ELEMENTS OF A CRIME ACTUS REUS STUDY GUIDE 3 Introduction In order to be guilty of a crime two core things must be proved:

: i) ii) That the defendant carried out the criminal act the actus reus or guilty act or omission; and That the defendant had a guilty state of mind the mens rea or guilty min.

The actus reus consists of all elements of a crime other than the state of mind of the defendant. It may consist of: conduct or an omission, a state of affairs or result.

1. Act1 or Conduct: The conduct itself might be criminal. For example the conduct of lying under oath represents the crime of perjury. Conduct must be voluntary2 or freely willed if defendant is to incur liability. An act which is involuntary does not give rise to criminal liability.

R v Hudson & Taylor [1971] 2 All ER 244 Two teenage girls committed perjury during the trial of X. They claimed that X's gang had threatened them with harm if they told the truth and that one of them was sitting in the public gallery during the trial. Held: Lord Widgery CJ; the threats were likely to be no less compelling, because their execution could not be effected in the court room, if they could be carried out in the streets of Salford the same night. [the defence] should have left the jury to decide whether the threats had overborne the will of the appellants at the time when they gave the false evidence. Although DD were protected during the trial the danger would have persisted afterwards. Not guilty Hill v Baxter [1958] 1 All ER 193 D was behind the wheel when his car collided with another; at his trial on a charge of dangerous driving, he claimed he had been overcome by an unknown illness and had been unconscious. Held: Some credible evidence must support a claim of sudden illness or concussion, they said, usually going beyond D's mere assertion, but (Lord Goddard CJ dissenting) the burden of proof thereafter is on the prosecution to show that the act was a voluntary one.

An act involves physical behaviour. It does not include the mental processes of planning or thinking about the physical act that gives rise to the criminal activity (such is the domain of mens rea). 2 In the context of actus reus, voluntary may be defined simply as any volitional movement. Habitual conduct even if the defendant is unaware of what he is doing at the time may still be deemed voluntary. Acts deemed involuntary may include: spasms, seizures, and bodily movements while unconscious or asleep.

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Lord Goddard, quoting Humphreys J in Kay v Butterworth 1945 resurrected the now famous and hypothetical Swarm of Bees. Guilty R v Quick [1973] 3 All ER 34 D, a nurse, assaulted a patient. He was a diabetic, had taken insulin and not eaten sufficient food. He drank whisky and rum he could not remember the assault. He pleaded automatism. Held: D was suffering from automatism, which is a mental abnormality caused by an external factor. He was not suffering from insanity caused by hypoglycaemia (low sugar in the blood) by taking insulin prescribed by his doctor. [Distinguished from hyperglycaemia high blood sugar occurring naturally, which would be insanity] Lawton LJ: 'a self-induced incapacity will not excuse ... nor will one which could have been reasonably foreseen as a result of either doing or omitting to do something, for example, taking alcohol against medical advice after using certain prescribed drugs or failing to have regular meals while taking insulin.' Not guilty R v Bailey [1983] 1 WLR 760 D seriously injured a rival in love with an iron bar. D, a diabetic, visited his ex-girlfriend and her new partner. He took insulin and drank some sugared water but he had nothing to eat. He assaulted the partner of his ex-girlfriend. He said he hit him to teach him a lesson for associating with the girl. D claimed he acted in a state of automatism caused by hypoglycaemia. He did not complicate the issue with alcohol or drugs. Held: Automatism, even if self-induced could provide a defence to a crime of basic intent crime (unless caused by intoxication). What must be considered is whether D, in view of his knowledge of the likely results of his actions, was sufficiently reckless. It was not necessarily reckless to fail to take food after a dose of insulin. Guilty although non-insane (self-induced) automatism, no injustice at trial.

