Criminal Law: Norman Baird Julia Fionda Mary Luckham

Criminal law
Norman Baird
Julia Fionda
Mary Luckham
2007
LLB 2650010
Diploma in Law 2690010
BSc Accounting with Law/Law with Accounting 2770101
BSc Management with Law/Law with Management 2770101
page University of London External Programme
This subject guide was prepared for the University of London External Programme by:
u Mary Luckham, Assistant Director, University of London Laws Programme
u Norman Baird, Editor, Consilio (www.spr-consilio.com)
u Dr Julia Fionda, Deputy Head of School (Education), School of Law, University of
Southampton.
Mary Luckham was responsible for Chapters 1–6, 9–10 and 18; Norman Baird for Chapters 7–8
and 14–15; and Julia Fionda for Chapters 11–13 and 16–17.
This is one of a series of subject guides published by the University. We regret that owing
to pressure of work the authors are unable to enter into any correspondence relating to,
or arising from, the guide. If you have any comments on this subject guide, favourable or
unfavourable, please use the form at the back of this guide.
Publications Office
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Criminal law page
Contents
1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2 The elements of an offence . . . . . . . . . . . . . . . . . . . . . . . . 15
3 Actus reus: automatism . . . . . . . . . . . . . . . . . . . . . . . . . . 23
4 Actus reus: omissions . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
5 Actus reus: consequences . . . . . . . . . . . . . . . . . . . . . . . . 47
6 Mens rea . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
7 Unlawful homicide: murder and manslaughter . . . . . . . . . . . . . . 81
8 Voluntary manslaughter – the defences of provocation and
diminished responsibility . . . . . . . . . . . . . . . . . . . . . . . . . 99
9 Simple non-fatal offences against the person . . . . . . . . . . . . . . 119
10 Aggravated non-fatal offences against the person . . . . . . . . . . . . 135
11 Sexual offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153
12 Defences 1 – Failure of proof and justificatory defences . . . . . . . . . 177
13 Defences 2 – Excusatory and mental disorder defences . . . . . . . . . 193
14 Inchoate offences . . . . . . . . . . . . . . . . . . . . . . . . . . . 207
15 Parties to crime . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225
16 Offences against property 1 – Theft and fraud . . . . . . . . . . . . . . 241
17 Offences against property 2 – Robbery, burglary and blackmail . . . . . 261
18 Criminal damage . . . . . . . . . . . . . . . . . . . . . . . . . . . . 273
Feedback to activities . . . . . . . . . . . . . . . . . . . . . . . . . . 289

1 Introduction
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
1.1 Studying criminal law . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1.2 Subject materials and online databases . . . . . . . . . . . . . . . . . . 9
1.3 The examination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Introduction
This subject guide, together with its study pack, is designed to help you to study the
criminal law of England and Wales. Although it is not intended that this guide should
replace textbook and other reading, unlike your textbooks and other materials, its content
reflects the University of London criminal law syllabus. The syllabus is set out in the student
handbook which you should have received. Alternatively, go to http://www.londonexternal.
ac.uk/current_students/general_resources/handbooks/laws_llb.shtml for a digital copy.
Each chapter of this guide will highlight the most important aspects of the topic and give
guidance as to essential reading. Remember, though, that this guide is not exhaustive and
cannot replace the reading of cases, textbooks and other materials.
Within each chapter you will find activities designed to test your understanding of the
topic. There will be feedback for most of these activities so that you can ascertain whether
you have a correct understanding of the topic. Many of these activities will be based on
material contained in the study pack or available through the Online Library at http://www.
external.shl.lon.ac.uk/?id=law.
There are also self-reflection points and sample examination questions with advice For more material on self-
on how you would answer such questions. There is no feedback for the self-reflection reflection and activities, see
points as these are issues you are expected to give some thought to, over a period. the appropriate sections
Similarly, there is no feedback for the self-assessment questions as these questions are of the Learning skills for law
designed to be easily answerable if you have read the appropriate section of the chapter guide.
and the essential reading. Feedback is supplied for the ‘activities’ as these questions require
more analysis and application of knowledge.
At the end of each chapter there is an opportunity for you to reflect on and review your
understanding of the issues contained in that chapter. You are strongly advised to carry out
this review and to go over any points which you still feel unsure about before proceeding
to the next chapter.
Learning outcomes
When you have completed this chapter, you should be able to:
u begin your study of criminal law by approaching each topic in a systematic way
u understand how the various elements in each chapter of the subject guide are designed
to help you with your understanding of the principles outlined in that chapter
u carry out basic legal research in the Online Library.
Criminal law 1 Introduction page
1.1 Studying criminal law

The first thing to understand is that you are studying substantive criminal law and not rules
of evidence and procedure which, although relevant in a criminal trial, are not part of this
course.
Criminal law governs relationships between the individual and the state. If a person breach-
es a criminal law rule this is viewed as being much more serious than a breach of the civil
law which governs relationships between individuals. Where there has been a breach of
the criminal law, the state will intervene and bring a prosecution in a criminal court. If the
defendant is found guilty of the crime then that defendant will be punished by the state.
Activity 1.1
Read Williams, G, Textbook of criminal law, pp. 36–41 in your study pack and consider the
following:
1 What is the difference between the two phrases: ‘wrongdoing is a sufficient condition of Go to your study pack and
punishment’ and ‘wrongdoing is a necessary condition of punishment’? read Williams, G, Textbook of
2 Who said: ‘All punishment is mischief. All punishment in itself is evil. It ought only to be criminal law, pp. 36–41.
admitted in as far as it promises to exclude some greater evil’?
3 On which theory, according to Glanville Williams, do the courts act in sentencing con-
victed offenders: the retributive or the utilitarian?
There is not feedback to this activity, as you should be able to find the answers in the
Glanville Williams text.
Criminal law can be found in a mixture of common law and statutory sources and it is a
complex area which is constantly developing (see your Common law reasoning and institu-
tions subject guide). You must be able to adopt a critical and analytical approach to the
law and be able to apply your knowledge to factual situations. You will only be able to do
this if you read – and re-read – ensuring you understand what you have read – the relevant
chapters in this guide and the textbook, and any cases or articles to which you are referred.
The more you read around the subject, the better you will understand the principles which
underpin the law. Reading a judgment from the Court of Appeal or House of Lords – and oc-
casionally the Privy Council or the Divisional Court of the Queen’s Bench – on any particular
topic is worth the effort as it is one of the best ways of gaining an understanding of the
rules as they relate to that topic.
Most students find criminal law intrinsically interesting and many of you will have a general
familiarity with some aspects of the subject. This familiarity is often generated by excit-
ing journalism in the newspapers or on the television which tends to give a misleading
impression of the rules of criminal law. The headline: ‘He got away with murder because of
a loophole in the law!’ does not provide any useful information about the rules of criminal
law and how they were applied to the facts of that case. All it does is tell us that ‘he’ was
found not guilty of murder; it certainly does not tell us why and it is pointless speculating
as there could be any one or more of a variety of sensible legal reasons.
Although the rules of criminal procedure do not form part of this course, some basic
understanding of the trial procedure will help with your understanding as a whole. Most
textbooks contain a certain amount of information as to procedure in their introductory
chapters and it is worthwhile taking the time to read them.
Although most criminal trials begin and end in magistrates’ courts, the cases you
will be considering will usually be appeals to the Court of Appeal (Criminal Division) from
the Crown Court or further appeals from the Court of Appeal (Criminal Division) on points
of law of general public importance to the House of Lords.† †
For rules on judicial precedent
see your Common law reasoning
A trial in the Crown Court is held before a judge and a jury. (For more on juries see Studying
and institutions subject guide
English law with the University of London).
and for an explanation of appeals
The Crown Court tries defendants who have been charged with serious criminal offences by way of case stated from
(such as murder, manslaughter, rape and serious non-fatal offences against the person and magistrates’ courts and the role
offences against property) or with offences triable either way where there has been an of magistrates, see Chapter 2 of
election to the Crown Court. the guide Studying English law
with the University of London
which is also supplied to you.
Note: Throughout this guide the defendant will normally be known as ‘the defendant’ (or
‘D’), and the prosecution as ‘the prosecution’. You will also, however, see references to ‘D’
and ‘P’ especially in Chapter 14: ‘Inchoate offences’ and Chapter 15: ‘Parties to crime’. In
these chapters, cases concerning multiple defendants are generally being examined and it
is expedient to refer to D1, D2 etc. Similarly ‘the victim’ of a criminal offence will frequently
be referred to as ‘V’.
The burden of proof is on the prosecution to prove the defendant’s guilt beyond reason-
able doubt.
If it fails to discharge this burden on any element of the offence the defendant must be
acquitted.
Woolmington v DPP [1935] All ER Rep 1

