Actus Reus: Criminal Law Guide PDF

1 Actus Reus 1.1 Introduction 2 1.2 The burden and standard of proof 2 1.3 General principles of actus reus...

1 Actus Reus 1.1 Introduction 2 1.2 The burden and standard of proof 2 1.3 General principles of actus reus 3 1.4 Types of crimes 3 1.5 Omissions 5 1.6 Causation 8 SQE1 syllabus By the end of this chapter you will be able to apply relevant core legal principles and rules appropriately and effectively, at the level of a competent newly qualified solicitor in practice, to realistic client-​based and ethical problems and situations in the area of actus reus. Note that, as students are not usually required to recall specific case names, or cite statutory or regulatory authorities, these are provided for illustrative purposes only. Learning outcomes The learning outcomes for this chapter are: to explain and apply the concept of actus reus, including the rules of legal and factual causation; and to explain the extent to which an omission rather than an action may constitute the actus reus of an offence. 1 Criminal Law 1.1 Introduction A fair and robust criminal justice system is a cornerstone of all developed countries and lawyers are an essential aspect of this. To be effective, a criminal lawyer must have a detailed understanding of the substantive law including the definitions of the various offences their clients may face. When considering a criminal offence, there are usually three components required to establish criminal liability: (a) guilty conduct by the defendant (actus reus); (b) guilty state of mind of the defendant (mens rea); and (c) absence of any valid defence. Thus, for the crime of murder, the defendant must kill the victim (the actus reus) and do so with an intention to kill or cause grievous bodily harm (the mens rea). However, the accused will not be liable for murder if they have a valid defence, such as self-​defence. The concept of actus reus, or guilty act, is the starting point for considering all crimes; and the ability to analyse the evidence and conclude whether or not the suspect has completed the actus reus of a particular offence is essential. This chapter will consider the following: the components that make up the actus reus; when an accused may be criminally liable for their omission; and the concept of causation. 1.2 The burden and standard of proof The defendant’s guilt is determined in a court of law by the magistrates or a jury who assess the evidence put before them. Before convicting the accused of an offence, there must be proof that the accused commited the criminal behaviour with the required guilty state of mind; but who needs to prove what? The legal burden of proof is on the prosecution to prove all the elements of the offence, including (in most cases) disproving the defence. The evidential burden is also on the prosecution to provide sufficient evidence for each element of the offence. This may take the form of police interviews, witness or expert evidence and forensic evidence such as fingerprints or DNA. The standard of proof, where the prosecution has the burden, is beyond reasonable doubt. This is a very high standard, so that the jury or magistrates should convict only if they are sure of the defendant’s guilt. However, whilst the burden of proving the offence is always on the prosecution, there are some (rare) instances where the defendant has the legal burden of proving their defence. One such example is the partial defence to murder of diminished responsibility which is covered in Chapter 4. When such a burden does fall on the defendant, the standard of proof is lower than for the prosecution, being only on the balance of probabilities; in other words, it is more likely than not that the defence exists. There are also occasions when the evidential burden falls on the defence. In such cases the defendant must show sufficient evidence to enable them to rely on a defence, which the prosecution must then disprove. This simply means that the defence must raise some evidence 2  Actus Reus to make the issue ‘live’ and this will usually be done by the defendant and/​or someone else giving evidence in court or by cross-​examining a prosecution witness. Defences to which this applies are the partial defence to murder of loss of control and also the full defence of self-​ defence –​both of which are considered later in the manual. Example Malcolm is charged with an assault occasioning actual bodily harm after he punches Neville in the face, causing him to suffer a black eye. The prosecution must prove the following elements beyond reasonable doubt: (a) That Malcolm hit Neville. (b) That Neville suffered an injury. (c) That Malcolm had the necessary state of mind to be guilty of the offence, namely that he intended to hit Neville or was reckless as to doing so. In the witness box, Malcolm claims that he only punched Neville because Neville threatened him with a knife. Malcolm is raising the issue of self-​defence. By stating this in his evidence, Malcolm has satisfied the evidential burden placed upon him so that it is now up to the prosecution to demonstrate, beyond reasonable doubt, that the self-​defence argument is not valid. 1.3 General principles of actus reus The actus reus of every offence is different and may be found either: in statute, for example criminal damage and theft; or in the common law, with murder being the most serious example. The actus reus elements of an offence are all those that do not relate to the state of mind of the defendant. Thus, the simplest way to identify the actus reus of a criminal offence is to subtract the mens rea elements from the definition of the offence. Those that remain constitute the actus reus. Example The definition of theft is the dishonest appropriation of property belonging to another with an intention to permanently deprive. Removing the mens rea elements of dishonesty and intention to permanently deprive leaves the actus reus elements of appropriation of property belonging to another. Although this is a straightforward example, others are less obvious. The concept of actus reus is commonly referred to as the ‘guilty act’ but this is misleading as it may be satisfied in a number of ways. 1.4 Types of crimes In most instances, the defendant must do something before they can be said to have committed a criminal offence. However, although this is usually the case, it is not always so. The actus reus may be established by