R v Lipman (1969) 3 All ER 410 D and his girlfriend V each took a quantity of LSD (a hallucinatory drug). During his "trip", D imagined he was being attacked by snakes at the centre of the earth and had to defend himself; in doing so, he actually killed V by cramming eight inches of sheet down her throat. Held: He was acquitted of murder because the jury were not sure that he had the necessary intention, being intoxicated. Guilty of manslaughter

ELEMENTS OF A CRIME ACTUS REUS STUDY GUIDE 3 Leicester v Pearson [1952] 2 All ER 71 A car driver was prosecuted for failing to give precedence to a pedestrian on a zebra crossing, but was acquitted when it was established that his car had been pushed onto the crossing by another car hitting it from behind. R v Mitchell [1983] 2 All ER 427, CA The appellant tried to jump the queue at a Post Office. An elderly man took issue with the appellant's behaviour and challenged him. The appellant hit the old man and pushed him. The man fell back onto others in the queue including an elderly lady who fell and broke her leg. She later died. The appellant was convicted of manslaughter and appealed contending that the unlawful act was not directed at the woman. Held: The appeal was dismissed and the conviction was upheld. There was no requirement that the unlawful act be directed at the victim. R v McPherson [1973] Crim LR 191, CA D took bottles of whiskey from a display stand and placed them in a shopping bag. The question was whether the taking at the display stand could amount to appropriation before the bottles had been taken past the payment counter. Held: lacing of the bottles in a shopping bag with an intent to steal, amounted to appropriation within the Theft Act s. 1(1). Guilty R v Savage [1991] 4 All ER 698, HL The defendant threw a pint of beer over the victim in a pub. The glass slipped out of her hand and smashed and cut the victim's wrist. The victim was her husband's ex-girlfriend and there had been bad feeling between the two. The defendant maintained that it was never her intention to throw the glass just to humiliate her by throwing the beer. The trial judge directed the jury that malicious meant that an unlawful act was deliberate and aimed against the victim and resulted in the wound. The jury convicted and the appellant appealed. The Court of Appeal held this was misdirection as it did not correctly state that malicious included recklessness and this is decided subjectively. The Court of Appeal substituted a conviction of ABH under s.47 OAPA 1861 and certified a point of law to the House of Lords as to whether it was necessary under s.20 to establish that the defendant intended or was reckless as to the infliction of GBH or whether it was sufficient that the defendant foresaw some harm. Held: It was not necessary to demonstrate the defendant had the mens rea in relation to level of harm inflicted. It was sufficient that they intended or could foresee that some harm will result. Winzar v Chief Constable of Kent (1983) Times 28/3/83 The defendant had been admitted to hospital on a stretcher. Upon examination he was found to be drunk and was told to leave. Later he was found in a corridor of the hospital and the police were called to remove him. The police officers took the defendant outside onto the roadway, then placed him in a police car and drove him to the police station where he was charged with "being found drunk in a public highway". The defendant was convicted, and appealed on the ground that he had not been on the public road of his own volition. The Divisional Court upheld the conviction holding that all that was required for liability was that the defendant should be perceived to be drunk whilst on a public highway. There was no need for the court to have any regard as to how he came to be there.

ELEMENTS OF A CRIME ACTUS REUS STUDY GUIDE 3 R v Antoniuk (1995) unreported The defendant was drowsy with drink and her lover found her unconscious on her living-room floor. The victim then hauled her to bed, her head banging on the stairs, and raped her. The defendant went to the kitchen and returned with a knife and stabbed her lover. The defendant argued that she was not responsible for her actions as she had been suffering from automatism from the shock of being raped. At Kingston Crown Court the trial judge said "If her amnesia is real, because of automatism, then she is not to be convicted". The jury found her not guilty of wounding charges. Automatism The defendant must fulfil two conditions: a) Total loss of voluntary control Bratty v AG for Northern Ireland [1963] AC 386 D strangled a girl with her stocking. He claimed that at the time he was suffering from psychomotor epilepsy. Held: D is entitled to raise the defence of automatism if the jury rejects the defence of insanity. No act is punishable if it is done involuntarily and an involuntary act 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 done whilst sleep-walking'. An act is not involuntary simply because the defendant does not remember it or because he was unable to control an impulse to do it. Lord Denning: "Any mental disorder which has manifested itself in violence and is prone to recur is a disease of the mind (p. 412)." Psychomotor epilepsy would be insanity. Guilty R v Charlson [1955] 1 All ER 859 D, for no apparent reason, hit his ten-year-old son on the head with a hammer and threw him into a river. There was evidence that D, an otherwise good father suffered from a cerebral tumour which could have caused the sudden violence. Held: D did not know what he was doing, so that his mind was not in control of his limbs. (The question of insanity was apparently not raised). Not guilty of sec 18 OAPA 1861