Throughout the web of English criminal law one golden thread is always to be seen – that
it is the duty of the prosecution to prove the prisoner’s guilt…If, at the end of and on the
whole of the case, there is a reasonable doubt, created by the evidence given by either the
prosecution or the prisoner, as to [the prisoner’s guilt] the prosecution has not made out
the case and the prisoner is entitled to an acquittal. (Lord Sankey)
In some exceptional cases, the defendant does have the burden of proving a defence, e.g.
the common law defence of insanity or a statutory defence, such as the defence of dimin-
ished responsibility, where the statute expressly provides for this. It was held in R v Lambert,
R v Ali and R v Jordan House of Lords [2001] All ER (D) 69 (Jul) that this does not breach Article
6 of the European Convention on Human Rights – the right to a fair trial.
It is important that you remember that the prosecution must prove every element of an
offence beyond reasonable doubt. In those exceptional instances (see above) where the
defendant has the burden of proving a defence he need only do so on balance of probabili-
ties – the civil burden.
At the end of a case in the Crown Court – both the prosecution and the defendant having
produced their evidence – the judge will sum up to the jury. In addition to summing up on
the facts and the evidence produced during the trial, the judge will direct the jury on the
law as it is to be applied to the facts. The jury will then make its decision. Depending on
whether they find the defendant guilty or not guilty of the offence charged, the judge will
pass sentence or discharge the defendant.
There are rights of appeal to the Court of Appeal against conviction and sentence. The
appeals with which we are concerned are appeals by the defendant against conviction
where the defendant argues that the trial judge misdirected the jury on the law and that
his or her conviction is therefore wrongful. It then falls to the Court of Appeal to determine
whether or not the trial judge’s interpretation of the law was correct. It if finds that it was,
it will uphold the conviction, but if it finds that the judge did misdirect the jury it can quash
the conviction unless it feels that the misdirection was not such as to render the conviction
unsafe. Either the prosecution or the defence can appeal against the Court of Appeal’s deci-
sion to the House of Lords provided it is certified that the appeal concerns a point of law of
general public importance.
Of course it may well be that the trial judge in the Crown Court directed the jury on the law
in such a way that they acquit the defendant and the prosecution is of the opinion that the
jury was misdirected. Here the prosecution may appeal provided it gets the leave of the
Attorney General. On appeal the defendant will not be named in the case; the case will be
known as an Attorney General’s reference. Therefore if the case was originally called R v
Jones [2006] and the prosecution appeal is the sixth such appeal in 2006, the case will be
known as Attorney General’s reference (No. 6 of 2006). If the Court of Appeal agrees with the
prosecution that the trial judge misdirected the jury, this will not affect the defendant’s
acquittal but trial judges in future will have to direct juries on that point according to the
determination of the Court of Appeal. Therefore the decision of the Court of Appeal will
have an impact on future cases.
Criminal law 1 Introduction page
1.2 Subject materials and online databases

As part of your study of criminal law you are required to read the textbook Smith and
Hogan: Criminal law and a criminal law casebook of your choice. When deciding which
casebook to buy – and there are a number on the market – ensure that you obtain the most
up to date edition available. Aspects of criminal law can sometimes develop rapidly and
an out-of-date textbook or casebook can be dangerously misleading. You do not need to
purchase the textbook as the latest edition will be supplied in the box of materials you
receive from the University of London. You will find guidance in each chapter of this guide
as to which pages of the textbook you should read for any particular topic.
You are also required to read the materials in the study pack provided with this guide.
Again, if you follow the chapters in the guide you will be referred to materials in the study
pack as and when appropriate.
Additional recommended reading Reading and essential reading

In addition to reading the textbook with which University students in England often describe themselves as
you are supplied, and the essential reading to ‘reading for a degree’.
which you will be referred as you work through Of course they attend lectures, go to classes and tutorials,
this guide, you will find that the more additional and take part in all sorts of other study activities: but reading
reading you do the better you will understand the is absolutely central.
subject. It really is worth taking the extra time to
Reading:
do this.
 increases your knowledge
The Online Library (see below) contains a wealth  widens your understanding
of materials to support and help you with your  strengthens your English language skills.
studies. It is essential that you learn to find your In the University of London Law subject guides we give you
way around the databases. You can begin to do a certain amount of essential reading. ‘Essential’ means that
this by completing the online research exercises you must read these items.
(see below) after which you will be well placed to
 For full advice on how to read academic texts, go to the
search for cases and articles on the topics you are
‘Reading’ section of your Learning skills for law guide.
studying.
You might find it helpful from time to time to read a chapter from a textbook other than
the one with which you have been supplied, either because you are having difficulties with
a particular area of law and want to find out how another writer approaches the topic or,
even if you are not having particular difficulties with the area of law, you might be inter-
ested in considering a different ‘slant’ on the subject.
Students often find the following books to be particularly helpful:

u Simester, A.P. and G.R. Sullivan Criminal law: theory and doctrine. (Oxford: Hart Publishing)
second edition [ISBN 1901362604].
u Ashworth, A. Principles of criminal law. (Oxford: Oxford University Press, 2006) fifth edition
[ISBN 0199281149].
u Clarkson, C.M.V. and H. Keating Criminal law: texts and materials. (London: Sweet & Maxwell,
2006) sixth edition [ISBN 0421947802].
You should be familiar with some of the provisions of the draft Criminal Code which
is referred to in this guide and the textbook. Note, however, that it has not yet been
implemented and therefore does not represent the law. Any references to the draft Code
are for interest and to help to develop your ability to analyse key points of law. For more
information on the draft Code we suggest that you visit the Law Commission’s web site at
http://www.lawcom.gov.uk/codification.htm.† †
Note that the Law Commission
is a statutory independent body
You will also find it useful to refer regularly to journals which specialise in criminal law. The
created by the Law Commission
most useful and topical journal is the Criminal law review. Other useful journals that occa-
Act 1965 to keep the law under
sionally consider issues of criminal law include the Modern law review, and the Law quarterly
review and to recommend
review. You will find all of these journals in the Online Library.
reform where it is needed.
A very useful online law magazine specifically aimed at law students is Consilio. In addition
to articles on law subjects you can check its web site for any new cases in your subject. You
will find it at www.spr-consilio.com.
Another useful web site for legal resources is Delia Venables. You will find this web site at
http://www.venables.co.uk/.
page 10 University of London External Programme
A word of warning Although there are many useful free legal resources on the world wide
web, be careful about information you retrieve from these sites as it may not always be ac-
curate. You have access to a wealth of materials in the University of London’s Online Library
and will know that the materials you download from that site and other sites to which you
are referred in this guide and in the virtual learning environment (see below) will be help-
ful to your studies.
In addition to the hard copy materials provided for you, we are now providing a number of
online resources to further help you with your studies. You will find most of them on the
University of London web site at www.londonexternal.ac.uk.
Before you start your studies, if you have not already done so, go to http://www.london
external.ac.uk/current_students/programme_resources/laws/exercises/index.shtml and
try the pre-course exercises which have been devised as a ‘taster’ to encourage you to
consider the type of skills you will be expected to develop as you go through the laws
programme. You do not need a password to access these.
As we are aware that many of you do not have access to a local law library we have for some
years provided you with an Online Library at http://www.external.shl.lon.ac.uk/?id=law.
The databases available through this facility Using the online library
contain everything you would find in a well You must get used to using the extensive facilities in the
stocked law library and we would therefore University’s online library, which is open 24 hours a day and
strongly encourage you to use it. You will need to free to use (apart from the cost of your telephone service).
register for your Athens user name and password The service available on http://www.external.shl.lon.ac.uk/
which you can do when you use the URL given ?id=law is perhaps the best in the world.
above. There are also many free databases for
It contains huge resources on law:
which you do not need a password.
 cases (law reports)
You may at first find it a little daunting but you  statutes
should take the time to find your way around the  articles and reports.
password protected databases as some of the You will need your Athens password to access many of these.
activities in this guide require you to use them.
Plus there are extensive free access files, such as British Media
To help you do this we have provided some On-line, where you can read the main UK newspapers and TV
online research exercises which you will find at new service files.
http://www.londonexternal.ac.uk/current_stu- For more information, see the ‘Library’ section of your
dents/programme_resources/laws/research_exe/ Learning skills for law guide.
index.shtml.
Although you will not need a password to access the information about these exercises, as
many of them are centred around the password protected databases provided through the
University’s Online Library, you will need your Athens user name and password to actually
do them. These exercises will take you through some of the databases in order to find cases
and articles, and feedback is provided at each step of the way in case you get lost.
Once you have embarked on your studies and have covered some of the topics you will find
it useful to consolidate your learning by attempting the computer marked assessments
we have provided for you. There are three assessments for each Intermediate/Diploma in
Laws subject and from November 2006 we will begin to provide assessments for the Part
1 subjects. Each assessment is in three parts: knowledge, comprehension and application,
and extensive feedback is provided for each question. You will find advice on taking these
assessments at http://www.londonexternal.ac.uk/current_students/programme_resources/
laws/cma/index.shtml. You will also find them to be a useful revision tool before you take
your examinations.
From September 2006 we will be providing an online virtual learning environment (VLE) for
students taking any of the Intermediate/Diploma in Laws subjects. To access the VLE from
September go to the Laws web page at http://www.londonexternal.ac.uk/current_students/
programme_resources/laws/index.shtml. Click on ‘VLE resources’ which you will find at the
bottom of the column on the left hand side of the page and that will take you to the VLE
Gateway where you can log in to the VLE. You will have been provided with a user name
and password to enable you to do so. You are strongly advised to bookmark the URL to the
gateway to your ‘favourites’ as it will contain a number of resources which you are advised
to use on a regular basis.
Criminal law 1 Introduction page 11
All of the online resources listed above will be available on or through the VLE although
they will, for some time, remain available through the URLs as shown.
In addition to this each subject will have its own ‘page’ which will be updated regularly by a
University of London academic. This page will also contain links to:
u the complete subject guide
u the study pack
u recent developments
u a direct link to the Online Library
u a direct link to the University of London web site
u links to other useful sites
u a discussion board where you can post your comments and communicate with other
University of London students anywhere in the world
u examination papers and examiners’ reports
u ‘student profiles’ where you can choose to provide details about yourself and see other
students’ profiles where they have provided information.
Important notices and dates will also be posted to the VLE. You should therefore check it
regularly.
1.3 The examination

At the end of the course you will need to pass the examination in order to progress.
Provided you have worked systematically through this guide, and completed the necessary
readings and activities you should have a good understanding of the subject which will
stand you in good stead for the criminal law examination.
There are, essentially, two types of examination question – the essay Examinations
question and the problem question. You will find examples of both types Examinations are the culmination of
of question in this guide together with advice on answering such your study experience. You need to:
questions but here is some general advice.
 Understand what is required (and
Statute books when).
You should also obtain a statute book. Statute books are updated regu-  Practise the skills required.
larly: make sure that you obtain the latest copy. Under the Regulations  Organise revision.
you are allowed to take one of the following statute books into the
 For more details see the examinations
examination room:
section of your Learning skills for law.
u Blackstone’s statutes on criminal law
u Sweet and Maxwell’s statute series: criminal law.
Information about the statute books and other materials that you are permitted to use in
the examination is printed in the current Regulations, to which you should refer. You will
find a link to the handbook on the VLE and on the Laws web site. Please note that you are
allowed to underline or highlight text in these documents – but you are not allowed to
write notes, etc. on them.
The Regulations for the LLB state:

Students may underline and/or highlight passages with a coloured pen in the materials,
but all other forms of personal annotation on statutes and other materials permitted to be
taken into the examination room are strictly forbidden. (Degree Regulation 14.3)
1.3.1 Essay questions

Essay questions often consist of a quote on a particular issue within an area of law followed
by such words as ‘Explain and discuss’ or ‘Discuss’ or ‘To what extent do you agree?’.
This type of question requires you to engage in an academic discussion focused on the is-
sue raised in the quote. Analysis of the issue rather than a descriptive treatise of everything
you know about the area of law involved is what is required here.
Aim to structure your answer so that it includes:
An introduction Here you should define your terms and set out the ambit of your essay
stating what it is you intend to discuss and how it relates to the question.
A discussion of the issues raised by the question Consider arguments which support
the issue raised and also arguments which do not. Do not use this as an opportunity to
demonstrate, at length, your personal opinions. Use cases to support any propositions you
make but use them carefully and thoughtfully. Your essay should not resemble a ‘shopping
list’ of cases. Relate what you say to the issue raised in the question.
Conclusion Deal directly with the issue raised and conclude your discussion. It is permis-
sible to state which of the arguments you consider to be the more persuasive one and why.
Provided your conclusion is a logical expression of some of the arguments set out in your
essay, supported by authorities, it will be a valid conclusion.
In Chapter 6 of this guide you will find a case Answering essay and problem questions
reading exercise and at the end of that chapter an Your exam will consist of a mixture of essay and problem
essay on the issues considered in that case with questions. It is essential to practise producing these, and this
feedback on how you should approach such a subject guide will give you many opportunities.
question.
For more detail see the sections on ‘Writing essays’ and
‘Answering problem questions’ in Learning skills for law.
Criminal law 1 Introduction page 13
1.3.2 Problem questions

These are more practical and will involve you in giving ‘legal advice’ in relation to a particu-
lar set of facts. These questions require a different approach to that for essays. Frequently, a
long problem can be divided into a series of smaller problems. It is important that you deal
with each issue individually.
Offence
You should first of all consider what possible offence(s) the facts of the question indicate in
relation to the defendant(s). It is of the utmost importance that you deal with each offence/
defendant individually. Do not begin your discussion of a second offence/defendant until
you have completed your discussion of the first. Do not begin with a conclusion, e.g. ‘Fred
is guilty of murder’. If you consider this to be a possibility in the light of the facts disclosed
in the question, then begin your answer by saying, for example, ‘Fred may be charged with
murder’ or ‘I will begin by discussing Fred’s possible criminal liability for murder’ and then
deal with the elements of the offence, relating your answer to the facts of the question.
Generally a definitive answer is not required for a problem question. There will usually be
insufficient facts to enable you to do that. So, for example, in a question where you are
considering the offence of, say, murder the facts upon which liability will hinge may have
been drafted ambiguously. Conclude your answer to that part of the question by using ‘if’
and ‘then’, i.e. ‘If the jury is satisfied that the prosecution has proved beyond reasonable
doubt that Fred committed the actus reus of murder with the appropriate mens rea (you
will already have discussed these elements of the offence) then they may – subject to any
defence he might raise – find him guilty of murder.
Defence
You should consider whether, on the facts outlined in the question, there are any defences
which may be available. Do not hypothesise. If the facts do not indicate the possibility of a
defence do not discuss defences. Where the facts do indicate a defence, do not begin your
answer with a discussion of that defence/those defences. Discuss the offence first and only
when you have completed that part of the answer should you go on to discuss any possible
defence.
Summary
Most students find the study of criminal law challenging and interesting. It is an intellectu-
ally demanding but very rewarding subject. This subject guide covers the law of England
and Wales which may sometimes be very different from the legal system under which you
live but we hope you will enjoy the challenge of this subject.
Good luck with your studies.
Mary Luckham, Norman Baird, Julia Fionda, June 2006.

2 The elements of an offence
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
2.1 General analysis of criminal offences . . . . . . . . . . . . . . . . . . . 17
2.2 Limitations on the value of the Latin terms actus reus and mens rea . . . . 18
2.3 Proof of the ingredients of an offence . . . . . . . . . . . . . . . . . . . 19
2.4 Lawful excuse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Introduction
This chapter considers, in general terms, the elements of an offence which the prosecution
must establish, beyond reasonable doubt, before a defendant can be convicted.
The elements of an offence are those external elements (actus reus) and the internal – or
mental – element of the offence (mens rea) which are contained in the definition of that
offence which will be found either at common law or in a statute. The offence of criminal
damage contrary to section 1(1) of the Criminal Damage Act 1971 is used to exemplify analy-
sis of the actus reus and the mens rea of a criminal offence.
The issue of lawful excuse is also considered in this chapter.
Chapters 3 to 6 examine the general principles of actus reus and mens rea in more detail.
Essential reading
¢ Smith and Hogan, Chapter 4: ‘The elements of a crime: actus reus’, pp.34–44.
Learning outcomes Learning outcomes: what are

By the end of this chapter and the relevant readings you should be these for?
able to: Every chapter in your subject guides con-
u find the definition of a criminal offence tains learning objectives and reminders of
learning objectives.
u demonstrate an understanding of the constituent elements of
that definition, i.e. actus reus and mens rea Like the other features of your subject
guides, they are there to help you.
u demonstrate an awareness of the limits of the terms ‘actus reus’
and ‘mens rea’ when used without further clarification See the section on ‘Using your subject
guides’ in your Learning skills for law guide.
u explain in relation to ‘lawful excuse’ the difficulties of distin-
guishing between the definitional elements of an offence and a defence.
Crininal law 2 The elements of an offence page 17
2.1 General analysis of criminal offences

Every criminal offence is made up of a number of elements, each of which must be proved
beyond reasonable doubt before a defendant can be convicted of the offence with which
he or she has been charged. A criminal offence might be a statutory offence, such as theft
contrary to section 1 of the Theft Act 1968, or it might be an offence at common law. Most
offences are now statutory but a few – including murder and manslaughter (see Chapters 7
and 8) – remain offences at common law.
The definition of every offence will be found either at common law or in a section of a
statute. It is the definition of an offence which contains its elements. It follows from this
that it is of the utmost importance that, as a student of criminal law, you make it a priority
to familiarise yourself with the definition of each offence on the syllabus at the outset of
your study of that particular offence. If you do not, you will find it extremely difficult – if
not impossible – properly to understand any analysis of the offence you read in a case, a
textbook or an article.
Traditionally criminal offences are analysed by reference Latin