proving that the defendant failed to take action, or even just by proving that a situation exists. The actus reus may consist of the following components: 3 Criminal Law an act (or sometimes a failure to act) by the defendant (‘conduct’ crimes); certain consequences flowing from the defendant’s conduct (‘result’ crimes); and/​or the existence of certain circumstances at the time of the defendant’s conduct (‘circumstances /​state of affairs’ crimes). Although crimes may be labelled in this way, some may contain just one of these elements whilst others may contain two or even all three. Theft is an example as, although it is a conduct crime requiring the appropriation or taking of property, the offence is only committed if the circumstance exists that the property belongs to another at the relevant time. Table 1.1 Types of crimes Type of crime Definition Example Conduct Usually involves an act but may Perjury include an omission to act. ‘Doing’ offences (usually). Result A result must have been caused by Murder the conduct of the defendant. Criminal damage Proof of causation is required. Circumstances The existence of a set of Being in charge of a motor vehicle circumstances or a ‘state of affairs’. while unfit due to drink or drugs. 1.4.1 Conduct crimes For most offences, the actus reus is defined so that it requires conduct on the part of the accused. The definition of the offence requires the defendant to behave in a certain way. An example of such an offence would be perjury –​wilfully making a statement under oath that the accused knows to be untrue. Perjury may be regarded as a ‘pure’ conduct crime because it is the defendant’s conduct rather than the result itself that is criminalised, so it would make no difference whether the false evidence had any impact on the trial or not. Although crimes may be labelled specifically, this is not always helpful as there is often an overlap. For example, an assault occasioning actual bodily harm requires conduct (such as a punch) but also a ‘result’, namely some harm to the victim. The conduct must be voluntary if it is to be criminal and in most cases it will be. To be guilty of what is commonly known as an assault, the defendant must apply unlawful force to the victim. Slapping, punching, stabbing and kicking are all examples of voluntary conduct –​the defendant decided to act in this way. However, there are some (rare) occasions when the accused acts in an involuntary way. If a motorist is attacked by a swarm of bees while driving and crashes their car as a result, a charge of, say, careless driving would fail as their actions could not be said to be voluntary. 1.4.2 Result crimes When an offence is described as a result crime, it is not enough that the defendant acts in a particular way; certain consequences must follow from their actions if the actus reus is to be satisfied. Murder is such an example with the ‘result’ being the death of a human being. 4  Actus Reus Another is criminal damage because property must be destroyed or damaged if the accused is to be convicted. 1.4.3 State of affairs crimes Some offences do not require any conduct at all. They are defined so that the actus reus is simply the existence of a state of affairs, or a particular set of circumstances. The defendant may be liable even though they had no control over the situation. Example Darryl is at the pub celebrating a friend’s birthday, but he drinks only orange juice as he is driving. However, unknown to him, one of his friends spikes his juice with vodka as a joke. At the end of the evening, Darryl gets into his car, which is parked on the road outside, but is so affected by the alcohol that he cannot even get the key into the ignition. He is approached by a police officer, breathalysed and found to be above the legal limit for driving. Even though Darryl has not actually done anything other than sit in his car, he is guilty of an offence under s 4(2) of the Road Traffic Act (RTA) 1988, which makes it a crime to be in charge of a motor vehicle on a road or other public place while unfit to drive through drink or drugs. This is because the actus reus is complete as soon as Darryl gets into the car, as s 4(2) is a state of affairs offence. The justification for such offences is public policy; it is regarded as more important to prevent drunken or drugged motorists from driving than being concerned with unfairness in individual circumstances. 1.5 Omissions In most cases, a defendant will have taken positive steps in relation to a particular crime so will actually have done something. Thus, in a murder case, the accused will have, for instance, shot, stabbed or beaten the victim to death. However, although most offences are defined so that the actus reus is an action, there are others where the defendant may be convicted simply by doing nothing. In other words, it is possible to be criminally liable for a failure or omission to act. Even murder, that most serious of offences, can be committed in this way. The reason the defendant is guilty is because they have produced a particular result, in this case the death of a human being. Example Abira, a doctor, refuses to give an antidote to a patient who has been poisoned and who then dies. Abira is liable for her failure to act. 1.5.1 General rule The general rule is that there is no criminal liability for omissions. Thus, a stranger is under no obligation to save a child who is drowning in a puddle. Example Beatrice is walking along a pavement one cold, snowy morning when she sees a man, Caleb, slip on some ice and fall into the road, knocking himself unconscious. Beatrice is late for work and decides to do nothing despite realising the danger Caleb is in from any passing traffic. Caleb is hit by a car and dies from his injuries. Although Beatrice is under a moral duty to help Caleb, she is under no duty under the criminal law to do so. 5 Criminal Law However, there are exceptions to this general rule. 1.5.2 Statutory offences There are a number of statutory offences where the actus reus is specifically defined as an omission, such as the offence of failing to provide a police officer with a specimen of breath when asked to do so or failing to stop after a road traffic collision. There are other statutes that impose a duty on the defendant; for example parents are under a duty to care for their children under the Children Act 1989. Failing to act when required to do so under a statutory provision will usually lead to prosecution for the omission itself. 