ELEMENTS OF A CRIME ACTUS REUS STUDY GUIDE 3 b) External Factors The inability to control ones acts must result from the operation of some external factor upon the working of the brain, rather than an inherent mental defect. R v Quick [1973] 1 QB 910 The defendant, a diabetic, was in a state of hypo-glycaemia. During a blackout he injured a person. Quick collapsed after the assault and could not recall it. He had taken his insulin in the morning, but had eaten very little afterwards and had been drinking. His doctor testified that on a dozen occasions, Quick had been admitted to hospital in a semi-conscious or unconscious state, due to hypoglycaemia. The trial judge ruled that this evidence raised the defence of insanity. The Court of Appeal quashed the defendant's conviction and conceded that there was a defence known to the law of non-insane automatism, involuntary conduct which is not brought about by a disease of the mind but through other factors. Lawton LJ considered it an affront to common sense to regard a person as mad whose symptoms can be rectified by a lump of sugar: "A malfunctioning of the mind of transitory effect caused by the application to the body of some external factor such as violence, drugs, including anaesthetics, alcohol and hypnotic influences cannot fairly be said to be due to disease." R v T [1990] Crim LR 256 A few days after having been raped, the defendant was involved in an incident which led to charges of robbery and causing actual bodily harm. The defendant claimed that she was in a dream-like state. Medical evidence showed that she was suffering from Post-Traumatic Stress Disorder as a result of the rape, with the consequence that she was in a Dissociative State at the time of the alleged offences, not acting with a conscious mind or will. Southan J (at Snaresbrook Crown Court) ruled that a proper foundation had been laid for the defence of automatism to go before the jury. It was his view that an incident such as rape could have an appalling effect on a young woman, however stable, and that could satisfy the requirement laid down in Quick that there had to be evidence of "an external factor" causing a malfunctioning of the mind. Post-Traumatic Stress, involving as the evidence in the present case suggested, a defendant acting as though in a "dream", could therefore amount to automatism. The jury nevertheless convicted her.

R v Sullivan [1984] AC 156 The appellant kicked a man. At the time of the attack he was suffering from epilepsy. The trial judge ruled that on the evidence the appropriate defence was insanity not automatism. The appellant appealed. Held: The appeal was dismissed. The trial judge was correct in only allowing insanity to be put for the jury's consideration. Lord Diplock: "The purpose of the legislation relating to the defence of insanity, ever since its origin in 1800, has been to protect society against the recurrence of the dangerous conduct.