to the actus reus and the mens rea. English law contains numerous words and phrases
The Latin maxim actus non facit reum, nisi mens sit rea – like mens rea and actus reus – in Latin. Latin was the
means that the act itself does not constitute guilt un- language of the ancient Roman Empire, but it was used
less it was done with a guilty mind. for hundreds of years afterwards in legal and official
documents. You will need to be familiar with a little bit
Actus reus This is the ‘external’ element of a crime of Latin.
– i.e. conduct, circumstances and, in the case of a result
See ‘Latin’ in your Learning skills for law guide.
crime, the consequences.
Mens rea This is the ‘internal’ element of a crime. It must be proved that at the time the
defendant was responsible for the actus reus of the offence with which he is charged, he
behaved with the state of mind relevant to that offence.
Where the offence is one which requires proof of mens rea, both elements (i.e. actus reus
and mens rea) must be proved in order to secure a conviction. Furthermore, it must be
proved that the mens rea coincided with the actus reus (see Chapter 6). Note that even if a
defendant committed the actus reus of the offence with the appropriate mens rea he or she
may be able to raise a defence which would negate any criminal liability.
Activity 2.1
Murder, a common law offence, is defined as ‘the unlawful killing of a human being with
malice aforethought’.† †
‘Malice aforethought’ means
The actus reus of this offence is therefore ‘the unlawful killing of a human being’ and the ‘intention to kill or intention to
mens rea is ‘malice aforethought’. On a charge of murder, therefore, the prosecution must cause grievous bodily harm’.
prove beyond reasonable doubt that the defendant unlawfully killed a living person and
at the time he or she carried out that killing either intending to kill or intending to cause
grievous bodily harm (Moloney [1985] AC 905).
a Find the definitions of the following offences:† †
Use the index and the list of
i Theft contrary to section 1(1) of the Theft Act 1968. statutes in Smith and Hogan.
ii The offence contrary to section 24 of the Offences Against the Person Act 1861.
iii Assault.
iv Battery. Activities
b What are the actus reus and You will find learning activities throughout your subject guides. Work through
mens rea of each of these the activities, because that will help you learn. Most people learn more by do-
offences? ing – in this case, doing means thinking and writing – than just by reading:
 The tasks in the activities will help you understand the topics.
 Doing them helps you remember what you have done.
 It gives you opportunities to think more widely about the subject.
Writing down your answers to the activities helps you improve your English
Language skills. In the Criminal law subject guide you will find feedback on the
activities at the end of the guide. Do not look at the feedback until you have
done the activities.
See ‘Learning activities’ in the Learning skills for law guide.
2.2 Limitations on the value of the Latin terms actus reus and mens rea
A word of warning. The terms ‘actus reus’ and ‘mens rea’ are terms of art† which, when used †
A ‘term of art’ is a technical term
on their own and without explanation, provide no more information than, for example, which has a special significance.
the terms ‘back’ and ‘front’ if used alone and out of context. If you said ‘It is at the back’ a
reasonable response might be: ‘What is at the back of what?’
Similarly if, having considered a scenario in which, say, A shot B killing him, you simply
said ‘The actus reus is established’, a reasonable response might be: ‘The actus reus of what
offence?’ You might then respond: ‘The actus reus of murder.’ Although this may be correct
it is still less than informative as you have not explained what the ingredients of the actus
reus of murder are and why the facts indicate that it was made out. Therefore it would be
correct to say that in order to establish the actus reus of murder, the prosecution must
prove that A unlawfully killed a human being (murder is considered in Chapters 7 and 8).
As long ago as 1889 in the case of Tolson (1889) 54 JP 4 Stephenson J expressed disquiet at
the use of the shorthand ‘mens rea’ as the mental elements of offences differ widely. In his
opinion it was not only likely to mislead but was actually misleading.† He said: †
Law is continually developing and
Mens rea means in the case of murder, malice aforethought; in the case of theft, an inten- changing and the elements of
tion to steal; in the case of rape, an intention to have forcible connexion with a woman, some of the offences Stephenson J
without her consent and in the case of receiving stolen goods, knowledge that the goods referred to are different today.
were stolen…It appears confusing to call so many dissimilar states of mind by one name. See Chapters 16 and 17 for theft
and handling stolen goods and
Lord Diplock criticised the term ‘actus reus’ in the case of Miller [1983] 2 AC 161 as being likely Chapter 11 for rape. The point that
to mislead: Stephenson J illustrates, however,
…since it suggests that some positive act on the part of the accused is needed to make remains a valid one.
him guilty of a crime and that a failure or omission to act is insufficient to give rise to
criminal liability…† †
For omissions see Chapter 4.
He went on to say:
It would…‘be conducive to clarity of analysis of the ingredients of a crime’…if we were to
avoid bad Latin and instead to think and speak…about the conduct of the accused and his
state of mind at the time of that conduct, instead of speaking of actus reus and mens rea.
Nevertheless, these are the conventional terms which will be used in all the criminal law
materials you are likely to read – including this subject guide. When you to use these terms
ensure that you use them appropriately. Please note that notwithstanding Lord Diplock’s
comment in Miller, in addition to the defendant’s conduct, the term actus reus includes the
relevant circumstances and, in some instances, the consequences.
For most of the offences with which we will be dealing in this subject guide, it will be nec-
essary for the prosecution to prove both the actus reus and the mens rea of the particular
offence. However, note that for some offences liability is strict which means that neither
the definition of the offence imports a requirement of mens rea as to at least one of the
elements of the actus reus nor has the offence been interpreted by the courts as requiring
proof of mens rea in respect of that element. See Chapter 6 of this guide.
Activity 2.2
a Where are the definitions of offences to be found?
b What is meant by the Latin maxim ‘actus non facit reum, nisi mens sit rea’?
c Why did Stephenson J in the case of Tolson express disquiet about the use of the short-
hand term ‘mens rea’?
d Why did Lord Diplock in the case of Miller criticise the use of the phrase ‘actus reus’?
e Read the article by Nigel Hanson in your study pack. Why did David Ibbetson, Go to your study pack and
Professor of Civil Law at Cambridge University, have reservations about modernising read ‘Language barrier’ by
legal language? Nigel Hansen.
2.3 Proof of the ingredients of an offence

