone
neither dangerous nor blameworthy according to ordinary standards, something has gone
wrong. Students should therefore be prepared to subject the rules to critical scrutiny. Lawyers
do this all the time, not least in court when their job is to fight their client’s cause. Sometimes,
they will be saying, in effect, ‘This is bad law and should not be followed’ or ‘This law was not
intended to cover this situation’, and so on.

Throughout this subject guide we shall be posing the question ‘Do you agree with this
decision?’ Take these questions seriously! Here is an example.

In a leading case called Ireland, which we will be looking at in Chapter 9, a man made a
woman’s life a misery by making a succession of telephone calls, usually silent ones.
Eventually she had a breakdown, suffering clinical depression. Obviously this man had done
something very wrong but the criminal law has no authority to punish him unless the thing he
has done is a criminal offence (the principle of legality). Is it? What offence had he
committed? Ireland was charged and convicted of assault occasioning actual bodily harm.
This requires proof of an assault, which means acts causing the victim to fear immediate
personal violence. Did those calls cause the victim to fear immediate violence? It requires
proof of actual bodily harm. Is depression ‘bodily’ harm? The House of Lords upheld his
conviction. If I were to ask you now ‘Do you agree with this decision?’ you might say
something like this. ‘Well the decision is right from the point of morality – what he did was
unforgiveable – but it is possibly not right from the point of view of the principle of legality (that
people should not be punished unless their action is prohibited by the criminal law). He had
not assaulted her. He had frightened her but that is not the same thing. And he had not
caused her actual bodily harm. Depression is mental harm not bodily harm.’ This is the kind of
critical thinking which you should be deploying.
PAGE 6 UNIVERSITY OF LONDON INTERNATIONAL
PROGRAMMES

1.2 What does criminal law comprise?

Crimes are distinguished from other acts or omissions which may give rise to legal
proceedings by the prospect of punishment. It is this prospect which separates the criminal
law from the law of contract and tort and other aspects of the civil law. The formal threshold at
which the criminal law intervenes is when the conduct in question has a sufficiently serious
social impact to justify the state, rather than (in the case
of breach of contract or trespass) the individual affected, taking on the case of the
injured party.

The American Model Penal Code provides a good restatement of the proper purposes of the
criminal law, namely:

1. to forbid and prevent conduct that unjustifiably and inexcusably inflicts or threatens substantial harm to individual or public
interests

2. to subject to public control persons whose conduct indicates that they are disposed to commit crimes

3. to safeguard conduct that is without fault from condemnation as criminal

4. to give fair warning of the nature of the conduct declared to be an offence

5. to differentiate on reasonable grounds between serious and minor offences. Which of these propositions were contradicted

in Ireland?

1.3 Procedure
The criminal law’s purposes are discharged by law enforcement and the machinery of
criminal justice generally. Law enforcement includes preventing crime, typically by policing
and also by bringing offenders to justice. The procedures vary according to the nature of
the offence committed. Criminal offences are classified according to whether they are
arrestable or non-arrestable. The former, which includes more serious crimes, allows a
suspect to be arrested without an arrest warrant.

The Crown Prosecution Service (CPS) has the overall responsibility for bringing proceedings.
It is their job to assess the weight of evidence, and decide, in the light of the evidence and the
public interest, whether a prosecution should proceed. Discretion, as much as the rules of
criminal law, is influential. So, for example, the CPS had the job of deciding whether to
proceed in the case of Ireland. It would have been a difficult decision to make.

It should be understood that, although official charging standards govern the exercise of the
CPS’s discretion over which offence to charge, there is no necessary connection between the
offence actually committed and that charged. Thus a person who has committed robbery may
be charged only with theft; a person who has committed a wounding may be charged only
with assault; a person who has committed murder may be charged only with manslaughter.
Undercharging carries a number of benefits. First, it may have evidential advantages. It is
easier to prove theft than robbery. Second, it may encourage a guilty plea. Third, it may
enable the case to be heard summarily rather than on indictment. The advantage for the
prosecution of summary trial is that it is less costly and more efficient. It is also thought to
increase the chances of conviction.

Offences are triable:

1. summarily – that is, before magistrates

2. on indictment – that is, in Crown Court before a judge and jury

3. either way – that is, either summarily or on indictment.

All defendants have a right to jury trial in respect of offences triable either way. In
practice, the vast majority of offences are heard by magistrates. Whether heard
summarily or on indictment, the conduct of the trial in each case is dictated to a greater
or lesser extent by the rules of evidence and procedure.
CRIMINAL LAW 1
INTRODUCTION PAGE 7

The formal accusation made against a defendant is in the form of an indictment or, where the
matter is tried summarily before magistrates, an information. This contains a statement of the
offence and particulars of the offence charged. Thus the indictment in the case of Ireland
would have been in the following form.

John Ireland is charged as follows:

Statement of Offence: assault occasioning actual bodily harm

Particulars: John Ireland, between the dates of September 1998 and May 2004, assaulted
Vicky Henderson, causing her actual bodily harm.

Judge and jury have separate roles in the conduct of the trial. The judge takes care of the law.
In Ireland, for example, counsel for defence queried whether causing someone psychiatric
injury was covered by the offence of assault occasioning actual bodily harm. The trial judge
ruled that it was. As a result, Ireland pleaded guilty and so the jury were not called upon to
give a verdict. When the judge gives such a ruling on a matter of law it is always open to the
defence to appeal the ruling. Appeals are made from Crown Court to the Court of Appeal (and
then the Supreme Court). This is what the defence did in Ireland, unsuccessfully as it turned
out.

The jury are the judges of fact. This means that it is for them ultimately to decide how much
weight to ascribe to the various pieces of evidence adduced by prosecution and defence.
They will not do this unsupervised. In the course of the trial, the judge will ensure that no
evidence is taken into account which is either irrelevant to the proof of guilt of the defendant
or, if relevant, less probative than prejudicial. After prosecution and then defence have
presented their cases, the judge will sum up and will review the facts for the jury. The judge
will then explain to the jury what the law is and the facts they have to find to sustain a
conviction. The judge will also tell the jury that the burden of proof is at all times on the
prosecution and that the standard of proof is ‘beyond reasonable doubt’. These instructions to
the jury are known as jury directions. If the judge makes a mistake in directing the jury this
can be appealed on the ground of misdirection.

1.4 The sources of criminal law

The criminal law is a creature of the common law, that is, judge made law. Some of the most
important crimes have their source in the common law. Murder and manslaughter are
obvious examples. However, the majority of criminal offences are now statute based. Such
offences may either have originated in statute or are common law offences whose elements
have been incorporated into statute, such as theft and most crimes of violence. In the latter
case, such statutes will not always define the full common law offence. This will leave the
common law with a significant role still to fulfil. In Ireland, for example, the offence charged
was a statutory offence but the full scope of the offence is a matter of judicial decision.

European Law and the European Convention on Human Rights are other key sources of
criminal law. It is important in particular to understand the Convention and its impact. Rarely a
month goes past without some aspect of domestic law being challenged
for being inconsistent with the Convention. Prime examples in the criminal field include
Dudgeon v UK, in which the court held that a legislative provision criminalising homosexual
activity between consenting adults in private in Northern Ireland was
a breach of Article 8. And in A v UK the court ruled that a common law defence of
reasonable chastisement which had led to the acquittal of a man who had beaten his step-
child with a garden cane did not provide adequate protection for the latter’s Article 3 rights.
In both cases Parliament acted quickly to eradicate the inconsistency.
PAGE 8 UNIVERSITY OF LONDON INTERNATIONAL
PROGRAMMES

1.5 Study materials

The core textbook for this subject is:

¢¢ Wilson, W. Criminal law. (Harlow: Pearson, 2014) fifth edition

[ISBN 9781292001944]. This product is the book alone, and does not come with
access to MyLawChamber.

Or

¢¢ Wilson, W. Criminal law. (Harlow: Pearson, 2014) fifth edition

[ISBN 9781292002019]. This comes with access to the eText and MyLawChamber.

Throughout this guide, this textbook will be referred to as ‘Wilson’. Often, section
references will be given to direct your reading. For example: ‘Wilson, Section 11.4.’

Please note that all references to Wilson in this subject guide are to the fifth edition (2014).
You will find guidance in each chapter of this subject guide as to which sections of the
textbook you should read for any particular topic. This textbook is essential for examination
success. This subject guide has been specifically designed to dovetail with it, through the
activities which appear in each chapter, so that the extra pieces of information and
understanding which you will require to pass your examinations will be easily available.
Reading the subject guide alone will not be enough. You will see why if you look at last year’s
Examiners’ report (available on the VLE)!

This textbook comes in two versions. Hard copy only and hard copy plus electronic support
in the form of MyLawChamber – a web-based set of materials including source materials,
updates, multiple choice questions, sample examination questions and skeleton answers. I
strongly recommend you buy this version rather than the hard copy only version. It is more
expensive but it has a great deal of value added. In particular it contains multiple choice
questions which will help you in the multiple choice questions in the examination paper. You
can access MyLawChamber from this address www.mylawchamber.co.uk Full log in details
are found in the core textbook. You are also advised to read a criminal law casebook of your
choice. Gobert, Dine and Wilson Cases and materials on criminal law most closely ties in
with the textbook but there are a number of others on the market which are equally useful
(see below). You will also need an up-to-date criminal law statute book. You will be able to
take an unannotated copy into the examination.