ELEMENTS OF A CRIME ACTUS REUS STUDY GUIDE 3 The duration of a temporary suspension of the mental faculties of reason, memory and understanding, particularly if, as in the appellant's case, it is recurrent, cannot on any rational ground be relevant to the application by the Courts of the McNaghten Rules, though it may be relevant to the course adopted by the Secretary of State, to whom the responsibility for how the defendant is to be dealt with passes after the return of the special verdict of "not guilty by reason of insanity" R v Burgess [1991] 2 QB 92 CA The defendant visited a woman to watch a video in her flat. During the course of the evening she fell asleep on the sofa. She was awoken by the defendant smashing a bottle over her head. Before she could stop him he had picked up the video recorder and brought it down on her head causing cuts and bruises. At his trial the defendant adduced expert medical evidence to the effect that he had been sleep-walking at the time of the attack and that the defence of automatism should be put before the jury. The trial judge ruled that the only defence the evidence revealed was that of insanity, and the jury in due course found him not guilty by reason of insanity. The Court of Appeal dismissed the defendant's appeal. Lord Lane CJ considered this 'disease of the mind' to be due to an "internal" cause. The ordinary stresses and disappointments of life which are the common lot of mankind do not constitute an external cause constituting an explanation for a malfunctioning of the mind. He then went on to say: "We accept that sleep is a normal condition, but the evidence in the instant case indicates that sleepwalking, and particularly violence in sleep, is not normal." Consequently, on the evidence the judge was right to conclude that this was an abnormality or disorder, albeit transitory, due to an internal factor, which had manifested itself in violence and which might recur. 2. Omission The general rule regarding omission is that there is no failure to act. This general rule however, is subject to exceptions. Unless it can be shown the defendant has a duty to act, there will be no liability. i) Under a contract or holding a particular public position R v Pittwood [1902] TLR 37 D a level crossing keeper who negligently left open the crossing gate. This led to the death of a carter whose cart was struck by a train. Held: D had a duty to shut the gate (owed to his employers rather than to the public at large), but it was enough that his negligent failure to act could lead to conviction. Guilty gross negligence manslaughter R v Yuthiwattana (1985) 80 Cr. App. R. 55 D a landlady refused to replace a missing door key for the occupier of a bed-sitting room in her house. He had to depend for the rest of his time there on someone being in the

ELEMENTS OF A CRIME ACTUS REUS STUDY GUIDE 3 premises to let him in. The continuing refusal of a replacement key was an act calculated to interfere with the peace and comfort of [the tenant] with the intent to cause him to give up occupation of his room. Held: There was conduct in in addition to the refusal to provide a front door key and it seems not to have been argued that the failure to provide a key was a mere omission. Guilty R v Dytham [1979] QB 722 D, whilst on duty and in uniform some 30 yards away from the entrance to a club, from which he saw a man ejected. Shortly afterwards there was a fight involving cries and screams and the man was beaten and kicked to death in the gutter outside the club. He then left without calling for assistance or summoning an ambulance. Lord Widgery: "The allegation made was not of mere non-feasance but of deliberate failure and wilful neglect. This involves an element of culpability which is not restricted to corruption or dishonesty but which must be of such a degree that the misconduct impugned is calculated to injure the public interest so as to call for condemnation and punishment." Guilty of the common-law offence of wilful misconduct in public office. ii) Through parenthood or family R v Smith (1979) Crim LR 251 D the husband of a woman who gave birth to a stillborn child at home, delivered by her husband. D wanted to get medical attention for her but she would not allow this. Three days later when she became unconscious, D called the doctor, who did not arrive until after she died. The medical evidence was such that if a doctor had been summoned earlier the woman might not have died. Held: At the trial the judge instructed the jury that D owed a duty to his wife. The jury could not agree upon the charge of manslaughter and was discharged from giving a verdict.

Gibbins & Proctor (1918) 13 CAR 134 D and his common law wife failed to feed the man's 7 year-old child, Nelly, and she died from starvation. The woman hated Nelly, and was clearly the moving force. Held: Where there is the duty to act, failure to do so can lead to liability even for murder if the necessary mens rea is present. The woman was held to be liable because, while the child was not hers, she was living with the man and had accepted his money for food. The courts regarded the parent's duty towards a young child as so self-evident as not to require analysis or authority.

ELEMENTS OF A CRIME ACTUS REUS STUDY GUIDE 3 Evans [2010] 1 All ER 978 The victim was a drug addict. Her half-sister obtained drugs from a dealer and supplied them to the victim. The victim overdosed and died. Evans was charged and convicted of gross negligence manslaughter. The Court of Appeal held that Evans owed a duty of care to the victim to seek help for her. The duty owed was to counteract the situation which Evans had created by supplying the drugs. The appeal against conviction was dismissed. Where a person dies after taking drugs, the supplier cannot be guilty of unlawful act manslaughter, but can, following Evans, be guilty of gross negligence manslaughter if they fail to counteract the situation' which they have created'.