The burden is on the prosecution to prove beyond reasonable doubt all of the
elements of an offence with which a defendant is charged (see Woolmington v DPP [1935]
AC 462). It follows therefore that, whether the offence is one of strict liability or one which
requires proof of mens rea, if all of the elements of the actus reus cannot be proved the
defendant cannot be criminally liable, however guilty his mind is.† †
Mens rea and strict liability
offences are considered in
One authority for this proposition is the case of Deller [1952] Cr App R 184.
Chapter 6.
The facts were that V, in the process of selling his car to D agreed to take D’s old car in part
exchange provided it was free from encumbrances.† D assured V that the car was free from †
Encumbrances: an encumbrance
encumbrances despite the fact that some time before this assertion, D had executed an is a financial claim against
agreement with another party, X, which purported to give X rights over his car. D knew this property which in this case
when he made the assertion to V. would have limited V’s rights
over D’s car.
D was charged and convicted with the offence of obtaining V’s car by false pretences con-
trary to section 32 of the Larceny Act 1916. (The equivalent offence today would be obtain-
ing property by deception contrary to section 15 of the Theft Act 1968: see Chapter 16.)
However, it transpired – for reasons which need not concern us – that D’s agreement with X
was not valid, which meant that X had no rights over D’s car. Therefore although D believed
that he was practising a deception on V when he asserted that his car was free from encum-
brances, in actual fact he was not. The Court of Criminal Appeal quashed his conviction as
there were no false pretences because: ‘…it may be quite accidentally and, strange as it
may sound, the appellant had told the truth.’ (Per Hilbery J at p.191.)
Even though obtaining by false pretences does not exist as an offence any more, the princi-
ple expounded in this case (i.e. that all the elements of an offence must be proved before a
person can be criminally liable) remains good law.
To further exemplify this proposition, consider section 1(1) of the Criminal Damage Act 1971,
which defines the offence of criminal damage as occurring where a person:
…without lawful excuse destroys or damages any property belonging to another intend-
ing to destroy or damage such property or being reckless as to whether any such property
would be destroyed or damaged…
It will be clear that the actus reus of this offence will be established where a person
‘destroys or damages any property belonging to another’ i.e. the external element of the
offence.† †
As to whether the requirement
‘without lawful excuse’ is an
If we analyse this external element further it will also be clear that the ‘conduct’ element of
element of the offence or a
the actus reus of criminal damage is any conduct which results in the damage to or destruc-
defence is discussed below.
tion of the property and this would include an omission to act.
The ‘circumstances’ element of the actus reus of criminal damage will be satisfied by proof
that what was destroyed or damaged was property which belonged to another and that
the damage or destruction was effected without a lawful excuse.
Criminal damage is a result crime and the ‘consequences’ element of the actus reus of
this offence will be satisfied by proof that the destruction or damage of the property was
caused by D’s conduct.
If all of these elements are proved by the prosecution (i.e. the jury is satisfied beyond rea-
sonable doubt), then the actus reus of criminal damage is established. However, although
proof of actus reus is a necessary precondition of conviction, where the offence is one
which requires proof of mens rea – as is criminal damage – proof of actus reus alone is not
sufficient to convict a defendant.
The prosecution also needs to establish that the defendant committed the actus reus of
the offence with the appropriate mens rea. If you return to the definition above you will
see that the mens rea is expressed as an intention to destroy or damage property or being
reckless as to whether any such property would be destroyed or damaged. Therefore the
prosecution would need to prove that the defendant either intentionally or recklessly
destroyed or damaged property belonging to another. The meaning of the terms intention
and recklessness are discussed later in this chapter.
Activity 2.3
a What mens rea needs to be proved on the part of a defendant who has been charged
with criminal damage contrary to section 1(1) of the Criminal Damage Act 1971?
b What is the conduct element of the offence of criminal damage contrary to section 1(1)
of the Criminal Damage Act 1971?
c Why was Deller’s conviction quashed by the Court of Criminal Appeal?
2.4 Lawful excuse

Before leaving the offence of criminal damage, the element ‘without lawful excuse’ needs
further clarification.
Although it could be expressed as an element of the actus reus of the offence, it could also
be said that if the defendant knew he or she had a lawful excuse then he or she neither
intended nor was reckless as to causing criminal damage. It follows that, under these
circumstances, the defendant would not have the mens rea for the offence. Similarly, even
if the defendant did not have a lawful excuse, but honestly believed that he or she did, then
that mistaken belief would negate any criminal liability. See Chapters 12–13. Consider now
the situation where the defendant did have a lawful excuse but at the time s/he destroyed
or damaged the property belonging to another was not aware of this fact.
Imagine that the defendant is lawfully in possession of an item of property which belongs to
V and the defendant deliberately destroys that property. If you consider the definition above
it will be clear that D is guilty of criminal damage. The actus reus and mens rea are established.
Now imagine that, before the defendant destroyed the property, V had emailed him
instructing him to destroy it. The email has reached D’s mailbox but D has not checked his
emails and therefore does not know of V’s instruction. Is D guilty of criminal damage?
If, as stated above, without lawful

excuse is an element of the offence of Lawful excuse: four possible situations
criminal damage, it could be argued that
as D has – albeit unknown to him –
a lawful excuse he cannot be guilty D had no D had lawful D had no D had lawful
of this offence. In order to convict D lawful excuse excuse lawful excuse, excuse, but
the prosecution must prove all of the but believed was not aware
elements of the offence with which D is that he did that he did
charged (see Deller on p.19).
However, it could be argued that rather than being an element of the offence itself, a lawful
excuse is, in fact, a defence. If this is the case, then on the basis of the decision in the case of
Dadson (1850) 2 Den 35 SHC 7, D may be found guilty of criminal damage.
Dadson was a policeman who was employed to guard a copse† from which wood †
Copse: a small area of woodland.
had been stolen. It was accepted in that case that it was lawful for a policeman to shoot at
an escaping felon. Stealing wood was not a felony unless a person had two previous convic-
tions for that offence. V, who had two previous convictions for stealing wood, stole wood
from the copse. He refused to stop when Dadson called him, so Dadson, not knowing of V’s
convictions, shot and wounded him. It was held that as Dadson did not know of the facts
which gave him a lawful excuse for shooting at V, he could not avail himself of the defence
and was therefore guilty of the offence.
See also Chapman [1988] 89 Cr App R 190 where Building your vocabulary
the Divisional Court of the Queen’s Bench In law texts you will frequently encounter English vocabulary
effectively upheld the case of Dadson in that it held with which you are unfamiliar (like ‘copse’, perhaps) and
that where a person was unaware of circumstanc- words in legal language. Some of these will be:
es which justified an arrest, it would not be
 long and a little complicated, like ‘appropriates’
possible to comply with section 28(3) of the Police
and Criminal Evidence Act 1984. It would follow  shorter but technical, like ‘felon’
that, if the arrest was unlawful, any force used to  words having both legal and ordinary meanings, like
effect that arrest would also be unlawful. ‘conviction’.
For a discussion of the cases of Deller and Dadson  For advice on building up your legal English and ordinary
see Smith and Hogan, pp.41–44. English vocabulary, see your Learning skills for law guide.
Activity 2.4
a Why was Dadson’s conviction upheld?
b Can the decisions in Deller and Dadson be reconciled?
Activity 2.5 Online research exercise †

Note: you must have your Athens
Find the definition of the offence of robbery contrary to section 8 of the Theft Act 1968 username and password to get
using Westlaw.† into Westlaw.
Reflect and review

Every ingredient of an offence must be proved Reflection
before a defendant may be found guilty of that We live in an age of reflection – which simply means thinking
offence. This is subject to the defendant having about – or contemplating – what we are doing in order to
a lawful excuse for his or her conduct. help ourselves do it better.
Look through the points listed below. Are you For more guidance on this, see the section on reflection in
ready to move on to the next chapter? your Learning skills for law guide.
Ready to move on = I am satisfied that I have sufficient understanding of the principles

outlined in this chapter to enable me to go on to the next chapter.
Need to revise first = There are one or two areas I am unsure about and need to revise
before I go on to the next chapter.
Need to study again = I found many or all of the principles outlined in this chapter very
difficult and need to go over them again before I move on.
Tick a box for each topic.