1.5.3 Common law offences Under the common law, the general rule is that a defendant will only be criminally liable for an omission if the law recognises that they were under a duty to act and they failed to do so. Hence, the starting point is to establish whether the defendant was under a positive duty to act and, over time, the law has recognised a number of situations where such a duty arises. 1.5.3.1 Duty arising out of contract If a person is subject to a contract that specifies certain obligations to act, a failure to comply with these can lead to criminal liability. The duty to act will be owed not just to other parties to the contract but also to anyone whose life is endangered by the failure to act. This has long been established in case law. In the case of R v Pittwood (1902) 19 TLR 37, a railway worker who was employed to guard the gate at a level crossing went off for his lunch without putting the gate back down. A train later collided with a horse and cart, killing the driver. Pittwood was contractually obliged to act to protect members of the public and was therefore liable under the criminal law for his failure to act. He was convicted of manslaughter –​of causing the death that followed from his omission. In modern society, those employed as carers or healthcare professionals would be contractually bound to act and could be liable for a homicide offence if they fail to take steps to prevent those in their care from suffering harm. Example Sandra is a care worker who is employed by Great Care Ltd. She is responsible for visiting a number of elderly patients during the day. However, Sandra is rather lazy and often misses out those who are suffering from dementia as she knows they will not be able to inform on her. Muriel is 86 years of age and is scheduled to receive two visits a day to ensure that she eats and drinks properly. Sandra fails to attend many of these appointments and as a consequence, Muriel dies of dehydration. As Sandra is under a contractual duty to care for Muriel, she is liable under the criminal law for her omission. Other examples of people who are under a similar duty are: doctors and nurses (to care for their patients); members of the emergency services (to take all reasonable steps to safeguard the public); lifeguards (to act to ensure the safety of people using the swimming pool). 6  Actus Reus 1.5.3.2 Special relationship Where there is a special relationship between the defendant and the victim, either by reason of family ties or because the defendant has assumed a duty towards the victim, the defendant may incur criminal liability for their omission. In R v Gibbins and Proctor (1918) 13 Cr App R 134, the defendants were charged with, and convicted of, murdering a seven-​year-​old girl who died of starvation. The father, as a parent, was under a duty to care for his daughter but failed to do so by not feeding her. His partner was also convicted on the basis of her special relationship with the child. The court held that she had assumed a duty towards the child by living with the father and accepting housekeeping money from him. Although it is unsurprising that the existence of a close relationship may give rise to a duty to act between parents and children, or between spouses, this principle extends further than might, perhaps, be expected. One such example are those situations where a person voluntarily undertakes to care for another who cannot care for themselves. This could be due to a number of reasons –​infancy, mental illness or general ill-​health. In R v Stone and Dobinson QB 354, the two defendants took in Stone’s sister to live with them. She suffered from anorexia and her physical condition deteriorated so that she became bed-​ridden. The two defendants had physical and mental difficulties of their own and did little to help the sister, who eventually died of blood poisoning caused by infected bed sores. The defendants were convicted of manslaughter. By taking the sister in and making occasional but ineffectual attempts to help her, for example by leaving her food, the court held they were under a duty to act. Their failure to do so meant that, as far as the criminal law is concerned, they caused the victim’s death. It is apparent from this case and others that the role of caring for others should not be undertaken lightly because, if done badly enough, criminal liability may result if death or injury occurs. However, an individual is not required to do a great deal to comply with their duty and thus absolve themselves of such responsibility. All that Stone and Dobinson needed to do in the situation in which they found themselves was to summon help, such as an ambulance or social services. 1.5.3.3 Creation of a dangerous situation A more recent development is the duty that arises if a person creates a dangerous situation. If the defendant does something that endangers the victim and they are aware of it, they are under a duty to take reasonable steps to prevent the harm from occurring. Example Gethan parks his car on a hill but forgets to put on the handbrake. As he walks away, he realises his omission but, as he is in a hurry, he does not return to the car. He walks past two young boys playing outside their house a little further down the hill. A few minutes later, the car rolls down the slope and hits one of the children, killing them. In this situation, because Gethan has created a dangerous situation by failing to apply the handbrake, the law imposes a duty on him to take steps to remove the danger. However Gethan is only required to return to the vehicle and pull the handbrake on; it is his failure to do this that leads to criminal liability. 