You are encouraged to read widely and you will find it useful to refer to other
textbooks on occasion. Here are some of the most useful for Criminal law.

¢¢ Ormerod, D. Smith and Hogan’s criminal law. (Oxford: Oxford University Press, 2015)
14th edition [ISBN 9780198702313].

¢¢ Ashworth, A. and J. Horder Principles of criminal law. (Oxford: Oxford University

Press, 2016) eighth edition [ISBN 9780198753070].

¢¢ Keating, H.M., S.R. Kyd Cunningham, T. Elliott and M.A. Walters Clarkson and
Keating: criminal law: texts and materials. (London: Sweet & Maxwell, 2014)
eighth edition [ISBN 9780414032972]

¢¢ Herring, J. Criminal law: text, cases and materials. (Oxford: Oxford University
Press, 2016) seventh edition [ISBN 9780198753049].

¢¢ Herring, J. Great debates in criminal law. (Basingstoke: Palgrave Macmillan, 2015) third
edition [ISBN 9781137475916]. You will find this book both helpful and enjoyable for
that part of the course and examination which requires you to analyse and evaluate
areas of criminal doctrine.

Please ensure that you use the latest edition of any textbook or casebook you choose.
CRIMINAL LAW 1
INTRODUCTION PAGE 9

1.6 Online resources

In addition to the hard copy materials, there are numerous online resources to help you with
your studies. You can access these through the VLE. The Online Library contains everything
you would find in a well-stocked law library and you should use it regularly, particularly for the
purpose of reading key cases. Such reading gives valuable understanding about how lawyers
reason their way through to conclusions and often contains little nuggets of information and
understanding which you can deploy to good purpose in your essays.

Criminal law has its own section of the VLE which contains lots of important materials,
including the complete subject guide and feedback to activities, computer-marked
assessments, newsletters, recent developments, updates, links to the Online Library and
other useful websites, a discussion board, past examination papers and Examiners’ reports.

There are also a full set of criminal law presentations on the VLE, including audio lectures and
accompanying slides. These presentations introduce you to each topic covered on the
syllabus and in the subject guide and dovetail with both. A good way of learning is, therefore,
to listen to the lecture and then turn to the matching part of the subject guide. It can also
usefully be referred to as a consolidation and revision aid.

1.7 Preparing for the examination

At the end of the course you will need to pass the examination in order to progress. The
subject guide and its activities, the textbook and audio presentations have been designed to
ensure that you will have covered everything necessary for success, and in sufficient detail.
Please ensure you approach your studies systematically, chapter by chapter, working through
all the questions and activities, and making reference to the textbook and other materials as
you do so. The feedback to activities in this guide is available on the VLE. Doing the activities
properly is crucial. This enables you to develop the legal skills which full time students get
from the small group tutorial classes when doing their law degree at the University. Reading
and remembering is not enough. You are being examined on your skills as a lawyer! At the
end of each chapter, ensure you have tackled all the ‘Am I ready to move on?’ questions
which have been posed.

Advice and guidance on how to answer essay and problem questions appears at intervals in
the subject guide. Further guidance and illustrations are to be found on MyLawChamber.
More information about the examination will be made available on the VLE along with
sample examination questions. You must ensure that you are up to date with the format of
the examination and any changes from previous years which will be detailed on the VLE.

1.8 Getting started

If you are new to law, you may find the subject a bit daunting at first, particularly if you come
from a non-English jurisdiction. But, in time, you will find it is just like any other academic
subject. Criminal law is full of interesting cases and ideas and we hope that as you read
through the subject guide and textbook you begin to find it enjoyable as well as interesting.
When you get to that stage you will know you are well on track for success.

Good luck!
PAGE 10 UNIVERSITY OF LONDON INTERNATIONAL
PROGRAMMES

NOTES
2 The building blocks of criminal liability

Contents
Introduction 12

2.1 General principles 13

2.2 The three basic elements in crime 14

2.3 Proving the elements of the offence 15

Am I ready to move on? 16

PAGE 12 UNIVERSITY OF LONDON INTERNATIONAL
PROGRAMMES

Introduction
This chapter introduces you to some of the key terms and principles in criminal law.

ESSENTIAL READING
¢¢ Wilson, Chapter 4 ‘Actus reus’, Sections 4.1 ‘Introduction’, 4.2 ‘Elements of
liability’ and 4.3 ‘Interrelationships of actus reus, mens rea and defences’.
CRIMINAL LAW 2 THE
BUILDING BLOCKS OF CRIMINAL LIABILITY PAGE 13

2.1 General principles

If you decide to bake a cake but have never done so before, you will probably wish to consult
a recipe. The recipe will contain ingredients general to all cakes. There are three such
elements, namely a shortening agent such as fat or oil, a raising agent such as eggs or baking
soda, and finally some form of farine such as flour. In addition, the recipe will contain
ingredients which are specific to the cake you wish to make. There is an unlimited variety of
such ingredients; for example a fruit cake contains dried fruit, sugar, spices and molasses.

The constituents of every human-made product can be approached in this way. Thus a
residential house also contains three essential ingredients, namely foundations, structure and
a roof. Again, the specifics of the house may vary enormously. The structure may be made of
wood, bricks, concrete, metal, plastic or glass, while the roof may be made of stone, pottery,
wood or dried vegetation.

The criminal law, as a human-made product – like cakes and houses – also contains these
general elements or building blocks. The basic elements of a cake or house are designed
primarily to make the product fit for purpose, and the essential elements of a crime are
similarly designed. The purpose they are fitted for is to provide clear rules of conduct and a
secure and fair basis for punishment.

In criminal law these basic elements are prohibited conduct (the external element), and an
accompanying mental element (the internal element). Again, the specifics of a crime may
vary enormously. The prohibited conduct may consist of snatching someone’s handbag,
hacking into their computer, poisoning their dog or even killing them. The mental element may
be intention, recklessness, wilfulness or knowledge. As a student of criminal law, your job
when analysing a case is always to ask the following questions in the following order.

uu Has the accused performed a prohibited act?

uu Was that act accompanied by a specified state of mind or mental element?

These elements can be reduced to an equation:

prohibited conduct + mental element = criminal liability

The Latin maxim actus non facit reum nisi mens sit rea is a traditionally used shorthand for
this equation. Its usual translation is ‘an act is not criminal in the absence of a guilty mind’; or,
more analytically, ‘criminal liability requires D to have done something criminally wrong (actus
reus) with an accompanying blameworthy state of mind (mens rea)’.

When reading textbooks and cases you will find different words and phrases used to
describe the conduct and mental elements in crime. There is no magic in any of these words
or phrases, and so at the outset you may find this short glossary of synonyms helpful.

uu The prohibited conduct element in crime is also known as the ‘external element’, the actus
reus or the ‘wrongdoing’ component.

uu The mental element is also known as the ‘internal element’, the mens rea, the ‘guilty mind’
or the ‘fault element’.

Use any of these as you see fit. I shall use all of them in this subject guide but I shall tend
to use actus reus and mens rea most often.

The actus reus and mens rea of a crime is to be found embedded in its definition. So assume
you are asked to decide whether it is murder where A has killed B, his wife, by poisoning her
drink with cyanide in revenge for cheating on him with C. Your task is to work out whether A
has committed the actus reus of murder, and whether he did so with the mens rea for
murder.

In Section 4.2 of Wilson, murder is defined as ‘an unlawful killing with malice aforethought’.
We can then separate the actus reus from the mens rea. The actus reus is the prohibited
act; that is, ‘an unlawful killing’. The mens rea is the accompanying
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mental element which renders that prohibited act punishable, which is ‘malice
aforethought’. At Section 4.2 you will also discover that ‘malice aforethought’ means ‘an
intention to kill or cause serious injury’.

To analyse the problem you therefore ask the following questions.

uu Has A unlawfully killed a human being? Answer, yes.

uu Did he do so intending to kill or cause serious injury to B? Answer, also yes.

When we look deeper into the criminal law we will discover that there is in fact a third
element in criminal liability, namely the absence of any defence. The third question to ask,
therefore, is:

uu Does A have a defence for the killing? The answer to this question is no. Revenge is not a
defence and so A is guilty of murder.

You should always follow this method when analysing a problem, whichever crime you are
considering.

2.2 The three basic elements in crime

2.2.1 Actus reus

The actus reus of a crime is the package of behaviour which the law prohibits. This
package may prohibit simply acting in a particular way, as in the offence of careless
driving, or it may prohibit bringing about a particular result, as in murder or manslaughter. It
may also prohibit doing something, or bringing about something in particular
circumstances, such as, in the crime of rape, having intercourse with another without their
consent. This can be represented as follows:

The actus reus of a crime comprises conduct, with or without a designated result,
including the presence of any circumstances necessary for that conduct to be
criminalised.

