#17485 - Criminal Liability The Actus Reus In Crime - Criminal Liability

ACTUS REUS WHAT IS IT?The physical element of the crime 'external element' of the crime Excludes mind set R v Deller 1952Mens Rea (intention) will not suffice alone, to commit a crime - it requires actus reus. WHAT IT ENTAILS • • • • • • Not just an 'act' - it also includes consequences/ result Throwing a stone not a crime itself, but the result of hitting someone with it is. For e.g - death is a consequence of the murder - actus reus of a murder also includes death Not the physical act of killing alone. May include surrounding circumstances of the defendant May also include omission. R v Scott 1967Actus Reus and Mens Rea must coincide E.g, the actus reus must have been intentional Exceptions of coincidence of actus reus and mens rea > Continuing to act. Fagan v Metropolitan Police Commisoner 1969 Kaitamaki v R 1984 The case concerned rape, and the act in question said that 'sexual intercourse is complete upon penetration', counsel for the appellant said that his client did not rape the victim, as rape is penetration without consent. Once penetration is complete, the act of rape is concluded as rape is defined as sexual intercourse. Continuing the act - he argued - was intercourse and not rape, as rape stops after penetration is complete.The sections purpose is to remove doubts as to the minimum conduct needed to prove sexual intercourse Complete is used in the sense of coming into existence, not of being at an end. Sexual intercourse is a continuing act and ends only with withdrawal. R v Thabo MeliKilling and disposing of body seen as one continuous act. State of affairs Some authorities suggest state of affairs alone can amount to an actus reus even if the D was not responsible for bringing it about. R v Larsonneur (1933) The defendant, a French woman, was deported against her will, from Ireland to England, by the Irish authorities. Upon her arrival she was immediately charged with the offence of 'being' an illegal alien.conviction was upheld despite the fact that she had not voluntarily come to England. CC v Ireland 2005 Criminal law amendment act 1935 > Offence to have sex w/ girl under 15 whatever the mistake the male made about age > strict liability with no defence. CC v Ireland 2006 - second decision and they decided This is unconstitutional. Why?Stigma attached the be convicted on this offence > sex offenders register Act doesn't balance rights > unilaterally preferred female rights Made liable irrespective of their intentions. Instead, the act prohibits criminal liability to be imposed if you were'mentally innocent' As crimes require mens rea So would state of affairs succeed post CC? Omissions and the duty to act • • 1. 2. 3. 4. 5. The general principle is that there isn't a rule of good Samaritan - there is no duty to the world at large to act. Generally, omission cannot be the basis for a criminal conviction, however there are exceptions: Relationship - mother and child or cohabiting spouses Voluntary assumption of the duty There is a contract to act and they fail to do so (express OR implied) Creation of a risk and then omits to act to prevent the harm. One comes to the aid of another in peril, and omits further aid creating a risk worse than if there had been no assistance at all. R v PaineUnless there is a pre-existing duty to do so. A) Legislative duty B) Relationship/ voluntary assumption of duty C) Creation of risk D) Public law duties E) Contractual duties Mandatory reporting as a legislative duty OASAA - 1998 CERTAIN TERRORIST CRIMES • • •Failure to disclose material information which may prevent commission of serious offence Secure apprehension, prosecution or conviction. And fails w/out reasonable excuse to disclose as soon as is practicable Serious offence - 5 years or more severe penalty Involves - loss of human life, serious PI (other than of sexual nature), FI, serious loss or damage to property, serious risk of any such loss, injury, imprisonment or damage. Practically, v limited impact. Criminal Justice Act 2011 WHITE COLLAR CRIMES 19: in relation to certain types of crime • Person is guilty of an offence if they have info which they believe might be of material assistance in: a) PREVENTING commission of offence b) SECURING apprehension, prosecution OR conviction of a RELEVANT OFFENCE and fails to disclose it without any reasonable excuse and its practicable to disclose such info to a member of GS PENALTY? ➢ Summary conviction - class A fine or imprisonment for 12 months or less (or both) ➢ Indictment - fine or imprisonment for 5 years or less (or both) • Forward looking and backward-looking duty e.g prevention and prosecution - prevention forward looking, but can also be used retrospectively to prosecute someone. What's a relevant offence? • 130 offences of dishonesty Listed in schedule 2: All thefts however minor Crime of dishonest use of a computer False accounting offences Significant for forensic investigators and computer security research. ➢ ➢ ➢ ➢ As soon as practicable - internal investigators permitted? Time to take legal advice? Retrospective Any person - personal No definition of reasonable excuse - legal privileges likely to be considered - discretionary - is this unconstitutionally vague? This could act as a defence. ➢ No protections for people reporting - unfair? Intimidation reasons but stuck between that and abiding by the law. Criminal Justice (Withholding of information of offences against children and vulnerable persons) Act 2012 • • • •• • • • • •Failure to disclose information relating to an offence committed against a vulnerable person that you know or believe to have taken place = guilty of an offence Or have info that might be of material assistance in a) SECURING the apprehension or prosecution or conviction of that person for that offence and fails to disclose it w/out any reasonable excuse and it was practicable to disclose to a GS member In addition to, and not substitution for any other obligation that the person has to disclose the info They don't have to disclose it more than once It shall be a defence for the accused to show that the vulnerable person concerned made known their view that the commission of the offence or the info relating to it shouldn't be disclosed to the GS member. OR If the parents made known this view on behalf of the child It's a defence for the parents to show they formed such a view on behalf of the child ONLY if they had reasonable grounds for that view. This defence doesn't operate if they are the people who are being accused of the offence or crime committed against the child/ vulnerable person. (separate from the lack of disclosure offence that's being considered) Children Mentally ill/ disabled adults if: Severely restricts capacity of that person to guard themselves against serious exploitation or abuse, physical or sexual, by another. Physically disabled adults if: Same as above with added provision - or if it severely restricts their ability to report such exploitation or abuse to the GS ➢ Not retrospective - only applies after act comes into force. ➢ Provides for defences where they don't want it to be reported. ➢ Victim not liable for failure to report. Duties based on relationship with victim / voluntary assumption of duty R v Bubb 1851Parent has a duty to protect child DPP v O'BrienDuty of one spouse to protect another from attack.