Re B (A Minor) [1981] 1 WLR 1421 D, local authority. Surgeon agreed with parents to allow to die a child with Down's and complications. Held: The best interests of the child where that she should have an operation, not whether the parents' wishes should be respected; child could expect normal span of life of a Mongol. Child allowed to live iii) Through a voluntary undertaking Stone & Dobinson [1977] 1 QB 354 S and D allowed Stone's ill and unstable sister , Fanny, to live in their house. Fanny was suffering from anorexia and her condition deteriorated, until she became bed-ridden. She needed medical help, but none was summoned and she eventually died in squalor, covered in bed sores and filth. Held: Because they had taken Fanny into their home, they had assumed a duty of care for her and had been grossly negligent in the performance of that duty. The fact that Fanny was Stone's sister was merely incidental to this. Geoffrey Lane LJ: The duty which the defendant has undertaken is a duty of caring for the health and welfare of the infirm person. What the prosecution have to provide is a breach of that duty in such circumstances that the jury feel convinced that the defendants conduct can properly be described as reckless, that is to say a reckless disregard of danger to the health and welfare of the infirm person. Mere inadvertence is not enough. The defendant must be proved to have been indifferent to an obvious risk of injury to health, or actually to have foreseen the risk but to have determined nevertheless to run it. Both guilty of manslaughter by gross negligence.

Instan [1893] 1 QB 450 D lived with her aunt, who was suddenly taken ill with gangrene in her leg and became unable either to feed herself or to call for help. D did not give her any food, nor did she call for medical help, even though she remained in the house and continued to eat her aunt's food. The aunt's dead body was found in the house decomposing for about a week.

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Held: A duty was imposed upon D to supply the deceased with sufficient food to maintain life, and that, the death of the aunt having been accelerated by the neglect of such duty. Lord Coleridge, CJ: "It would not be correct to say that every moral obligation involves a legal duty; but every legal duty is founded on a moral obligation. A legal common law duty is nothing else than the enforcing by law of that which is a moral obligation without legal enforcement." In this case, as in most cases, the legal duty can be nothing else than the taking upon oneself the performance of a moral obligation Guilty of manslaughter iv) Creation of a dangerous situation R v Miller [1983] 2 AC 161 D a vagrant was sleeping in a building, and fell asleep on his mattress. When he woke up, he saw that his cigarette had caused the mattress to smoulder. Instead of calling for help, just moved into another room. The fire flared up and spread. Held: He was convicted of arson, not for starting the fire but for failing to do anything about it. Lord Diplock: ...I see no rational ground for excluding from conduct capable of giving rise to criminal liability, conduct which consists of failing to take measures that lie within one's power to counteract a danger that one has oneself created, if at the time of such conduct one's state of mind is such as constitutes a necessary ingredient of the offence. I venture to think that the habit of lawyers to talk of "actus reus," suggestive as it is of action rather than inaction, is responsible for any erroneous notion that failure to act cannot give rise to criminal liability in English law." Guilty of arson (criminal damage by fire) Fagan v Metropolitan Police Commissioner [1969] 1 QB 439 D was directed by PC Morris to park his car. D accidentally drove his car on the policemans foot. The PC let him know what he had done and asked him to move off his foot. D then refused to move off the PCs foot. Held: An assault is any act which intentionally or possibly recklessly causes another person to apprehend immediate and unlawful personal violence.

James: A mere omission to act cannot amount to an assault. For an assault to be committed both the elements of actus reus and mens rea must be present at the same time. It is not necessary that mens rea should be present at the inception of the actus reus; it can be superimposed upon an existing act.