2.2.2 Mens rea

Liability for serious crimes requires proof that the accused was blameworthy in doing what
they did. This is because it is a fundamental ethical principle underpinning the criminal law
that the state has moral authority to punish its citizens only if they deserve it. This moral
principle – that justice in punishment requires punishment to be deserved – is known as the
principle of retribution. This principle reflects how we go about things in everyday life. In the
home, for example, children who break vases, ornaments or windows tend not to be
punished if the breakage was accidental, since punishment would be unfair. In the criminal
law the blameworthy states of mind most commonly used to justify punishment are:

uu intention

uu recklessness

uu dishonesty

uu knowledge

uu belief.

What you should notice about all these forms of mens rea is that they are states of mind.
In other words they reflect a conscious attitude of the accused to what they are doing: put
simply, they are aware of what they are doing. Having such an attitude is what makes them
deserving of punishment, since they are consciously defying a standard of conduct binding
on them. So a person who intentionally kills another, recklessly damages their property,
dishonestly takes their property or knowingly buys and sells their stolen property is not only
doing wrong: they also know they are doing wrong but do it nevertheless. Hence they
deserve to be condemned and punished.
CRIMINAL LAW 2 THE
BUILDING BLOCKS OF CRIMINAL LIABILITY PAGE 15

Note: This is not the only possible justification for punishment. Another is prevention.
Utilitarian theorists believe that punishment can never be deserved because it involves
harming people and ‘two wrongs do not make a right’. The utilitarian justification for
punishment is to reduce the incidence of anti-social and dangerous conduct through
punishment’s deterrent or preventive function. The contemporary view, which favours
retribution, is that for stigmatic crimes such as are dealt
with in this subject guide, prevention is not a moral justification for punishment as
punishment for these crimes requires the defendant to be conscious of their wrongdoing.
One area where there is less unanimity is the law of criminal attempts (see Chapter 14).
Where prevention comes into its own is with respect to those offences which have harm
prevention rather than moral wrongdoing as their primary focus.

Such offences often have a fault element which requires no conscious awareness of doing
wrong: careless driving and gross negligence manslaughter are examples of these. Other
crimes need no fault element at all. These are known as crimes of strict liability: most
driving offences are of this nature. Such offences are justified as being not contrary to
principle because they do not tend to involve social stigma or carry imprisonment as a
potential punishment.

2.2.3 Defences
The third element in criminal liability is that of criminal defences. Defences block criminal
liability although the elements of the offence (actus reus and mens rea) are present.
Some of the more common defences are self-defence, insanity, consent, duress and
necessity.

Defences involve one of two moral claims to avoid liability.

uu The first is that it would be unfair to punish the accused, although their act was wrongful,
because they were, in the words of H.L.A. Hart, deprived of ‘the capacity or a fair opportunity
to conform’ to the prohibition (Punishment and responsibility, 1968). Such defences, of which
duress and insanity are examples, are known as excuses.

uu The second is that although the definition of the offence is satisfied the act of the accused was
not wrongful because of special circumstances. Such defences are known as justifications.
An example is self-defence.

The fact that defences operate outside the boundaries of the offence definition has one very
significant consequence. If an element of the offence definition is not present but the accused
does not know this when they are acting, they still escape liability. For example, if A has
intercourse with B believing that she is not consenting when in fact she is consenting, A is
not guilty of rape, since one of the basic elements of the offence (actus reus) is absent. This
is not the case with defences. To rely on a defence there must not only be a good reason for
the accused acting as they do, but also the accused must act for that reason.

ACTIVITY 2.1
Read Wilson, Section 4.3 ‘Interrelationships of actus reus, mens rea and defences’ and
consider whether the court was right to convict Dadson of malicious wounding and
what problems the case provokes.

2.3 Proving the elements of the offence

2.3.1 Burden of proof

Suppose A shoots B dead in broad daylight with 100 witnesses to the killing. She is
charged with murder. A admits what she did but claims it was an accident. In other words
A is making a claim about her mens rea. She is saying that because the killing was an
accident this means that she did not intend to kill or cause grievous bodily harm to B.
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In Woolmington v DPP [1935] AC 462 the House of Lords had to consider whether the fact
that the actus reus was satisfied meant that the burden was placed on A to prove that the
killing was an accident. The famous conclusion it reached was that the burden of proof did not
pass to A, and never would. People are assumed innocent until proven guilty. This means
that in respect of all the elements of all offences the burden of proof is on the prosecution.
So with respect to the actus reus the prosecution must do the proving, and it must prove
every bit of the actus reus. For example, the actus reus of the crime of rape is having
intercourse with a person without their consent. This means that the prosecution must prove
to the satisfaction of the jury both that sexual intercourse between the two parties took place
and that the intercourse was non-consensual.

Again, with respect to the mens rea, the prosecution must do all the proving. For example,
in a case of theft of a wallet, the prosecution must prove that D took V’s wallet intending
never to return it; or in a case of handling stolen goods, that D knew or believed the goods
she was handling were stolen goods.

Finally, with respect to defences, again the prosecution must do the disproving. For
example, it must prove that D was not acting in self-defence or was not acting under duress.
Here, however, a slight qualification is needed. The prosecution does not bear this burden
with respect to defences unless the defence first adduces some credible evidence that D
may have been acting in self-defence or under duress. In other words, the prosecution does
not have to counter every defence the accused may possibly raise, but only those which are
worthy of being taken seriously. This evidential burden on the defence is not heavy,
however; it is simply designed to ensure precious court time is not wasted proving the
obvious.

2.3.2 Standard of proof

Consonant with the principle that a person is considered innocent until proven guilty, the
prosecution must prove each and every element of the offence ‘beyond reasonable doubt’.
This means that the jury or magistrates must not convict unless the prosecution has made
them sure that all the elements of the offence are present. If, therefore, the jury is convinced
that A took a handbag belonging to V (actus reus) and that the taking was dishonest (mens
rea) and think that it is probable, but without being sure, that it was A’s intention to keep the
handbag permanently (mens rea), it must acquit of theft.

Am I ready to move on?

Are you ready to move on to the next chapter? You are if – without referring to the
subject guide or Wilson – you can answer the following questions.

1. What are the three elements which make up criminal liability?

2. What does actus reus mean?

3. What does mens rea mean?

4. What are crimes called where the prosecution does not have to prove mens rea?

5. If D confesses to having committed a crime but claims he did so under duress, does D have to prove the duress?

6. There are two types of defences. Explain what they are and give examples of each.

7. Dadson shot an escaped convict. It was at that time lawful to shoot an escaped convict. Why then was he found guilty of
unlawful wounding?

You can test your knowledge of this chapter though the online multiple choice
questions available at www.mylawchamber.co.uk
3 Actus reus: conduct and circumstances

Contents
Introduction 18

3.1 What does the actus reus consist of? 19

3.2 Circumstances 24

Am I ready to move on? 25

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Introduction
The criminal law has no business punishing us for our thoughts, only for our actions or
deeds. Even a criminal attempt requires the defendant to have acted upon their decision to
kill someone, injure them or steal their property. Until then, they are free to plan the crime,
obtain the poison and reconnoitre the place contemplated for the commission of the crime.
It is only when they put their plan into action that the criminal law can get involved.
CRIMINAL LAW 3
ACTUS REUS: CONDUCT AND CIRCUMSTANCES PAGE 19

3.1 What does the actus reus consist of?

The actus reus in crime comprises:

uu conduct (always)

uu any circumstances necessary to render that conduct wrongful (if any are required)

uu result (if any is required).

In this chapter we will concentrate on the conduct and circumstances elements of actus
reus.

3.1.1 Conduct: the act requirement

The core element of criminal liability is some form of prohibited conduct. Usually this
prohibited conduct will involve a wrongful act. Identifying an act is therefore a key task for
the prosecution. Although there are exceptions, generally if the defendant has not acted there
can be no liability. This principle is known as the ‘act requirement’.

3.1.2 What is an act?

There are two components to acts. The first is a ‘bodily movement’ (American Model Penal
Code). The second is that the bodily movement be ‘voluntary’.

A bodily movement
The conduct element in murder consists of any act which causes the death of a human being.
There is no need for an act of violence; any act which causes death will do. Poisoning the
victim’s drink is an act. Cutting the brake cables of the victim’s car is an act. In Hayward
(1908) 21 Cox CC 692 it was sufficient that the accused threatened and chased his victim,
who consequently died of a heart attack.

The corollary of this is that if A’s contribution to the occurrence of a criminal harm can be
described only as ‘doing nothing’ or ‘not lifting a finger’, she cannot be held criminally
accountable for that harm.

ILLUSTRATION 3.1
Noor sees Parveen, a blind woman whom she does not like, about to step out into a
road, unaware that a lorry is approaching at great speed. Noor does nothing to warn
Parveen, who dies in the resulting crash.
Here there can be no criminal liability in respect of Noor. Parveen did not die as a
result of any bodily movement on the part of Noor. Doing nothing is not an act.

The bodily movement must be voluntary

The second component of the act requirement is that the bodily movement is
voluntary. In Bratty v A-G for Northern Ireland [1961] 3 All ER 523 HL, Lord Denning
explained this as follows:

No act is punishable if it is done involuntarily: and an involuntary act in this context…

means an act which is done by the muscles without any control by the mind, such as a
spasm, a reflex action or a convulsion; or an act done by a person who is not conscious of
what he is doing, such as an act done whilst suffering from concussion or whilst
sleepwalking…

ILLUSTRATION 3.2
Yasmin is waiting at the kerbside waiting to cross a busy road. Aisha trips over a
brick and stumbles into Yasmin, thus propelling her on to the road. Yasmin is
injured in the resulting collision with a car.
Aisha cannot be criminally liable because her act is involuntary. She was not in
control of the actions which led to Yasmin’s injury.
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Where a defendant has no control over what they are doing they are said to be acting in a
state of automatism. Like insanity, its close cousin, automatism is a defence to criminal
liability: both will be looked at in detail in Chapter 10 of this subject guide.