7 Criminal Law In R v Miller 1 All ER 978, the defendant was a squatter in a house. He went to sleep smoking a cigarette and woke up to find his bed mattress smouldering. However, rather than do anything to stop the smouldering, he simply moved to the room next door and went to sleep there! Unsurprisingly, the house caught fire. The defendant argued that he was not guilty of causing criminal damage because he had not actually done anything. Despite this, Miller was found guilty –​not because he caused the fire but because he failed to take any steps to put the fire out when he realised what had happened. The duty is to take reasonable steps to avert the danger and this will depend upon the circumstances. Table 1.2 contains a summary of whether actions that Miller could have taken or did take would be sufficient to comply with his duty in a situation such as this. Table 1.2 Actions to comply with duty to take reasonable steps to prevent harm Yes No Maybe Telephoning Leaving the scene without Tackling the blaze; this would depend upon (for the fire service. taking any action. example): Going for a sleep in the size of the fire; and another room.  the availability of fire-​fighting equipment such as a fire extinguisher. Thus it is clear that criminal liability is imposed only on those who create the danger and, having become aware of it, fail to take reasonable measures to counteract it. 1.5.4 Summary of omissions The general rule is that there is no liability for omissions. There are exceptions to this rule where the defendant is under a positive duty to act, namely, where there is: ∘ a statutory duty to act; ∘ a contractual duty to act; ∘ a special relationship between the victim and the defendant; ∘ a duty based on a voluntary assumption of care; and ∘ a duty that arises because the defendant, having created and become aware of a dangerous situation, fails to take reasonable steps to avert it. 1.6 Causation This section concerns the second type of crime, described earlier as result crimes. For these offences, as part of establishing the actus reus, the prosecution must also demonstrate that the accused’s act or omission actually caused the prohibited consequence. This is known as proving causation. 8  Actus Reus Examples (a) Daria stabbed Vera (conduct) leading to Vera’s death (result). (b) Deshi failed to seek medical help for his daughter (omission) so that the child died (result). In both these examples, the act or the omission led directly to the victim’s death so that, in legal terms, the defendants caused the deaths. It is important to emphasise that causation is an element of the actus reus and should be dealt with as such, rather than as a separate entity or as part of the mens rea. There are two types of causation –​factual and legal causation. Both must be present in order for causation to be established as part of the actus reus. In this chapter, the issue of causation is discussed in the context of homicide but note that it may arise in any result crime. The general rule is that a defendant is criminally liable only if they can be shown to have caused, both in fact and law, harm to the victim. 1.6.1 Factual causation Factual causation is the principle that the defendant cannot be considered to be the cause of an event if the event would have occurred in precisely the same way without the defendant’s act or omission. This test is applied by asking the question: but for the defendant’s conduct, would the consequence have occurred? If the result would have occurred irrespective (regardless) of the defendant’s conduct, then factual causation is not established. In R v White 2 KB 124, the defendant poisoned his mother’s drink intending to kill her. However, before the poison could take effect, his mother suffered a fatal heart attack. Medical evidence confirmed that her death occurred from heart failure unconnected to the poisoned drink. Because the mother would have died even if her son had not put poison in her drink, the defendant (literally) got away with murder –​although he was at least found guilty of an attempt. So the question for the jury is: Would the result have occurred but for (in the absence of) the defendant’s actions? If the answer is yes –​then the defendant is not liable. Clearly, everyone must die at some point; however, for causation to be established, the defendant’s act or omission must accelerate the death. In most instances, this will be clear. Example Johdi shoots Usain at point blank range and kills him. But for Johdi’s actions, Usain would not have died as and when he did; thus, factual causation is established. However, whilst this test provides some assistance in deciding whether the defendant is guilty, it is of limited value. If all the prosecution have to demonstrate is factual causation, because the test is so wide, it could catch people who in reality have only a very tenuous connection with the victim’s fate. Example Ahmed invites Bal out on a date. Unfortunately, Bal is knifed by a stranger in a random attack while on her way to meet him at the local park and subsequently dies. Applying the but for test, Ahmed’s action has caused Bal’s death as, but for the invitation, she would not have been in the park. 9 Criminal Law Clearly in these circumstances, it would be entirely unjust to hold Ahmed responsible for what is in reality a very unfortunate coincidence –​Bal walking through the park just as an attacker was looking for a victim. For this reason, in addition to demonstrating factual causation, it is also necessary to demonstrate legal causation. What this means is that, in the eyes of the law, the defendant’s action caused the consequence and therefore it is appropriate to punish them. Set out below is a summary of the test for factual causation. Figure 1.1 Factual causation FACTUAL CAUSATION But for D’s conduct would the result have occurred? Yes No D has not factually D has factually caused the caused the result – result and is criminally no criminal liability liable if legal causation can also be established 1.6.2 Legal causation In addition to being the factual cause of the death, the prosecution must also establish that the accused was the legal cause of it. This can be summarised as follows: the defendant’s conduct must be a substantial and operating cause of the consequence. Legal causation will only be considered if the prosecution can prove that the defendant was the factual cause of the result, as demonstrated in Figure 1.2. 10  Actus Reus Figure 1.2 Legal causation CAUSATION But for D’s conduct, would the result have occurred? No Yes Causation in fact established Causation in fact not established – no actus reus Was D’s conduct an operating and substantial cause of the result? Did it contribute significantly? Yes No Legal causation established unless Causation in law not there is an intervening event which established – no breaks the chain of causation actus reus Over time, the principle of legal causation has been developed by the judges in a somewhat piecemeal manner. Hence there are a number of cases that illustrate how legal causation operates in practice, including the effect of events that happen after the defendant’s involvement but which have an impact on the final outcome. As such, legal causation is a combination of different rules, not all of which will be relevant to every situation. 