Ready to Need to Need to
move on revise first study again
Find the definition of a criminal offence. ¢ ¢ ¢
Understand the constituent elements of that

definition i.e. the actus reus and mens rea. ¢ ¢ ¢
Understand the limits of the terms actus reus and

mens rea when used without further clarification. ¢ ¢ ¢
Understand in relation to ‘lawful excuse’ the

difficulties of distinguishing between the definitional
elements of an offence and a defence. ¢ ¢ ¢
If you ticked ‘need to revise first’, which sections of the chapter are you going to revise?
Must Revision
revise done
2.1 General analysis of criminal offences ¢ ¢
2.2 Limits of the terms actus reus and mens rea ¢ ¢
2.3 Proof of the ingredients of an offence ¢ ¢
2.4 Lawful excuse ¢ ¢

3 Actus reus : automatism
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
3.1 Automatism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
3.2 Limits to the defence of automatism . . . . . . . . . . . . . . . . . . . 26
3.3 Prior fault . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Introduction
The actus reus of any offence will be found in the definition of that offence. It will include:
u prohibited conduct on the part of the defendant
u the existence of one or more specified circumstances
u and, in the case of a result crime, a particular consequence caused by D’s conduct.
This chapter will deal with automatism as it affects the conduct element of the actus reus
and Chapter 4 will deal with liability for omissions to act in relation to that element. Chapter
3 will also deal with the circumstances element of the actus reus and Chapter 4 will deal with
causation in relation to the consequences element of the actus reus of result crimes.
Learning outcomes
By the end of this chapter and the relevant readings you should be able to:
u explain the principles relating to automatism
u understand the distinction between insane and sane automatism
u understand the ramifications of that distinction
u explain the notion of prior fault.
Essential reading
¢ Smith and Hogan, Chapter 4 : ‘Elements of a crime: Actus reus’, pp.48–51.
Reading from your study pack:
¢ Extract from Jones, T. ‘Insanity, automatism and the burden of proof’: LQR 1995, 111 (Jul)
pp.475–6.
Criminal law 3 Actus Reus: automatism page 25
3.1 Automatism
Although the conduct element of the actus reus of an offence usually requires proof of a
positive act on the part of the defendant some offences can be committed by virtue of an
omission to act (see further Chapter 4).
Whether the prohibited conduct is an act or an omission, such conduct must be voluntary
conduct on the part of the defendant.
In the case of Woolmington v DPP [1935] AC 462 Viscount Sankey ruled that, subject to lim-
ited exceptions, the burden was on the prosecution to prove the defendant’s guilt beyond
reasonable doubt.
One of the points he emphasised in relation to the defendant’s conduct was that: ‘The
requirement that it should be a voluntary act is essential…in every criminal case.’
Some years later, Lord Denning in the case of Bratty v Attorney General for Northern Ireland
[1961] 3 All ER 523 HL said:
No act is punishable if it is done involuntarily: and an involuntary act in this context…means
an act which is done by the muscles without any control by the mind such as a spasm, a
reflex action or a convulsion; or an act done by a person who is not conscious of what he is
doing such as an act done whilst suffering from concussion or whilst sleepwalking…
It follows, therefore, that in order to attract criminal liability a defendant’s conduct must be
voluntary, that is, it must be a willed bodily movement (or lack of action where D is under
a duty to act). For example if D does not control his car and it hits something causing dam-
age, he will not be criminally liable if the reason he could not control the car was because,
for example, he was being attacked by a swarm of bees. Brake failure through no fault
of the defendant would equally give the driver no control over the situation (see Smith
and Hogan, p.51 and Burns v Bidder [1967] 2 QB 227). Similarly, if the same thing happened
because he had a heart attack or epileptic fit, his conduct is involuntary. Where a defendant
has no control over what he is doing he is said to be acting as an automaton.
Automatism is a plea by a defendant that his actions were not under the control of his
conscious mind, i.e. that his bodily movements were unwilled and involuntary.
Although generally pleaded as a ‘defence’ it will be dealt with here, as a successful plea of
automatism will negate the conduct element of the actus reus of any offence with which
the defendant is charged.
Automatism simpliciter (usually referred to as ‘sane’ automatism or simply ‘automatism’)

is a complete ‘defence’ as the defendant is deemed not to be in any way to blame for what
happened. It makes no difference whether the offence is one which requires mens rea or is
a strict liability offence as the conduct is deemed not to have been that of the defendant. It
follows that if the defendant’s conduct is involuntary there will equally not have been the
appropriate mens rea for the offence. Whatever the reasoning, no criminal liability attaches
to the defendant.
For a brief discussion as to whether the voluntariness of a defendant’s conduct should be

viewed as an element of the actus reus or the mens rea of an offence see Smith and Hogan,
pp.47–48.
3.2 Limits to the defence of automatism

There are, broadly, three ways in which the courts have limited the defence of automatism.
These are:
1 Where the defendant exercised some control.
2 Where the condition which gave rise to the automatism can be brought within the ambit
of the rules on insanity.
3 Where there was prior fault on the part of the defendant.
3.2.1 Where the defendant exercised some control