3.1.3 Am I able to identify the act component in an actus reus?

To decide whether D has committed the actus reus of a crime you need to:

uu find the definition of the crime

uu distil from that definition the actus reus

uu identify from that actus reus the act of the defendant which you are to rely on in establishing
that actus reus.

ACTIVITY 3.1
Let’s see if you can do this in relation to theft. Read Wilson, Section 14.2.A.1 ‘The
appropriation’, Sections (a) ‘Assuming rights of ownership’, (b) ‘Insubstantial
appropriations’ and (c) ‘The relevance of consent or authority’ and answer the
following questions.
a. What is the actus reus of theft?

b. What does the actus reus component of theft known as ‘appropriation’ in theft mean?

c. If V lends D his book and a week later D decides to keep and sell the book, does D need to sell the book to satisfy
the act component of the actus reus?

ACTIVITY 3.2
Consider the following cases and answer the question below.
a. Aftab has an infectious respiratory disease. He kisses Miah. Miah catches Aftab’s disease and suffers serious
illness.

b. John has a heart attack while driving his car. He loses consciousness and crashes into Margaret, injuring her.

c. Vikram pushes Chen. Chen falls onto Isobel who falls over and breaks her leg.

d. Peter is driving a car with Bella, his dog, in the back seat. Bella unexpectedly jumps on to Peter’s lap, causing him
to lose control of the car and go through a red traffic light.

e. Imran, a practical joker, explodes a paper bag behind Adele’s back. Adele falls over in fright, bangs her head and
loses consciousness.

f. Suki, Afzal’s teacher, tells Afzal that he has failed his final year examinations. In despair, Afzal commits suicide.

g. George overhears Hui tell Wen that he intends to kill Ming. George makes a note of this but does not tell the
police. The next day Hui kills Ming.

Consider in relation to each of the above cases whether, assuming the various parties
are charged with a criminal offence, the act requirement is satisfied. In each case you will
need to identify what the act is, if any, whose act it is and if the act is voluntary. You are
not being asked whether a criminal offence has been committed.
This depends upon other matters such as the presence of mens rea, causation and
defences. If you find the answers to any of these questions difficult, read Wilson,
Sections 4.1–4.4 again. Do not move on until you are satisfied with your answers and
your level of understanding. If you have a study partner, why not talk about the
questions with them?

3.1.4 Exceptions to the act requirement

There are three exceptions to the usual rule that criminal wrongdoing (actus reus)
requires an act. Certain crimes do not require any act at all. These include what are
termed situational crimes, crimes of possession and crimes of omission.
CRIMINAL LAW 3
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Situational crimes, crimes of possession and crimes of omission

Although the conduct element in crimes generally is an act, there are some exceptions.
Criminal liability is often based upon a failure to act as the law requires, as in failing to wear
a seatbelt, failing to tax one’s car, failing to submit a tax return or failing to display a licence
plate. Such offences are typically statutory strict liability offences designed for regulatory
rather than retributive purposes. They are known as statutory crimes of omission.

Criminal liability may also on occasion be based upon being in possession of a prohibited
article; for example controlled drugs, extreme pornography, offensive weapons or articles
for use in terrorist offences. These again are statutory crimes and are known as crimes of
possession.

The final exception is what is termed ‘situational liability’. The prohibition for these offences is
not some form of act but, similar to the other two exceptions, simply being in a prohibited
situation. For example, it is a crime to be drunk in a public place, or to be drunk in charge of a
vehicle, or to be the owner of certain types of dogs (such as a pit bull terrier) or to allow a dog
to be dangerously out of control in a public place.

The problem posed by both possession offences and situational liability is that criminal liability
does not depend upon the defendant having chosen to be in possession or be in the
prohibited situation. In other words no wrongdoing is required. The offence in the case of
owning a pit bull terrier is constituted although the dog was by way of an unsolicited gift and
although the defendant believed the dog to be of another breed. The offence in the case of
the out-of-control dog is constituted although the defendant performed no act and took
reasonable steps to keep the dog under control (see Elvin [1994] 1 WLR 1057). In relation to
crimes of possession, a person can be guilty of being in possession of a dangerous weapon
when they believed
the article in their possession was, for example, a torch and not, as it subsequently
transpired, a taser (Deyemi [2008] 1 Cr App R 25).

ACTIVITY 3.3
Read Wilson, Section 4.5.A ‘Situational liability’ and B ‘Possession offences’ and
answer the following questions.
Why do commentators object to the decisions in Winzar (1983) and Larsonneur
(1933)? Do you agree that they were objectionable?
Is the decision in Robinson-Pierre consistent with Elvin? Is it a good decision?

Omissions and commissions

We have seen how a failure to act may serve as the actus reus of an offence where the
defendant is placed under a statutory duty to act as the statute requires. These are known
as crimes of omission. This is an exception to the act requirement in criminal law. However,
since the behaviour demanded by the statute is clearly specified and is not onerous in its
demands, it is not contrary to principle.

A more controversial exception to the act requirement concerns crimes of commission. Can
these be committed by omission? Crimes of commission are those crimes whose definition
includes an actus reus which satisfies the act requirement, but whose result component can
be caused by doing nothing. For example, the actus reus of murder is ‘an unlawful killing’.
Dictionaries define ‘kill’ as ‘an act of killing’, but also define it simply as ‘causing death’. An act
of killing involves some affirmative action such as a stabbing, a shooting, a beating, a
poisoning, a suffocating and so on. But it
is possible to ‘cause death’ by doing nothing. For example, it is a perfectly correct use of
language to say that a parent who gives her baby no food so that it dies causes the death of
the child – and indeed ‘kills’ the child. The controversy concerns how far this principle should
stretch. Only one person can pull a trigger, but every passerby who sees a baby drowning in
a puddle but does nothing to help can be said to ‘cause’ the baby’s death. Are they all to be
charged with murder? How do we ensure that only the truly deserving suffer conviction and
punishment?
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Key requirements for criminal liability

To ensure the net of criminal responsibility is not spread too far, there are certain key
restrictions on criminal liability in cases of harm caused by omission.

1. The conduct element of the crime in question must be capable of commission by omission.

2. The circumstances must be such as to create a legal duty to act.

3. The defendant’s failure to act must be in breach of that duty.

4. The defendant’s failure to act must be voluntary.

5. The harm must be caused by the omission.

1. The conduct element of the crime in question must be capable of commission by omission
Most result crimes can be committed by omission. This includes theft, murder, criminal
damage, fraud and most forms of manslaughter. Some, however, cannot. The definitions of
some offences specify or imply that only acts are sufficient. Assault is one. So in R v Dunn
[2015] EWCA Crim 724 D was charged with indecent assault. What he had done was to
cause a 15-year-old girl to masturbate him. The Court of Appeal held that the offence was not
made out. Indecent assault requires there to be an assault. An assault requires some form of
act on D’s part. Here the act was the girl’s, not his. D had committed an offence but not this
one. This offence was causing a child to engage in sexual activity (s.10 Sexual Offences Act
2003).

ACTIVITY 3.4
Read Wilson, Section 4.5.D.2 ‘Omissions: the common law approach’ and find and
note down for later reference some other crimes which cannot be committed by
omission.

2. The circumstances must be such as to create a legal duty to act

Assuming the offence is capable of being committed by omission a successful prosecution
can occur only if the defendant’s omission was in breach of a legal duty to act. This is why
parents may be guilty of homicide for failing to feed their children, or for neglecting them.
They are guilty because parents owe a statutory duty of care to their children. The number of
duty situations are limited. They can be found in Wilson, Section 4.5.D.3 ‘Circumstances
giving rise to a duty to act: duty situations’ and need to be learned.

ACTIVITY 3.5
Read Wilson, Section 4.5.D.3 ‘Circumstances giving rise to a duty to act: duty
situations’ and consider which, if any, of the following cases place A under a duty to
act and, if a duty does exist, what is the source of that duty. When you have done this,
consider whether, on the basis of your answers, the range of duty situations is either
too narrow or too broad. Write down your conclusions and the reasons for them.

a. A is a swimming pool attendant. He sees V, a swimmer, struggling out of her depth in the pool.

b. A is the sister of V. She sees V struggling out of her depth in the pool.

c. A is the mother of V. She sees V struggling out of her depth in the pool.

d. A is the son of V. He sees V struggling out of her depth in the pool.

e. A is the owner of the swimming pool. She sees V struggling out of her depth in the pool.

f. A is the mother of T (aged 10) who has invited V, his friend (also aged 10), to go swimming with him at the local
pool. A sees V struggling out of his depth in the pool.
CRIMINAL LAW 3
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g. A and V are an unmarried couple who live together. A sees V struggling out of his depth in the pool.

h. A, who is supervising her child at a swimming pool, drops an ice cream accidentally at the poolside. V (a child)
slips on the ice cream and falls into the pool. A sees V struggling out of her depth in the pool.