1.6.2.1 The consequence must be attributable to a culpable act or omission The rationale behind this legal principle is that, to attract consequences under the criminal law, someone must be blameworthy in some way. This means that legal causation will only be established if the result was due to the defendant’s action. In the case of R v Dalloway (1847) 2 Cox CC 273, the defendant was negligently driving a horse and cart without holding the reins when a child ran in front of the cart and was killed. The jury was directed to convict for manslaughter only if they were satisfied that holding the reins would have saved the child. The jury acquitted, presumably being of the view that even though there was a culpable act, it did not cause the child’s death which could not have been avoided. 1.6.2.2 The culpable act must be a more than minimal cause of the consequence The prosecution must prove that the accused’s contribution to the death of the victim is more than trivial or minimal. For example, a person visiting a dying relative and hastening their death by chatting to them, so exhausting them, would not have caused the death in law. In the case of R v Pagett (1983) 76 Cr App R 279, the defendant held his girlfriend hostage and then used her as a human shield when the police fired back at him. He was found guilty of manslaughter on the basis that his action ‘contributed significantly’ to her death. 11 Criminal Law 1.6.2.3 The culpable act need not be the sole cause There may be multiple causes of the particular result and it does not matter that the defendant’s act was just one of these. This is a principle that has long been established in case law. In R v Benge (1865) 4 F & F 504, the defendant was a foreman of a track-​laying crew and, as a result of misreading the train timetable, the track was up at a time when a train was due. The resulting accident caused death. Although the signalman and train driver were also at fault, the defendant could not rely on this to avoid liability. Example Eddie and Hugh attack and kill Maurice, by stabbing him with knives. (a) The medical evidence establishes that both inflicted fatal wounds. In this instance, legal causation is clear and both defendants are guilty of murder. (b) The medical evidence indicates that no single stab wound caused Maurice’s death. However, it is established that both Eddie and Hugh caused him serious injury and it was the combination of their actions that killed Maurice. Here, the two defendants have contributed significantly to the outcome and it does not matter that their individual act was not the sole or even the main cause of the defendant’s death. The effect of this rule is that, just because there are multiple causes of a particular result, liability is not precluded; more than one person may be liable for homicide or other result crimes. 1.6.2.4 The accused must take their victim as they find them On occasion, the victim will have an unusual physical or mental condition or belief that contributes to their death. The judges have adopted a robust approach to these cases. In R v Blaue 1 WLR 1411, the defendant stabbed a woman who refused a blood transfusion because of her religious beliefs as a Jehovah’s Witness. She died of her injuries although the medical evidence suggested that such treatment would have saved her life. Lawton LJ stated: ‘those who use violence on other people must take their victims as they find them. This … means the whole man, not just the physical man.’ The fact that a victim refuses to take it upon themselves to stop the end result of death is irrelevant –​the question for the jury is what caused the victim’s death and, in this instance, it was the stab wound. This principle is sometimes referred to as the ‘eggshell skull rule’ on the basis that if the accused taps the victim on the head with a ruler using force that would normally just lightly bruise, but in this case breaks the victim’s skull because it is particularly soft, the defendant should not escape the consequences of their act. Examples (a) Debbie slaps Eden around the face. In most people this would cause only a red mark but Eden has a brain tumour and the slap causes a haemorrhage that kills her. (b) Frank shouts abuse at Geoff, an elderly man who has pushed in front of him in the queue at the cash point machine. Geoff is very frightened by the shouting and suffers a heart attack that kills him. As a consequence of the thin skull rule, Debbie and Frank would both be liable for their victims’ deaths. They must take their victims as they find them and this would include their underlying health conditions (Eden) and particular frailty (Geoff). 12  Actus Reus 1.6.2.5 The chain of causation must not be broken Defendants have sometimes tried to argue that the link between their act and the result (usually death) has been broken by an intervening act or event. This may be referred to by its Latin name of novus actus interveniens, which translates to ‘a new and intervening act’. The effect of an intervening act that breaks the chain of causation is that the defendant will not be the cause of the result and will be absolved of liability for it. 1.6.3 Intervening acts or events There are three possible ways in which the so-​called chain of causation may be broken: where the victim acts in a particular way; where an act by some other person intervenes between the defendant’s conduct and the result; or where some event occurs between the defendant’s conduct and the end result. Each of these will be considered in turn. 1.6.3.1 Victim’s acts The general rule is that if the victim does something after the initial act or omission of the accused but before the consequence occurs, and that intervention is ‘free, deliberate and informed’ (voluntary), then legal causation will not be established. However, although this principle remains valid, it will rarely apply in practice. For example, if a victim decided not to seek medical help and died of their injuries, the defendant would almost certainly remain liable as their conduct contributed significantly to the victim’s demise. Alternatively, the court may find that the victim suffered from a mental condition which influenced their decision, in which case the ‘thin skull’ rule