ELEMENTS OF A CRIME ACTUS REUS STUDY GUIDE 3 On the other hand, the subsequent inception of mens rea cannot convert an act which has been complete without mens rea into an assault. Where an assault involved a battery, it matters not whether the battery is inflicted directly by the body of the offender or through the medium of some weapon or instrument controlled by the action of the offender. To constitute this offence, some intentional act must have been performed; a mere omission to act cannot amount to an assault. If the act, as distinct from the results thereof, is a continuing act, there is a continuing threat to inflict unlawful force. If the assault involves a battery and that battery continues, there is a continuing act of assault. Guilty DPP v Santana-Bermudez [2003] All ER 168 D injured a woman police officer by allowing her to search him, knowing he had hypodermic needles in his pockets which stabbed her. D denied having any needles or sharps when asked. D was convicted by the Magistrates, but acquitted at Crown Court. On appeal by way of case stated from the Crown Court, prosecutor's appeal was allowed. Held: Where someone created a danger and thereby exposed another to a reasonably foreseeable risk of injury, there was an evidential basis for the actus reus of an assault occasioning actual bodily harm. D had created a danger by an act that act was a continuing act . The risk of injury was foreseeable. Not guilty but would be now

R v EB [2006] EWPA Crim 2945 Whether a person is guilty of rape if he has consensual sex with another without disclosing HIV status is consent vitiated? EB had sexual intercourse with the claimant. EB was HIV positive and failed to disclose this to the complainant. The question for the Court of Appeal was whether the apparent consent given by the complainant was ineffective as a result of EB's failure to disclose his status. The Court of Appeal held that a charge of rape could not lie in these circumstances. It was held that: Where one party to sexual activity has a sexually transmissible disease which is not disclosed to the other party any consent that may have been given to that activity by the other party is not thereby vitiated. The act remains a consensual act. (at 17) However, this ruling does not mean that there is a defence to a charge resulting from harm created by the sexual activity (i.e. passing on HIV), but only relates to consent in sexual offences.

ELEMENTS OF A CRIME ACTUS REUS STUDY GUIDE 3 The list of situations recognised by the courts giving rise to a duty to act is not a closed one and it may be that as situations arise the courts will recognise new categories. R v Khan & Khan [1998] Crim LR 830 The two appellants sold heroin to a 15 year old girl at their flat. This was the first time she had used heroin and she used twice the amount generally used by an experienced user. She took the heroin in the presence of the appellants. She fell into a coma and the appellants left the flat leaving the girl alone when it was clear that she required medical assistance. They returned to the flat the following day and found her dead. Medical evidence was such that if the girl had received medical assistance she would not have died. They were convicted of gross negligence manslaughter and appealed contending that a drug dealer does not owe a duty of care to summon medical assistance to his client. Held: The convictions were quashed due to misdirection but the court did not rule out the possibility of a duty of care being owed by drug dealers. "He (the trial judge) did not make any ruling as to whether the facts were capable of giving rise to the relevant duty and he did not direct the jury in relation to that issue. To extend the duty to summon medical assistance to a drug dealer who supplies heroin to a person who subsequently dies on the facts of this case would undoubtedly enlarge the class of person to whom, on previous authority, such a duty may be owed. It may be correct to hold that such a duty does arise. However before that situation can occur, the Judge must first make a ruling as to whether the facts as proved are capable of giving rise to such a duty and, if he answers that question in the affirmative, then to give the jury an appropriate direction which would enable them to answer the question whether on the facts as found by them there was such a duty in the case being tried by them. Unfortunately, the question as to the existence or otherwise of a duty to take care towards the deceased was not, in this case, at any time considered by the Judge, and the jury was given no direction in relation to it. The behaviour of these two Defendants towards Lucy Burchell was about as callous and repugnant as it is possible to imagine but, for the reasons which we have given, we are obliged to quash the convictions for manslaughter. R v Singh [1999] D managed a block of flats where one of the tenants died of carbon monoxide poisoning. The gas fires in many of the flats were unsafe, and there had been complaints from other tenants. Held: D had a duty of care Guilty R v Evans (Gemma) [2009] EWCA Crim 650 The appellant was convicted of gross negligence manslaughter along with her mother in relation to the death of her 17 year old sister, Carly Townsend who died of a heroin overdose. The appellant was 8 years older than her sister. The appellant, her mother and Carly all had a history of heroin addiction. Carly had just been released on licence from a detention and treatment order and a condition of the licence was that she resided at her mother's house. The appellant moved in with her mother after her boyfriend was sent to prison. The appellant bought some heroin and gave it to Carly. Carly selfinjected the heroin and then developed symptoms which the appellant, from her own experience, recognised as being consistent with an overdose. The appellant and her mother decided not to seek medical assistance for fear of getting into trouble. Carly died. The appellant appealed against her conviction for gross negligence manslaughter on the grounds that the judge had left it to the jury to