In the absence of such a duty of intervention or rescue an omission, however reprehensible,

cannot form the basis of a criminal prosecution. In the famous example of Sir James
Fitzjames Stephen:

A sees B drowning and is able to save him by holding out his hand. A abstains from doing so
in order that B may be drowned, and B is drowned. A has committed no offence.

(A digest of the criminal law, 1887)

This makes it important to know whether the conduct of the accused is an act or an omission
because a person’s criminal liability depends upon it. For example, if in a variation of the
above example, A holds out his hand for B to grasp and then removes his hand from B’s grip
when realising B is his deadly enemy, is this a case of omission or commission? If it is the
latter then A is guilty of murder: if the former then it is nothing.

So much hangs on a simple question of definition. The usual definition of an act, as we know,
is ‘a bodily movement’. Since A has moved his body then, assuming death would have been
prevented by maintaining his grip, A seems to be guilty of murder. Simple in theory, but not so
simple in practice. To understand why you will need to read Wilson.

ACTIVITY 3.6
Read Wilson, Section 4.5.D.1 ‘Acts and omissions: what’s the difference?’ and answer
the following questions.
a. Why were the doctors in Airedale NHS Trust v Bland (1993) not guilty of murder for switching off the machine
keeping Anthony Bland alive?

b. Do you think this is the right decision?

c. If Anthony Bland’s parents had switched off the machine out of compassion for his position would they have been
guilty of murder?

3. The defendant’s failure to act must be in breach of that duty

D’s failure to act does not necessarily mean that D is in breach of duty. For example, in
cases where D has a duty of rescue but failed to rescue someone, D is not liable for a failure
to rescue if:

uu they did as much as could be expected in the circumstances uu

performance of the duty was impossible uu the failure to act was justified.

ACTIVITY 3.7
Read Wilson, Section 4.5.D.4 ‘Circumstances governing the scope of the duty’ and
note down examples of how a person can or has avoided liability for omitting to act on
the basis of the above three situations. Retain these notes for future reference.

4. The defendant’s failure to act must be voluntary

If D’s failure to act was due to his being unconscious or being restrained, the failure is
involuntary and cannot form the subject matter of a criminal offence even though D was
under a duty of intervention.

5. The harm must be caused by the omission

The prosecution must be able to prove that the defendant’s breach of duty caused the
harm. In Morby (1882) 8 QBD 571 a parent failed to call for medical support for his ailing
child. The child subsequently died of smallpox. The parent was convicted of
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manslaughter at first instance, but the Court for Crown Cases Reserved allowed the
appeal, since the prosecution could not prove that prompt medical attention would have
saved the child. Put another way, the prosecution could not prove that the defendant’s
failure to perform his duty had caused the infant’s death since the child might have died
anyway.

ACTIVITY 3.8
Can you remember what you have learned so far? Let’s see. Read Wilson, Section
4.5.D ‘Omissions and crimes of commission’ and then complete the following.
a. Name three crimes which cannot be committed by omission.

b. For result crimes, how does the criminal law ensure that liability for failing to prevent a result does not criminalise
too many people?

c. Under what circumstances is a person placed under a duty to act to prevent harm?

d. Does a sibling owe a duty to other siblings?

e. Do offspring owe duties to parents?

f. Do live-in partners owe a duty to each other?

g. Do mountain climbers owe a duty to each other?

h. Assault is one of those few result crimes which cannot be committed by omission. Why then was the defendant in
Fagan v MPC (1969) (Wilson, Section
8.1.A ‘Temporal coincidence’) found guilty of assault when he refused to remove
his car which had been inadvertently parked on a policeman’s foot? It might be
helpful to read the case report in the Online Library.

i. Read Wilson, Section 4.5.D.3(d) ‘The duty to avert a dangerous situation caused by the defendant’ and (e) ‘Miller
and beyond’. How does the case of Evans (2009) extend the principle in Miller (1983)?

j. What reason did the House of Lords give for deciding that if doctors turned off Anthony Bland’s life support
machine this would be an omission, not an act?

k. Consider the case of Morby (1882). Is it ever possible for the prosecution to prove, beyond reasonable doubt, that
V would not have died when he did if D had sought prompt medical care? Does this put an undue burden on the prosecution?

3.2 Circumstances
As was outlined in Chapter 2 of this subject guide, the definition of certain crimes requires
proof that certain circumstances existed which convert what would otherwise be an innocuous
act into a criminal act. Obvious examples include rape and assault, both of which can be
committed only where the victim does not consent. Absence of consent, for these crimes, is
therefore a circumstance which can convert an ordinarily quite lawful act (sexual intercourse
or a simple touching) into the actus reus of a crime.

ACTIVITY 3.9
Look at the definitions of theft and a firearms offence and answer the questions
below.
‘(1) A person is guilty of theft if he dishonestly appropriates property belonging to
another with the intention of permanently depriving the other of it; and “thief” and
“steal” shall be construed accordingly.’ (s.1, Theft Act 1968)

‘(1) Subject to any exemption under this Act, it is an offence for a person –

(a) to have in his possession, or to purchase or acquire, a firearm to which this section applies without holding a firearm
certificate in force at the time, or otherwise than as authorised by such a certificate.’ (s.1, Firearms Act 1968)
CRIMINAL LAW 3
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In each case state:

a. the prohibited conduct

b. the prohibited circumstances.

SAMPLE EXAMINATION QUESTION

One very good way of learning and understanding an area of law is to answer an
examination question. This will focus your reading, thus helping you to understand and
remember what you are reading. If you just read, this will not be so helpful.

Consider the arguments, both for and against, for expanding the range of duty
situations which ground liability for omissions. Should there be a general duty of
easy rescue?

ADVICE FOR ANSWERING THE QUESTION

First analyse what the question requires of you. This question involves two parts. The first
part asks you to consider changes to the present law involving the possible creation of new
duty situations. The second asks you to consider whether we should stop limiting liability
for omissions to a small range of duty situations and create a general duty to intervene
whenever we are in a position to prevent harm.

Using Wilson, Section 4.5.D ‘Omissions and crimes of commission’ write a one-page
skeleton answer to this question which highlights at least three reasons why criminal liability
for omitting to prevent harm is thought a bad idea (or why the current range of duty situations
are sufficient) and three responses to those objections. Also suggest at least three examples
of duty situations which should or could be added to the present list, together with arguments
against. Finally consider the arguments, for and against, for giving everybody a general
responsibility to help others in peril.

Am I ready to move on?

In Chapter 4 of this subject guide we shall look at the other ingredients of the actus reus,
namely consequences and causation. Are you ready to move on to the next chapter? You
are if – without referring to the subject guide or Wilson – you can answer the following
questions.

1. What is the ‘act requirement’?

2. What are the three exceptions to the act requirement?

3. What are the conditions of liability for a crime of commission in respect of an omission to act?

4. Under what circumstances will a duty to act arise?

5. What is the difference between an act and an omission? Why does it matter?

6. Why is criminal liability for omissions controversial?

You can test your knowledge of this chapter though the online multiple choice
questions available at www.mylawchamber.co.uk
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NOTES
4 Actus reus: consequences and their causes

Contents
Introduction 28

4.1 Result crimes 29

4.2 Accountability: basic guidelines 30

4.3 Principles governing causation 31

4.4 Breaking the chain of causation . . . . . . . . . . . . . . . . . . . . . .36

Am I ready to move on? 38

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Introduction
Most of the crimes we examine in Criminal law require proof that D caused a particular
harm, for example injury or death to the victim or damage to their property. So how do the
prosecution go about proving that D (or rather D’s act) was the cause? For example, if A
threatens B with death if he does not punch C, and B does punch C, is it A or B who causes
C’s injury? Or if A stabs V and V is killed in a car crash on the way to hospital is it A or the car
crash which causes V’s death? The principles governing causation are the subject of this
chapter.

ESSENTIAL READING
¢¢ Wilson, Chapter 5 ‘Causation’.
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4.1 Result crimes

The third element in actus reus concerns result crimes only. You will remember that some
crimes do not require proof of harm. These are known as conduct crimes. They require
proof only of some form of wrongful conduct. An example is dangerous driving; a person can
be convicted of dangerous driving if, for example, they drive too fast or aggressively, ignore
traffic lights or road signs, or overtake while driving round a blind corner. A conviction does
not require anybody to be hurt or for there to be an accident.

Result crimes, however, require both wrongful conduct and harm. So the crime of causing
death by dangerous driving requires both dangerous driving and a death. Crucially, however,
the prosecution must also prove causation. In other words, it must prove that the victim met
their death as a result of the defendant driving dangerously.

For all result crimes, therefore, the prosecution bears the burden of proving that the
defendant’s conduct caused the prohibited result. In murder or manslaughter this will be the
death; in criminal damage it will be the damage done to the property; in malicious wounding
it will be the wound, and so on. In this chapter we consider what the prosecution has to
show if it is to discharge its burden of proving causation.

In the vast majority of cases this will be straightforward. For example, if A shoots B with a gun
and B dies, it should not be too difficult for the prosecution to show that A’s act caused B’s
death. Similarly, if A sets light to B’s house or stabs B, it should not be too difficult for the
prosecution to show that A’s act caused the criminal damage or the wound, as the case may
be.