would apply. There are two important potential exceptions to the general rule, these being where the victim tries to escape and where they commit suicide. ‘Escape’ cases When considering the impact of the victim’s escape, the court will consider how foreseeable the victim’s response was. In R v Roberts (1971) 56 Cr App R 95, the victim jumped out of a moving car as a result of the defendant’s unwanted sexual advances. The defendant was held liable for an assault occasioning actual bodily harm despite the injuries having been caused in part by the victim’s own conduct. This is an example of what are referred to as ‘fright and flight’ cases. The chain of causation is not broken here because the victim’s act is not free, deliberate and informed; effectively, they have been forced into the situation. However, a defendant will not always be liable for the consequences of a victim’s escape. In the case of Roberts, Stephenson LJ stated that if the victim’s act was ‘so daft as to make it [the victim’s] own voluntary act’ then the chain of causation would be broken. Example Junaid has accepted a lift home from Yonis whom he met at a pub. On the way, Yonis threatens Junaid that if he does not pay £10 towards the petrol, he will slap him. In response, Junaid opens the car door while they are travelling at 50 miles per hour along a busy road and jumps out. Junaid is hit by a vehicle that is following Yonis’ car and dies of head injuries which he sustained during the escape. This response would not be regarded as reasonably foreseeable in the circumstances. 13 Criminal Law In summary, when determining the issue of causation, the court will take into account: whether the escape is within the range of reasonable responses to be expected of a victim in that situation; whether the victim’s response is proportionate to the threat; or whether it is so ‘daft’ as to be a voluntary act; and the fact that the victim is acting in ‘the agony of the moment’ without time for thought or deliberation. Suicide In some cases, the impact of the victim’s suicide may be covered by the principle that the defendant must take their victim as they find them, as discussed earlier in the chapter. However, this issue was revisited in a recent case. In R v Wallace EWCA 690, the defendant threw sulphuric acid upon her partner, Mark van Dongen, while he was asleep. His injuries were horrific including full thickness burns to 25% of his body, amputation of his lower leg and paralysis. After developing further complications, the victim applied for euthanasia, which is legal in Belgium, and his wish was granted. The Court of Appeal held that voluntary euthanasia does not necessarily break the chain of causation and the question was whether it was reasonably foreseeable that the victim would commit suicide as a result of their injuries. All the circumstances should be taken into account to determine whether voluntary euthanasia fell within the range of reasonable responses that might have been expected from a victim in their situation. 1.6.3.2 Third party intervention Another way in which the chain of causation may be broken is by a third party. This may cover a variety of situations where someone other than the accused or the victim acts. An example would be an ambulance driver who crashes their vehicle while driving the victim of a stabbing to hospital, resulting in the victim’s death. This is an area where the law has developed over time but the general principle can be summarised thus: A defendant will not be liable if a third party’s intervening act is either free, deliberate and informed, or is not reasonably foreseeable. In the case of Pagett (see 1.6.2.2), the victim’s death was caused by the action of the police officer in firing at the defendant. Here, the officer’s response: was not free, deliberate and informed –​as he was acting instinctively in self-​defence; and was reasonably foreseeable in the circumstances –​the defendant was shooting at the officer at the time. As a consequence, the police officer who shot the victim was absolved of all criminal liability. Furthermore, his action did not break the chain of causation and the defendant, who used his girlfriend as a human shield, was found guilty of her death. 1.6.3.3 Medical negligence In homicide cases the victim will often receive medical treatment and, if that treatment is negligent, may die as a result. In a number of cases, the defendant has argued that the poor medical treatment was the real cause of the death and, thus, broke the chain of causation. 14  Actus Reus Example Shania attacks Kirit who suffers an injury to his leg as a result of the assault. He is taken to hospital where a junior doctor fails to read Kirit’s medical notes. As a consequence, he wrongly gives Kirit a dose of antibiotics to which he is allergic and Kirit dies as a result of a reaction to the medication. Clearly, Shania satisfies the test for factual causation. But for her actions in attacking Kirit, he would not have been a patient at the hospital and would not have suffered the negligent medical treatment. With regard to legal causation, Shania disputes that the injury she caused to Kirit is the cause of his death, arguing that the medical negligence is not reasonably foreseeable –​it is an intervening event that breaks the chain of causation. If successful, the effect would be to transfer criminal liability from the original defendant to the medical professional. For reasons of public policy, this would not generally be regarded as acceptable and, as a consequence, cases in which the judges have ruled in favour of the accused are rare. One such example is that of R v Jordan (1956) 40 Cr App R 152. The victim’s injuries had mainly healed when he died as a result of medical treatment that was so grossly negligent it was described as ‘palpably wrong’. In this case, the cause of death was pneumonia due to the excessive amounts of liquid that were administered to the victim intravenously. Although the chain of causation was broken, Jordan is regarded as an exceptional case based on particular facts. Subsequent cases have developed tests that are more likely to secure the conviction of the defendant who caused the initial injuries. In R v Smith 2 QB 35, the victim died at an army medical centre after a fight with another soldier at their barracks. There was evidence that the treatment the victim received was ‘thoroughly bad’, including him being dropped twice