ELEMENTS OF A CRIME ACTUS REUS STUDY GUIDE 3 decide whether the appellant owed a duty of care and that it was wrong to leave this to the jury where this would involve an extension of principles relating to duty of care. Held: The judge was wrong to leave the jury to decide the issue of duty of care. The existence, or otherwise, of a duty of care or a duty to act, is a question of law for the judge: the question whether the facts establish the existence of the duty is for the jury. However, the mis-direction did not render the conviction unsafe. The appellant's duty of care arose not out of her familial relationship, nor from her actions in seeking to care for Carly, but from her supplying the heroin. She had in effect created a dangerous situation and failed to take action to reduce the risk by summoning medical assistance which would have saved her. Lord Chief Justice: "The duty necessary to found gross negligence manslaughter is plainly not confined to cases of a familial or professional relationship between the defendant and the deceased. In our judgment, consistently with Adomako and the link between civil and criminal liability for negligence, for the purposes of gross negligence manslaughter, when a person has created or contributed to the creation of a state of affairs which he knows, or ought reasonably to know, has become life threatening, a consequent duty on him to act by taking reasonable steps to save the other's life will normally arise." General Cases Airedale NHS Trust v Bland [1993] 1 All ER 821 Tony Bland was a young supporter of Liverpool F.C. who was caught in the Hillsborough crush which reduced him to a persistent vegetative state. He had been in this state for three years and was being kept alive on life support machines. His brain stem was still functioning, which controlled his heartbeat, breathing and digestion, so technically he was still alive. However, he was not conscious and had no hope of recovery. The hospital with the consent of his parents applied for a declaration that it might lawfully discontinue all life-sustaining treatment and medical support measures designed to keep him alive in that state, including the termination of ventilation, nutrition and hydration by artificial means. Held: The declaration was granted.

The court recognised there was the intention was to cause death. Lord Goff stated to actively to bring a patient's life to an end is:-

"To cross the Rubicon which runs between on the one hand the care of the living patient and on the other hand euthanasia - actively causing his death to avoid or to end his suffering. Euthanasia is not lawful at common law": per Lord Goff at p. 865 F. Withdrawal of treatment was, however, properly to be characterised as an omission. An omission to act would nonetheless be culpable if there was a duty to act. There was no duty to treat if treatment was not in the best interests of the patient. Since there was no prospect of the treatment improving his condition the treatment was futile and there was no interest for Tony Bland in continuing the process of artificially feeding him upon which the prolongation of his life depends.

ELEMENTS OF A CRIME ACTUS REUS STUDY GUIDE 3 Greener v DPP (1996) 160 JP 265 The defendant was the owner of a young, powerful Staffordshire Bull Terrier. He had left the dog chained in an enclosure in his back garden. The dog had strained and bent the clip releasing its chain. It had escaped from the enclosure and entered a nearby garden where it bit the face of a young child. Section 3(3) of the Dangerous Dogs Act 1991 provides that if the owner of a dog allows it to enter a place which is not a public place but where it is not permitted to be and while it is there it injures any person, he is guilty of an offence. It was held by the Divisional Court that an offence under s3(3) could be committed by omission. The word "allows" included taking and omitting to take a positive step. In the present case the defendant had failed to take adequate precautions. Similar precautions had been taken in the past but they were obviously inadequate as the fastening was not good enough and the enclosure not secure. Lowe [1973] 1 QB 702 D a man of low intelligence, was alleged to have neglected his baby daughter by failing to summon medical assistance when she became ill. The child died some 10 days later of dehydration and gross emaciation. The woman with whom D had been living had four other children and was of subnormal intelligence. D stated that he had told her to take the child to the doctor, but she had not done so because she was afraid that the child would be taken into care.