The prosecution’s task becomes harder, however, when more than one event or act
contributes to the result. In such circumstances questions as to whether D’s act or omission
was the cause of the harm demand the application of legal principles. So what are the
principles governing causation in the criminal law? Before we investigate further, consider the
following cases in which such principles will need to be deployed.

ACTIVITY 4.1
Review the following cases. When you have done so answer the questions at the
end.
a. D, as a joke, places a wet bar of soap on the floor of V’s bathroom, hoping that V will slip on the soap. V does slip
on the soap, hits her head on the floor and is knocked unconscious. Does D cause V’s injury?

b. As above except that V dies because her skull was unusually thin. Does D cause V’s death?

c. D rapes V. So distressed is V that she commits suicide. Does D cause V’s death?

d. D rapes V. When V’s father finds out he kills V due to the dishonour caused to the family by V’s loss of virginity.
Does D cause V’s death?

e. D stabs V. An ambulance is called to take V to hospital. On the journey to hospital the ambulance is involved in an
accident which kills the driver, X, and V. Does D cause V’s death?

f. D is the lifeguard on a beach. She sees V struggling in the water and dives in to save him. Unfortunately D is not a
good swimmer and is unable to rescue V in time. Does D cause V’s death?

g. D stabs V. An ambulance is called to take V to hospital. The ambulance crew are on their lunch break and refuse to
come until it has ended. By the time they arrive, V has died of blood loss. Does D cause V’s death?

h. D and V attend a party together. D gives V an ecstasy pill which V takes. Unknown to both D and V the pill has
unusual strength. V falls unconscious and dies almost immediately. Does D cause V’s death?
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In each of the above cases the defendant (D) may wish to claim that although they did
wrong they should not be held accountable for the harm that transpired because it is
too far removed from D’s initial act or omission. In which of the above cases do you
agree that D should not be held accountable and in which do you think D should? Is
there any pattern to your conclusions which could form the basis for general principles
of application?

4.2 Accountability: basic guidelines

A basic rule of thumb is that where a person‘s voluntary act initiates a causal sequence
which ends in harm, that person will normally be held accountable unless an act or event later
transpires which renders a finding of accountability inappropriate. If we examine case (a) in
Activity 4.1 above, this produces the following analysis.

uu D’s act is voluntary in the sense of being under the physical and mental control of D.

uu D’s act is the first link in a chain of events (chain of causation) which results in V’s injury.

uu D is therefore accountable for that injury unless a later act or event occurs which renders a
finding of accountability inappropriate.

The later act or event is V slipping over and banging her head. Does this act or event
render it inappropriate to hold D to account for V’s injury? This is the big question. We
need to have a basis for saying either that D should be held accountable or that D should
not. It is this basis which, in an ideal criminal justice system, will form the central principles
governing accountability or causation in the criminal law. What conclusion did you reach
and what was your reasoning?

Assuming you concluded that D did cause V’s injury, here are some possible basic
principles which you might have adopted to explain your conclusion.

uu D is accountable for all the consequences of their wrongful act.

uu D is accountable for all the foreseeable consequences of their wrongful act.

uu D is accountable for all the foreseen consequences of their wrongful act.

Now consider the Draft Criminal Code Bill 1989, clause 17 of which is intended to be a
restatement of the common law position. Clause 17 reads:

1. …a person causes a result which is an element of an offence when –

a. he does an act which makes a more than negligible contribution to its occurrence; or

b. he omits to do an act which might prevent its occurrence and which 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 –

a. which is the immediate and sufficient cause of the result;

b. which he did not foresee, and

c. which could not in the circumstances reasonably have been foreseen.

This is a clear and generally a pretty accurate restatement of the common law position. It
renders D accountable for V’s injury in case (a). D did an act (placed soap on the floor) which
made a more than merely negligible contribution to the result (V’s loss of consciousness) and
everything that happened after putting the soap on the floor (V slipping over and banging her
head) could ‘in the circumstances reasonably have been foreseen’. So D is accountable for
the result.

There are, however, certain aspects of causation doctrine which part company with this
restatement. For example, the courts will sometimes treat a later voluntary act of a third
party or the victim as breaking the chain of causation between act and result if it was
sufficient cause of the result, even if it was perfectly foreseeable or
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indeed foreseen. Case (h) in Activity 4.1 is an example. In law, D is not the cause of V’s
death because although D began the chain and V’s taking the pill was foreseen and
foreseeable, V’s voluntary taking of the pill breaks the chain of causation. It is now V’s act
rather than D’s which causes V’s death.

Now we shall look more closely at the case law and the principles of causation which derive
from it.

4.3 Principles governing causation

As Clause 17 of the Draft Criminal Code Bill 1989 indicates, causation involves a two-part
inquiry. The first part concerns how causal sequences begin, while the second part concerns
how, once begun, a causal sequence may come to an end. In short, to be held accountable
for a consequence involves being both the factual cause and also the legal cause of that
consequence.

4.3.1 Factual cause

Hart and Honoré describe a factual cause as:

an event or act which ‘makes the difference’ between something happening and
something not happening.

(Causation and the law. (1959))

The common way of representing this is:

uu an act is the factual cause if the consequence would not have happened but for that act

uu an omission is the factual cause if the consequence would not have happened but for the
defendant’s failure to act as they should have done.

Put another way, if the consequence would have happened just as it did irrespective of the
defendant’s act (White [1910] 2 KB 124) or omission (see Morby (1882), Chapter 3) it is not
caused by the defendant. So White was not accountable for the death of his mother, whose
drink he had poisoned, when she died of a heart attack before taking the poison. Nor would
White be accountable had his mother swallowed the poison but died of a heart attack before
the poison began to work. However, it would have been different if, in the latter case, the
heart attack was prompted by the initial effects of the poison. In this latter case the but for
principle operates because the heart attack is not independent of the initial act of the
defendant and so forms the final link in the causal chain.

To be the factual cause of a criminal harm, D does not have to start the process leading to
the consequence; it is enough that D accelerates it. So in Dyson [1908] 2 KB 454 a child was
admitted to hospital with injuries suffered after his father had beaten him severely. At the time
of his hospitalisation the child was suffering from meningitis. The child died of his injuries.
Medical evidence was adduced to show that he would have died of meningitis before long. D
was charged and convicted of manslaughter. He appealed on the ground that he was not a
but for (factual) cause of V’s death since the child would have soon died of meningitis
anyway. The court said that it was not necessary to show that D was the sole cause of death
so long as his action accelerated the time when death would otherwise occur.

ACTIVITY 4.2
This question of how much acceleration needs to be established is a particular
problem attached to cases of euthanasia. There have been a number of high-profile
cases in which doctors have been prosecuted for murder where they have ‘eased the
passing’ of a terminally ill patient. Examples are Adams [1957] Crim LR 365 and Moor.
For interesting commentaries see Arlidge, A. ‘The trial of Dr David Moor’ (2000) Crim
LR 31, Smith, J.C. ‘A comment on Moor’s Case’ (2000) Crim LR 41 and Goss, J. ‘A
postscript to the trial of Dr David Moor’ (2000) Crim LR 568.
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Now read Wilson, Section 5.5.B.1 ‘The general framework for imputing cause’ and
explain why Dr Adams was not thought to have caused the death of his patient and
what change in the facts of the case would have been necessary for the court to have
reached a contrary conclusion.
To be the factual cause of a criminal harm, the causal connection does not have to be
direct. In Mitchell [1983] 2 All ER 427 the accused punched a man who had accused him of
queue-jumping in a post office. The man fell on top of an 89-year-old woman, which initially
broke her leg and consequently caused her death from a pulmonary embolism. The
accused’s conviction for manslaughter was upheld on appeal. He was a but for cause. In
the words of the Draft Criminal Code, he did an act which made ‘a more than negligible
contribution’ to the consequence’s occurrence.

4.3.2 Legal cause

The factual cause of a consequence will also be the legal cause of that consequence, unless
the factual cause is too insubstantial or remote to render it inappropriate to attribute the
consequence to the act. In the words of the Draft Criminal Code a factual cause will be too
remote if, subsequent to it, another act or event occurs which also contributed to the result
which was not foreseen by the defendant, and could not in the circumstances reasonably
have been foreseen.

The most important thing to remember here is that the judgment made by the court is not a
scientific judgement, as it is with the factual cause. It is a moral judgement. The court is being
asked to consider whether it is appropriate to hold the defendant to account for what has
transpired. Sometimes a person can be the factual cause of a criminal harm and yet it does
not seem appropriate to hold them accountable. You may well have reached this conclusion
in relation to case (d) in Activity 4.1 above. If anybody is to be held accountable for V’s death
(as opposed to the rape) it is surely V’s father, not D.

In this section we will consider when a factual cause of a consequence is too

insignificant to be treated as the legal cause, and when it is too remote.

Principles of application
To be the legal cause of a criminal harm, the consequence must be the consequence not
merely of the defendant’s act but of their wrongful act. So if A is charged with causing B’s
death by dangerous driving and A does kill B by running him over in her car, while driving
dangerously, this does not necessarily mean that A is guilty of causing death by dangerous
driving. The crime is causing death by dangerous driving not causing death while driving
dangerously.