on the way to seek help, inadequately diagnosed and given inappropriate medical treatment. Despite this, the chain of causation was not broken as the original injury was still an ‘operating and substantial’ cause of death. Lord Parker CJ stated that: only if the second cause is so overwhelming as to make the original wound merely part of the history can it be said that the death does not flow from the wound. The effect of this ruling is that, provided the original injury is still operating at the time, the defendant will find it difficult to escape liability for the death. As the injury need not be the sole or indeed the main cause of death, even quite serious medical negligence may not be enough to absolve the defendant. This point was demonstrated in the next case. In R v Cheshire 1 WLR 844, the victim was given a tracheotomy as a result of gunshot wounds received. Two months later, he died due to scar tissue at the tracheotomy site that obstructed his breathing. The victim’s wounds were no longer life-​threatening at this time, yet the original attacker was convicted of murder. The court held that even if negligent medical treatment is the immediate cause of the victim’s death, it should not break the chain of causation unless it is so independent of the defendant’s actions and so potent in causing death that it makes the contribution made by the accused’s acts insignificant. As a consequence, the general principle is that only in the most extraordinary and unusual case would medical treatment break the chain of causation. However, although causation issues can be tricky, in reality, such disputes will rarely arise. 15 Criminal Law 1.6.3.4 Intervening events A natural event (an ‘Act of God’) may break the chain of causation with the foreseeability of the subsequent event being the determining factor for liability. Examples (a) Charis argues with Bonnie and strikes her, leaving her unconscious by the side of a stream. The injury was not sufficiently serious to cause death. Although it is a sunny afternoon, there is a sudden thunderstorm and the stream becomes swollen with flood water. Bonnie drowns. Charis is not liable for Bonnie’s death because the flooding is (objectively) not foreseeable. Consequently, it will break the chain of causation. (b) Charis argues with Bonnie and strikes her, leaving her unconscious on the beach. The tide comes in and Bonnie drowns. Charis would be liable for Bonnie’s death by drowning as the tide coming in is a natural event that is reasonably foreseeable. The chain of causation may also be broken by events other than natural ones, for example, where the victim is left in a house that is subsequently blown up in a gas explosion. 1.6.4 Summary of legal causation Figure 1.3 contains a summary of the principles that apply to legal causation and the acts and events that may break the chain of causation so the defendant is no longer criminally liable for the result. Figure 1.3 Legal causation and intervening acts LEGAL CAUSATION The consequence The culpable act must be The culpable act D must take their must be attributable a MORE THAN MINIMAL need NOT be the victim as they find them: to a CULPABLE ACT cause of the consequence SOLE cause EGG SHELL SKULL rule The CHAIN OF CAUSATION must not be broken Yes INTERVENING EVENT? No Maybe Third party intervention if free, Medical Reasonably Unforeseeable ‘Daft’ Victim’s negligence deliberate and informed OR foreseeable events escapes suicide (usually) not reasonably foreseeable escapes 16  Actus Reus Summary To be criminally liable, the defendant must satisfy all the elements of the actus reus for the particular crime. The actus reus of an offence may involve an act or an omission (conduct crimes); certain consequences being caused (result crimes); or the existence of surrounding circumstances (state of affairs crimes). The general rule is that there is no liability for an omission to act but there are exceptions, namely statutory duty, contractual duty, special relationship, voluntary assumption of care and duty to avert a danger created. Causation must be proved as part of the actus reus for result crimes. For factual causation, it must be established that ‘but for’ the defendant’s conduct, the result would not have occurred as and when it did. Legal causation requires the defendant’s conduct to be a more than minimal cause of the result, so that it is an operating and substantial cause of the outcome. If the chain of causation is broken by an intervening event, the actus reus will not be established. Such events include: an unforeseeable escape; a voluntary act by a third party; negligent medical treatment that was ‘so independent of the defendant’s act’ and ‘so potent in causing death’ that the contribution made by the defendant was rendered insignificant; and events that are not reasonably foreseeable. The eggshell or thin skull rule states that the defendant must ‘take their victim as they find them’. Sample questions Question 1 A defendant is charged with murder after stabbing the victim, her partner, during an argument about money. The defendant was arrested at the scene with the bloodied knife in her hand. The defendant intends to rely upon the partial defence of loss of control. Which of the following best describes how the legal and evidential burdens would operate in this case, and what standard of proof applies? A The legal and evidential burden is on the prosecution to prove, beyond reasonable doubt, that the defendant murdered the victim and this is likely to be satisfied by the defendant’s arrest at the scene with the knife. There is no burden on the defendant. B The legal and evidential burden is on the prosecution to prove that the defendant murdered the victim. The jury must be satisfied of this on the balance of probabilities and this is likely due to the defendant’s arrest at the scene with the knife. C The legal burden of proof and the evidential burden is on the prosecution to prove that the defendant murdered the victim. There is also an evidential burden on the defendant in relation to the partial defence of loss of control that may be satisfied by the defendant giving evidence. D The legal and evidential burden is on the defence to satisfy the jury beyond reasonable doubt that the defendant killed the victim when suffering from a loss of control and the defendant will need to give evidence at the trial to establish this. E Once the prosecution have provided evidence of the arrest and the bloodied knife, the legal burden of proof moves to the defence to satisfy the jury beyond reasonable doubt that the defendant is not guilty of murder. 