Actus reus
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The actus reus — sometimes called the external elements of a crime — is the Latin term for the "guilty act" which, when proved beyond a reasonable doubt in combination with the mens rea, i.e. the "guilty mind", produces criminal liability in common law-based criminal law jurisdictions such as the United States, Australia, Canada, and the United Kingdom.
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Concepts
The terms actus reus and mens rea are derived from the principle stated by Edward Coke, namely, actus non facit reum nisi mens sit rea,1 which means: "an act does not make a person guilty unless (their) mind is also guilty", i.e. the general test is one that requires proof of fault, culpability or blameworthiness both in behaviour and mind. In this respect, the role of automatism is highly relevant in providing a positive explanation of the need to demonstrate the voluntariness of the behaviour for it to found liability. Once the actus reus has been established in a conventional offence, there must be a concurrence of both actus reus and mens rea to justify a conviction. Most legislatures also create so-called strict liability offences, which criminalise the behaviour without the need to prove a mens rea. The majority of these offences are either quasi-criminal or relatively low fault instances of behaviour, but liability may still be negated if automatism is present.
The actus reus of a crime generally falls within one of three classes, the first two being subject to a requirement of causation. The definition of each offence, whether common law or statutory, will always include the factual components necessary to constitute the actus reus. Some of these facts will be:
- Contextual, i.e. describing the time or general circumstances during which the key components were allegedly committed, e.g. that a vehicle was driven at night with defective lights or that injuries were caused while resisting lawful arrest;
- The key elements considered sufficiently antisocial that they should be proscribed, e.g. driving a vehicle dangerously. This will usually be based on one or more verbs which describe what the accused must have done.
- Consequential, i.e. describing the result or outcome of the verb(s), e.g. that a victim was injured or suffered loss in some material way.
Act
For both common law and statutory offences, establishing the detailed list of elements necessary to constitute the offence and their scope is a matter of interpretation which may require the courts to review and revise its precedents to ensure that the current interpretations match the current needs. For example, if an offence uses a verb such as "inflict" or "enter", it is for the courts to lay down the factors by which to distinguish the forms of action that might satisfy the requirement. Burglary requires "entry as a trespasser" so if the accused cut a hole in a window and introduced a fishing rod into the room to catch jewellery, would this be an entry? Equally, if a surgeon performs a lifesaving operation knowing that the accused did not consent, did he or she inflict injury by cutting open the patient as victim with a knife? At times, these decisions will have profound moral and practical implications for a society, with the rulings of judges and the findings of juries reflecting prevailing attitudes on issues as controversial as euthanasia and assisted suicide, sexual relationships, and the various forms of business activities that should or should not be crimes. The problem is that, in effect, the courts may retrospectively criminalise behaviour. If there are justifications for this outcome, they follow the argument that a person skating on thin ice can hardly complain if he or she falls through. It is the function of the courts to act to protect the rights of victims and the needs of society at large, and if this means that courts have an inherent jurisdiction to create new crimes by reinterpreting the old, that is probably a price worth paying so long as the power is used sparingly.
Taking a more everyday example, most legislatures create offences which regulate road traffic. Although humans and the words used to require a test of whether particular driving was or was not dangerous have remained remain relatively unchanging, technology has steadily evolved. Many cars are now fitted with sophisticated computerised systems to help control the vehicle while braking and so reduce the risk of skidding. If a car does skid and injures a pedestrian because, in all the circumstances, it was travelling at an excessive speed, should there be a variable test of dangerousness depending on whether the particular car was fitted with one or more of the additional safety devices? The difficulty is that the speed at which it would be dangerous to drive an unmodified car might be entirely safe in the same road conditions in a car with the relevant devices installed. The answer is that each court will make a decision based on the particular set of facts before it but will always require a certain minimum level of skill from the driver. Hence, an inexperienced driver cannot use the lack of skill as an excuse. Conversely, whether a person with vast experience as an international rally driver should show a greater than average level of skill in ordinary driving conditions is usually only a matter to be considered in sentencing.
Omission
In the criminal law, at common law, there was no general duty of care owed to fellow citizens. The traditional view was encapsulated in the example of watching a person drown in shallow water and making no rescue effort, where commentators borrowed the line, "Thou shalt not kill but needst not strive, officiously, to keep another alive." (Arthur Hugh Clough (1819-1861)) in support of the proposition that the failure to act does not attract criminal liability. Nevertheless, such failures might be morally indefensible and so both legislatures and the courts have imposed liability when the failure to act is sufficiently blameworthy to justify criminalisation. Some statutes therefore explicitly state that the actus reus consists of any relevant "act or omission", or use a word that may include both. Hence, the word "cause" may be both positive in the sense that the accused proactively injured the victim and negative in that the accused intentionally failed to act knowing that this failure would cause the relevant injury. In the courts, the trend has been to use objective tests to determine whether, in circumstances where there would have been no risk to the accused's health or well-being, the accused should have taken action to prevent a foreseeable injury being sustained by a particular victim or one from a class of potential victims. So, returning to the drowning example, the accused would be liable if the victim was a child in a pool with a water depth of six inches, or there was a floatation device nearby that could easily be thrown to the victim, or the accused was carrying a mobile phone that could be used to summon help. However, the law will never penalise someone for not jumping into a raging torrent of water, i.e. the law does not require the potential saver to risk drowning even though the individual might be a lifeguard paid to patrol the given beach, river or pool. No matter what the terms of employment, an employee can never be required to do more than what is reasonable in all the circumstances.
State of affairs
A number of offences are defined as a situation or context, e.g. "being found within enclosed premises", "being drunk in charge of a motor vehicle", etc. These are usually strict liability and a conviction could be sustained even though an accused did not act in a wholly voluntary manner. Hence, if a person fell asleep in a quiet corner of a library and was locked in by inadvertent staff, the offence would be committed, but the relatively low level of fault could be reflected in the sentence.
References
1 Coke's Institutes, Part III (1797 edition) chapter 1, folio 10.