ACTIVITY 4.3
Read Wilson, Section 5.5.B ‘Legal cause’. Why was the defendant in Dalloway (1847)
not guilty of manslaughter, although he was driving his cart very dangerously when it
ran over the child?
A points a gun at B and threatens to kill B. C sees this. C, in trying to disarm A, causes
the gun to fire and injure V, a bystander. Is C the legal cause of V’s harm?
To be a legal cause, the defendant’s contribution to the result must be substantial, although it
need not be the sole cause. Even if a result would not have occurred but for D’s acts, it is
appropriate to ask to what extent D’s acts significantly contributed to the result. The criminal
law ignores trivial causes. For example, in Adams (1957) a doctor gave his terminally ill
patient a dose of painkillers so strong that it killed the patient. Devlin J ruled that if the dose
were given for pain relief in accordance with the doctor’s duty it would not be the doctor but
the disease which was the real cause of death. The doctor’s contribution could be ignored as
negligible.

Compare Benge (1865) 4 F & F 504 in which D, a foreman platelayer on a railway, failed to
check the train timetable to ensure the men working for him were safe on the line. A train
killed one of the workmen. D claimed that he was not the legal cause since the driver of the
train could have prevented the deaths if he had kept a proper
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lookout. It was held that D’s contribution was substantial enough to justify attributing
responsibility for the death to him; his contribution was too substantial to be ignored.

4.3.3 Problem cases

The court is most likely to be taxed in deciding whether D is the legal cause of a
consequence when something unusual happens following D’s unlawful act. In McKechnie
(1992) 94 Cr App R 51, for example, D beat up an elderly man, V, who suffered very serious
head injuries and remained unconscious for weeks. Doctors discovered that V had a
duodenal ulcer but decided that it would be too dangerous to operate because he was still
unconscious from his beating. V died as a result of the ulcer bursting. D was convicted and
appealed inter alia on the direction as to causation. The Court of Appeal, upholding his
conviction, ruled that D was still the cause of V’s death since the doctors’ decision not to
operate was due to the effects of the initial beating.

Two key points emerge from this case. The first, reflecting Benge, is that where more than
one cause operates, as it did here, the initial wrongful act of D is still the legal cause if it is
still a substantial and operative cause; in other words, if it is still strongly influential on the
outcome. The second is that a later causal contribution will not prevent the initial cause being
still operative unless it is independent of the initial act. Here the doctors’ decision was not
independent of the initial beating as it was influenced by that beating. If the doctors had
mistakenly given the victim poison which caused the ulcer to rupture this would have been
independent of the initial act, and so D would not have been the legal cause of V’s death.

Sections 4.3.6–4.3.8 below present some other problem cases where the courts have to
choose whether the legal cause of a criminal harm is D’s wrongful act or some other act or
event.

4.3.4 Death precipitated by the victim’s vulnerable physical or

mental condition
Occasionally the victim’s death is triggered by a combination of the defendant’s unlawful act
and their own physical or mental vulnerability. For example, in Hayward (1908) 21 Cox CC
692 D chased the victim, D’s wife, and threatened her with death. Unknown to him V had a
weak heart and died of a heart attack. D remained accountable for the death. This principle,
which is known as the ‘Eggshell Skull Rule’ is of general application. Simply put, D’s causal
responsibility for resultant harm is not deflected if V has a condition (such as a skull as
fragile as an eggshell), which renders them especially likely to suffer injury or die.

ACTIVITY 4.4
Read Wilson, Section 5.6.A ‘Subsisting conditions’ and answer the following
questions.
a. Why was Blaue the cause of V’s death when V could have easily prevented it by agreeing to a blood transfusion?

b. Eve asks Adam, her husband, to shoot her because she is terminally ill and wishes to die. Adam does so out of
compassion and respect for her wishes. However, his shot fails to kill her but causes massive internal bleeding. Adam then
realises that he does not want to be responsible for Eve’s death so he takes her to hospital. The hospital tells Eve that she
needs a blood transfusion and that she will die without it. Eve refuses, as she still wants to die – which she does. Is Adam the
legal cause of her death? Please note here that there is no right answer. Questions about whether the factual cause of a
criminal harm is also the cause recognised by the law is a matter of moral and common-sense judgement
– so exercise yours!

4.3.5 Supervening acts of third parties

Acts of third parties can, on occasions, break the chain of causation linking a but for
cause to a consequence. However, these occasions are rare, as we shall now see.
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Acts of third parties exacerbating the harm

If a third party contributes to the harmful result, this will not break the chain of causation if D’s
original act was still a substantial and operative cause of the harm. In Smith [1959] 2 QB 35
the victim died of a stab wound to the lung, but not before he had been dropped twice before
reaching medical attention and had received artificial respiration – which is not a good idea for
someone with a punctured lung! Smith was still the legal cause of V’s death. Although the
intervening acts contributed to the death, Smith’s acts were still a substantial cause of the
harm and were still operative at the time of death.

Hint: Consider what the autopsy report would have said to be the cause of death.

The following statement of principle given in Smith is a very useful summary of the
general legal position governing causation.

if at the time of death the original wound is still an operating cause and a substantial cause,
then the death [is] the result of the wound, albeit that some other cause is also operating. Only
if it can be said that the original wounding is merely the setting in which another cause
operates can it be said that the death does not result from the wound. Putting it in another way,
only if the second cause is so overwhelming as to make the original wound merely part of the
history can it be said that death does not flow from the wound.

ACTIVITY 4.5
Memorise the statement of principle in Smith – it will be time well spent.

ACTIVITY 4.6
Read Wilson, Section 5.6 ‘Particular examples of causal sequences giving rise to
causation problems’ and answer the following question.
If the doctors had given the victim in Smith a huge overdose of painkillers by mistake,
which would have killed any patient irrespective of their condition, would this prevent
the initial wound from being the ‘substantial and operative cause’ of V’s death?

Acts of third parties reacting to a danger caused by A’s act

It is natural that when a person acts in a dangerous fashion third parties may act
unpredictably by way of reaction. For this reason it will be rare that such a reaction will break
the chain of causation linking the defendant with the eventual consequence. For an extreme
example see Pagett (1983) 76 Cr App R 279, in which D used his pregnant girlfriend, V, as a
human shield to prevent police officers arresting him. D had a shotgun with him and shot
towards the police. They returned fire and V was killed. He appealed against conviction for
manslaughter on the ground that the police, and not he, had caused V’s death. The Court of
Appeal disagreed. In reaching its decision it said:

if a reasonable act of self-defence against the act of the accused causes the death of a third
party…[it does not] relieve the accused from criminal responsibility for the death of the third
party.

ACTIVITY 4.7
Consider the case of Pagett and answer the following questions. Remember, there are
no right answers to these questions. They are simply some of the considerations the
court will have in mind in deciding whether to attribute cause to the defendant when
their causal contribution is not obvious.
a. Do you think the police’s reaction was reasonable? Do you think the real issue should be whether the police
response was ‘foreseeable’?

b. If D had simply waved the gun in the air and the police had opened fire, with the same result, would D still be the
cause of V’s death?

c. What principle would you adopt to support your answer to Question (b) above?
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Hint: In each case, ask yourself whether D’s act was a substantial and operative
cause of death; whether the police response was reasonable; whether the police
response was foreseeable; whether the police response was made more likely by
D’s action? In principle, a ‘yes’ to any one of these questions might support D’s
conviction. Which question(s) do you think the court should ask?

Medical interventions
We have already seen an example of poor medical treatment contributing to a criminal harm
(Smith). In Cheshire [1991] 1 WLR 844 D shot V in the abdomen. V was taken to hospital
where he was operated on. Almost immediately he started suffering breathing difficulties and
so a tracheotomy was performed. Six weeks later, V’s wounds were nearly healed but his
breathing was getting progressively worse and he died. The doctors failed to recognise and
respond to the cause of V’s problems, which was that the tracheotomy had been negligently
performed. The trial judge told the jury that this bad medical treatment did not relieve D from
responsibility. On the basis of this direction the jury convicted. D appealed.

ACTIVITY 4.8
Read Wilson, Section 5.6.B.2 ‘Third party’s act contributing to the occurrence
or extent of injury’, Section (b) ‘Medical treatment’ and answer the following
questions.
a. What was the response of the Court of Appeal to the appeal in Cheshire? What principle did the Court lay down in
reaching its decision? This is another principle that is worth committing to memory.

b. Cheshire was quite an extreme case of bad medical treatment yet D remained liable. In what situations will bad
medical treatment rid D’s criminal act of ‘causal potency’?

c. Consider the court’s decision in Jordan. Is it consistent with Cheshire? If not, which do you prefer and why?

4.3.6 Supervening acts of the victim

Supervening acts of the victim exacerbating the harm

If, after they have been hurt by D, V does something which is unexpected and prejudicial to
their prospects of recovery, this will not break the chain of causation if D’s act is still a
substantial and operative cause. For example, in Holland (1841) 2 Mood & R 351, V, following
a serious assault with an iron bar, refused to submit to the amputation of a finger,
recommended to prevent tetanus. D was held to be causally responsible for V’s resultant
death from tetanus. In Blaue [1975] 1 WLR 1411, D stabbed V, causing serious blood loss.
Doctors treating V told her she needed a blood transfusion else she would die. V refused the
transfusion for religious reasons and died of blood loss. D argued that he was not the cause
of V’s death: the cause was V’s refusal. The Court of Appeal rejected this argument, stating
that the defendant must ‘take the victim as he finds him’. D’s act was still a substantial and
operative cause of death. Remember the autopsy report!