17 Criminal Law Answer The correct option is C which accurately describes how the legal burden and standard of proof operate on the prosecution and how the evidential burden applies to the prosecution. The answer also correctly states that there is an evidential burden on the defendant in relation to her defence of loss of control. The legal burden of proof is on the prosecution to prove that the defendant murdered the victim, so both options D and E are wrong. Option A is wrong as the defendant wishes to rely upon the partial defence of loss of control and so she has an evidential burden in this regard, which could be satisfied by her giving evidence in court. Thus, it is not correct to say there is no burden on the defence. Option B is wrong because the jury must be satisfied of the defendant’s guilt beyond reasonable doubt and not on the balance of probabilities. Question 2 A man works as a paramedic for the local health authority. He and a woman are living in the same rented accommodation with shared communal areas. One evening, they are in the kitchen together when they have an argument, during which the man shoves the woman. She stumbles backwards, falls and hits her head on the corner of the kitchen table. The man sees her unconscious on the floor, panics and runs out of the flat. Shortly afterwards, a total stranger who is delivering leaflets, glances through the window and sees the woman still unconscious on the floor. The stranger does not want to get involved, so he walks away. Two hours later, the woman regains consciousness and just manages to telephone the emergency services. She is rushed to hospital but dies of her injuries because she did not receive treatment more quickly. Which of the following best describes the man’s liability for the woman’s death? A The man is not liable for the woman’s death because, although his act of shoving her is a substantial cause of the death, it is not the only cause. B The man is liable for his failure to get help for the woman because he has a special relationship with her. C The man is liable for his failure to summon help because, having created a dangerous situation of which he is aware, he is under a duty to take reasonable steps to mitigate the results of his own actions. D The man is liable for his omission to act because he has a contractual duty as a paramedic to assist anyone who has been injured. E The man is not liable for his omission because the woman would have lived had she received medical treatment more quickly. The stranger is responsible for her death because he does nothing when he sees the woman on the floor and this breaks the chain of causation. Answer Option C is the best answer as it correctly describes the man’s liability. Option A is wrong because the man’s act of shoving the woman does not need to be the only cause provided it is a substantial and operating cause of her death; it is here as the woman dies of her injuries. The delay in receiving treatment does not break the chain of causation. 18  Actus Reus Option B is unlikely to be correct and it certainly does not ‘best describe’ the man’s liability because living in a shared arrangement would not count as a special relationship for the purposes of the criminal law. Option D is wrong as, although the man is employed as a paramedic, he is not working at the time of the incident so his contractual duties do not apply. Option E is wrong because the general rule is that there is no liability for omissions unless the defendant falls into one of the exceptions. The stranger is not under a duty to act and is not criminally liable at all. Question 3 The defendant is angry with the victim as he has just discovered that the victim has been messaging the defendant’s girlfriend over social media. They have an argument at college during which the defendant produces a knife and stabs the victim in the stomach. The victim is rushed to hospital by ambulance but subsequently dies and the defendant is charged with his murder. The defendant argues that he is not liable because of an intervening event. Which of the following events is most likely to break the chain of causation? A On the way to the hospital, the car in front of the ambulance stops unexpectedly when it breaks down, causing the ambulance to collide with it. The victim dies while waiting for a second ambulance to attend. B The victim is kept waiting for several hours at the Accident and Emergency Department of his local hospital and dies from complications arising from the stab wound. C The victim receives prompt medical treatment, but dies a month later after falling into a coma as a result of a carelessly administered anaesthetic during surgery. D The victim refuses to accept medical treatment because of his religious beliefs and dies from the stab wound, when he would not have done otherwise. E The victim is in hospital recovering from successful surgery for his injuries when a tree falls onto the hospital ward during a violent winter storm and kills him in his bed. Answer Option E is the correct answer as the victim dies as a result of an unforeseen and extraordinary natural event. The chain of causation is not broken in option A because the action of the motorist’s car breaking down was not free, deliberate and informed (voluntary). Although it may be argued that the event was not reasonably foreseeable, this is unlikely to succeed as road traffic accidents are a common occurrence. The defendant remains liable for the victim’s death in option B as the stab wound is the substantial and operating cause of his demise (he dies from complications arising from the original injury). The negligent medical treatment which the victim receives in option C may not be enough to break the chain of causation as it has to be so independent of the defendant’s act and so potent in causing death that the contribution made by the defendant is rendered insignificant. In this instance, the defendant’s act of stabbing the victim is not ‘insignificant’ as without this, he would not have needed an operation at all. The victim’s refusal to accept medical treatment in option D is not an intervening event because the defendant must take his victim as he finds him and this includes the ‘whole man’ and not just the ‘physical man’. 19