The defendant was charged with manslaughter and wilful neglect contrary to s.1(1) of the Children and Young Persons Act, 1933. Held: Phillimore LJ was of the opinion that there needs to be a higher degree of culpability or blameworthiness for crimes committed through omission, than for crimes where there has been a positive act. (1) D ought to have realised the possible consequences of his failure to call a doctor; the sole question was whether his failure to do so was (a) deliberate, and (b) the cause of the childs unnecessary suffering or injury to health; (2) A clear distinction was to be drawn in relation to an act of commission and an act of omission; mere neglect, even though deliberate, which caused injury to a childs health and resulted in its death, did not necessarily constitute manslaughter where accused had failed to foresee the consequences of his neglect. Guilty of wilful neglect, not guilty of manslaughter the mental element of the offence had not been established.

3. State of Affairs Defendant may have committed a status offence. There may be neither an act nor omission. These crimes are defined not in the sense of the defendant doing a positive act but consisting in the defendant being found, being in possession or being in charge etc. Duck v Peacock [1949] 1 All ER 318 The defendant was charged with the offence of being drunk in charge of a vehicle. At the time of his arrest he was sleeping in the car having been out for the evening drinking. The Magistrate did not impose a disqualification but on a case stated appeal, a disqualification was ordered. Lord Goddard CJ: 'This is a question, not of driving, but of being in charge of a car. If what is suggested here were a special reason, it would mean that a man who had taken too much to drink so

ELEMENTS OF A CRIME ACTUS REUS STUDY GUIDE 3 that he was unfit to manage the car or be in charge of it could escape the penalty of disqualification merely by stopping and going to sleep in the car. The court is not going to give any countenance to such a reason as that. In my opinion, on the facts found by the magistrate there was no ground for saying that any special reason existed for not imposing the disqualification which Parliament has decreed shall otherwise be imposed. Therefore, this case must be remitted to the magistrate with intimation that we think he was wrong in law, and the respondent must be disqualified for the statutory period. R v Larsonneur (1993) 24 Cr App R 74 The defendant was a French national who had entered the UK lawfully, but was given only limited permission to remain in the country. At the end of that period the defendant left England, not to return to France, but to travel to the Irish Free State. The Irish authorities made a deportation order against her, and she was forcibly removed from Ireland and returned to the UK. On arrival in England the defendant was charged under the Aliens Order 1920, with "being found" in the UK whilst not having permission to enter the country. The defendant was convicted, and appealed on the basis that her return to the UK had not been of her own free will, in that she had been forcibly taken to England by the immigration authorities. The Court of Appeal dismissed her appeal on the simple basis that the prosecution had proved the facts necessary for a conviction. R v Martindale [1986] 3 All ER 25, CA A man D was searched by police officers, and a small quantity of cannabis resin was found in his wallet. D said he had been given the drug two years earlier in Canada and had forgotten he had it, but was convicted of possessing a controlled drug. Refusing his application for leave to appeal, the Court of Appeal said D had known the nature of the substance when he first put it in his wallet, and consequently remained in his possession even though he might have forgotten its existence. Sweet v Parsley [1969] 1 All ER 347 [Statutory interpretation presumption of mens rea in criminal offences] Lord Diplock; The courts will not easily infer an intention of Parliament to create offences for which an honest and reasonable mistake was no excuse. a general principle of construction of any enactment, which creates a criminal offence [is] that, they are to be read as subject to the implication that a necessary element in the offence is the absence of a belief held honestly and on reasonable grounds in the existence of facts which, if true, would make the act innocent.