Escape attempts
If V is injured attempting to escape from D’s unlawful attack, D will be causally responsible so
long as the defensive action was attributable to that attack. In Roberts (1972) 56 Cr App R
95, V jumped out of a moving car in reaction to being sexually assaulted by D in the car. The
Court of Appeal ruled that D was the cause of V’s injuries as D’s act began the causal chain
and her reaction was reasonably foreseeable. The Court also stated that the chain of
causation would be broken only by the victim doing something ‘daft’. In Williams and Davis
[1992] 1 WLR 380, on similar facts except that the result was the death of the escaping
passenger, a slightly different test was used
– namely whether V’s response was within the range of responses which might be
expected from a victim ‘placed in the situation which he was’.
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ACTIVITY 4.9
There are three different tests of causation used in Roberts and Williams and Davis.
Two are used in one case!
uu One says that the chain of causation is not broken unless V does something which
was not reasonably foreseeable.
uu Another says the chain of causation is not broken unless V does something ‘daft’.
uu The final test says that the chain of causation is not broken unless V’s response was
‘not within the range of responses which might be expected from a victim placed in his
situation’.
Do all these tests mean the same thing or might the tests elicit different answers?
Think of some situations which might.

Suicide
If V commits suicide as a result of D having raped, maimed or physically abused them, is D
causally responsible for V’s death? The tests of causation in Activity 4.9 are not terribly
helpful here. Suicide is hardly a foreseeable response to a rape but if we ask the question ‘is
suicide “within the range of responses which might be expected from” a rape victim?’ we
would probably say yes. In Dhaliwal [2006] EWCA Crim 1139, a case involving suicide
following a long period of domestic abuse, the Court of Appeal acknowledged that suicide
could be triggered (and caused) by the most recent unlawful attack. Specifically:

where a decision to commit suicide has been triggered by a physical assault which represents
the culmination of a course of abusive conduct, it would be possible…to argue that that final
assault played a significant part in causing the victim’s death.

ACTIVITY 4.10
Is the principle enunciated in Dhaliwal the same as rendered Blaue liable for his
victim’s unforeseen decision to refuse a blood transfusion?

4.4 Breaking the chain of causation

So far you will be forgiven for thinking that nothing can prevent the attribution of legal cause
to a person whose culpable act began a chain of causation which ended with the victim’s
death or other harm. However, in certain circumstances, the chain of causation linking act
and result can be broken. It can be broken by an act or an event which, in the words of the
Draft Criminal Code, was neither foreseen nor foreseeable or, in certain circumstances, by
the voluntary actions of the victim or third party – whether foreseeable or not.

An act or event which breaks the chain of causation is known as a novus actus interveniens,
or a new act intervening. Now we will examine the special characteristics of a novus actus
interveniens, of which the case of Jordan (1956) is an example. In this case the court ruled,
rightly or wrongly, that the intervening causal contribution of
a third party was so powerful and independent of the initial wrongful act of the
defendant that that act was no longer fairly treated as the cause of death.

ACTIVITY 4.11
Read Wilson Section 5.6.B.2 ‘Third party’s act contributing to the occurrence of
injury’.
What were the special features in Jordan which prompted the court to hold that chain
of causation had been broken? What was the test used? If that same test had been
used in Cheshire would the outcome have been any different?
When will a subsequent act or event break the chain of causation? This depends upon
whether the intervening event is an act or a natural occurrence.
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4.4.1 New acts intervening

An intervening act of a third party will break the chain of causation if it is:

uu voluntary

uu independent of the initial act, and

uu sufficient in itself to cause the harm suffered by the victim.

For example, in the American case of People v Elder (1894), D struck V and V collapsed on
the ground. Then a bystander, B, who was not part of any plan to hurt V, stepped up and
kicked V, killing him. D was not guilty of homicide. Although D was a factual cause of the
death, the independent and voluntary act of B broke the chain of causation. A more modern
example is the English case of Rafferty [2007] EWCA Crim 1846, which you will find in
Wilson, Section 5.6.B.3 ‘Intervening cause supersedes defendant’s act’.

The requirement that the act of the third party be independent of D’s act is best illustrated by
the cases of Pagett and Cheshire. The acts of the police officers in Pagett, and the medics in
Cheshire, did not involve new acts intervening because they were by way of reaction to D’s
wrongful act. They were not independent of it.

ACTIVITY 4.12
Read Wilson Section 5.6.B.2 ‘Third party’s act contributing to the occurrence or
extent of injury’.
Under what circumstances might very bad medical treatment break the chain of
causation?
The chain of causation in cases of intervening voluntary and independent acts is broken
only if the intervening act was sufficient in itself to kill V. If V’s death occurred only because
V was already weakened by the initial attack the chain of causation will not be broken, as
D’s initial act will still be an operative and substantial cause.

As we have seen, unpredictable reactions of the victim to the defendant’s wrongdoing do not
generally break the chain of causation because they are not deemed to be independent of
the initial act which is still an operative cause: see Holland, Roberts and Blaue, for example.

The most important cases of intervening acts of the victim breaking the chain of causation
involve drug supply. In a number of cases in the past 20 years, the supplier of drugs to a
person who has died following self-injection has been charged with manslaughter. The main
question for the court is whether the unlawful act of supply causes the death. If we apply the
usual rule of foreseeability (see Roberts and the Draft Criminal Code) the supply is the legal
cause of death. However, supplying drugs to someone does not cause them to take the
drugs. It is their choice. In other words, the cause of death seems to be the voluntary act of
the victim in self-injecting rather than that of the supplier in supplying it to them.

For a number of years the courts could not decide which test to apply. In Finlay [2003] EWCA
Crim 3868 the Court of Appeal said that the supplier had caused the death because it was
foreseeable that the recipient would self-inject. The position now, following Kennedy (No 2)
[2007] UKHL 38, is that the test is not whether the victim’s act was foreseeable but whether it
was voluntary. A free and informed choice to self-inject the drug breaks the chain of
causation. It would not be free and informed if the victim lacked mental capacity or did not
know of the strength of the drug.

We need to make one qualification to this. If the supplier witnesses the victim losing
consciousness and fails to do anything to remedy the situation, a different causal inquiry
may result in the supplier’s conviction for manslaughter. In such a case, the supplier’s
omission in breach of duty (see Evans in Chapter 3 of this subject guide) will be the new
intervening cause of death.
PAGE 38 UNIVERSITY OF LONDON INTERNATIONAL
PROGRAMMES

4.4.2 Intervening events

An intervening event will break the chain of causation if it is:

uu abnormal

uu independent of D’s act (i.e. a complete coincidence), and

uu sufficient in itself to cause the death or other harm.

This would apply to case (e) in Activity 4.1 above, the ambulance case. It would also apply if
V died in hospital due to an earthquake or contracted a fatal illness independent of their
condition. For example, in Bush v Commonwealth (1880) V died of scarlet fever contracted in
hospital following D’s attack. D was held not to be the cause of death.

However, an intervening event will not break the chain of causation if the risk of it
happening was created by or increased by D’s act. For example, if D leaves V unconscious
by the side of the road and V later stumbles on to the road and into the path of a passing
car (Corbett [1996] Crim LR 594), if D leaves V on the beach and the tide comes in and
drowns V, or if D leaves V in a cemetery and a wild animal attacks V (The Harlot’s Case
(1560)), D will remain causally accountable for the resulting harm, death or serious injury,
as the case may be.

ACTIVITY 4.13
Read Wilson, Section 5.6.B ‘Intervening acts and events’ and answer the following
questions.
a. Is there one test of causation or are there a number of different tests depending upon the facts of the case?

b. Do you think Kennedy (No 2) is rightly decided?

c. Consider the Environment Agency v Empress Cars case (Wilson, p.116). Is it consistent with Kennedy? Do you
agree with the decision?

d. Compare Rafferty with Maybin. Which decision do you prefer, and why?

Am I ready to move on?

Are you ready to move on to the next chapter? You are if – without referring to the
subject guide or Wilson – you can answer the following questions.

1. State the general rule of thumb governing causation.

2. Give a verbatim account of the test for causation in either the Draft Criminal Code or Smith.

3. Explain how chains of causation come to an end.

4. Explain the ‘Eggshell Skull Rule’ and give one example.

5. Explain why in Pagett, although it was police rather than D who shot V dead, it was D who was the legal cause of her
death.

6. Give three examples of cases in which the court’s conclusion was that, although a later act or event had influence on the
result, the initial wrongdoer was still accountable.

7. Give three examples of cases in which the court’s conclusion was that, due to the intervention of a later act or event, the
initial wrongdoer was no longer accountable.

8. Explain the meaning of ‘operative’ in the phrase ‘substantial and operative’.

9. Explain the meaning of ‘substantial’ in the phrase ‘substantial and operative’.

You can test your knowledge of this chapter though the online multiple choice
questions available at www.mylawchamber.co.uk

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