The first requirement necessary for this defence to succeed is that the defendant’s mind
was not controlling his limbs at the time of the offence. In the case of Bell [1984] Goff LJ gave
some examples of involuntary conduct for which no criminal liability may attach:
…a motorist…[who] has been attacked while driving by, for example by a swarm of bees or
a malevolent passenger, or because he has been affected by a sudden blinding pain, or be-
cause he has become suddenly unconscious by reason of a black-out, or because his vehicle
has suffered some failure, for example, through a blow-out or through the brakes failing.
See also Hill v Baxter [1958].
Should there be any control on the part of the defendant the defence of automatism will
not succeed (see Broome v Perkins [1987] (Div Ct); Attorney General’s reference (No. 2 of 1992)
[1993] CA).
Even where the defendant is in a trance-like state, this will not amount to automatism if his
movements appear to be purposive to any extent.
Consider the case of Isitt [1978] CA. This case concerned a defendant who was
involved in a road accident after which he returned to his van and drove off in a manner
which was ‘manifestly dangerous’. He was pursued by the police, finally escaping through
some fields. There was evidence at his trial for dangerous driving that he appeared to have
been drunk. He raised psychiatric evidence claiming that the original accident had caused
‘an hysterical fugue’ † leading to memory loss: his subconscious mind had taken over so †
Hysterical fugue, dissociative
that he did not appreciate what he was doing when he was driving. fugue or simply fugue, is a
mental disorder wherein the
He was convicted and his appeal against conviction was dismissed by the Court of Appeal
afflicted individual is prone to
which confirmed that although automatism was a defence to the offence of dangerous
taking unexpected trips in a state
driving an ‘hysterical fugue’, rendering a driver’s mind shut to moral inhibitions, was no
of unconsciousness such that he
defence. Just because his mind was not acting in top gear, that did not amount to automa-
is unable to recall where he has
tism. The driving was purposive. He had some control.
been, or how he ended up in a
The Draft Criminal Code (Law Com No. 177 Cl.33) includes within the definition of automa- particular place.
tism any movement which:
is a reflex, spasm or convulsion; or
occurs while he is in a condition…depriving him of effective control of the act.
This is less harsh than the present requirement of total deprivation of control but please
note that this Code has not, as yet, become law.
3.2.2 Where the condition which gave rise to the automatism can be
brought within the ambit of the rules on insanity
The defence of automatism has also been circumscribed by the rules on insanity.
Automatism resulting from a disease of the mind constitutes insane automatism.
A defendant will be deemed to have been suffering from insane automatism where
the condition arose from an internal factor and was therefore likely to recur. It need not be
a condition which has been suffered by the defendant for any length of time. Thus, there
are two types of automatism, insane automatism and sane automatism.† †
It is essential that you
understand the distinction
Two important practical ramifications flow from the distinction: the disposal of the
between these two types of
defendant and the burden of proof.
automatism.
Disposal of the defendant

Where the defendant is successful with the defence of sane automatism the verdict will be
one of ‘not guilty’ – a finding of which will result in an unqualified acquittal.
Where, however, the defendant is found to have been suffering from insane automatism
the verdict will be ‘not guilty by reason of insanity’. This is called the special verdict and
gives the judge powers of disposal which are not available where there has been an
unqualified acquittal.
Following a special verdict it is open to a judge to make a hospital order, imposing on the
defendant an indefinite stay in a psychiatric hospital. Before the passing of the Criminal
Procedure (Insanity and Unfitness to Plead) Act 1991 a hospital order was mandatory under
these circumstances but a judge now has other choices in respect of disposal. A hospital
order with or without a restriction in time is still an option but the alternatives now
available include a guardianship order, a supervision order or an absolute discharge. See
section 3 of the Criminal Procedure (Insanity and Fitness to Plead) Act 1991. There is an
exception where, without the defence, the offence would have been murder. Here, the
imposition of an indefinite stay in a psychiatric hospital remains mandatory.
These methods of disposal should not

be viewed as punishments: the special A successful plea of automatism
verdict is a verdict of not guilty.
Sane automatism: Insane automatism: qualified acquittal – not

unqualified acquittal guilty by reason of insanity
If the offence would have For all other offences see

been murder: mandatory above and section 3 of
Burden of proof indefinite stay in a psychi- the Criminal Procedure
The distinction between sane and atric hospital (Insanity and Fitness to
insane automatism has an important Plead) Act 1991
impact on the burden of proof:
Sane automatism Insane automatism

The defendant bears only an evidential The burden of proof here is on whoever
burden of adducing some medical evidence raises the defence. Where the defendant
to support the plea of automatism. The raises it, the defence bears the burden of
burden remains on the prosecution to proof on balance of probabilities. Where
disprove automatism beyond reasonable it is raised by the prosecution, then the
doubt. prosecution bears the burden of proof, the
standard being beyond reasonable doubt.
3.2.3 Insane automatism

Every man is presumed to be sane, and to possess a sufficient degree of reason to be
responsible for his crimes until the contrary is proved.
M’Naghten rules (1843) 10 Cl & Fin at 210.
Insanity is one of the exceptions to the rule in Woolmington (see page 25). Therefore where
the defendant raises a defence of insane automatism the burden of proof rests on him to
prove on balance of probabilities (the civil standard) that, at the relevant time, he was suf-
fering from insane automatism.
It is rare for a defendant to raise this defence. Where (as is usual) it is raised by the prosecu-
tion then the burden of proof is on the prosecution to prove beyond reasonable doubt that
the defendant was insane at the relevant time. It is frequently raised by the prosecution in re-
sponse to a plea by the defendant that he was suffering from sane automatism (section 3.2.4).
It is the M’Naghten rules which set out the defence of insanity. For the defence to succeed,
it must be proved that, at the relevant time, the defendant was suffering from a defect of
reason caused by a disease of the mind, so as not to know the nature and quality of his act,
or if he did know, then not to know that it was wrong.
You will deal with these Rules more fully later on in the course when you consider the
defence of insanity (see Chapters 12–13).
For the moment, please bear in mind the following points:

u A defendant does not have to be in a state of automatism to be deemed insane within the
M’Naghten rules.
u It is the part of the rule that the defect of reason be ‘caused by a disease of the mind’ which
is at issue in cases concerning automatism.
u Although medical evidence is essential here, insanity is a legal concept, not a medical one.
It is a question of law and it follows that it is for the judge to rule whether the condition the
defendant was suffering from constitutes a ‘disease of the mind’ and therefore insanity.
u Therefore, although the defendant must raise medical evidence as to his condition, ‘insan-
ity’ is a legal concept and not a medical one.
The first consideration, then, must be to determine what conditions might amount to a
disease of the mind.
Some conditions such as hyperglycaemia (high blood sugar), sleepwalking and epilepsy
have been held to be diseases of the mind for the purposes of distinguishing between sane
and insane automatism.
For example, in the case of Sullivan [1983] HL where the defendant, who suffered from
psycho-motor epilepsy, attacked somebody during the post-ictal† stage of an epileptic fit, †
Post-ictal stage: the period of
the House of Lords ruled that ‘mind’ in the M’Naghten rules is used in the ordinary sense of confusion following the epileptic
the mental faculties of reason, memory and understanding. seizure.
According to Lord Diplock in that case:

If the effect of a disease is to impair these faculties so severely as to have either of the
consequences referred to in the latter part of the rules, it matters not whether the aetiol-
ogy of the impairment is organic, as in epilepsy or functional, or whether the impairment
itself is permanent or is transient and intermittent, provided that it subsisted at the time
of commission of the act…the [reason for] the defence of insanity…has been to protect
society against recurrence of the dangerous conduct.
In Bratty (above) Lord Denning had said:

It seems to me that any mental disorder which has manifested itself in violence and is
prone to recur is a disease of the mind. At any rate it is the sort of disease for which a per-
son should be detained in hospital rather than be given an unqualified acquittal.
Lord Lane in the case of Burgess [1991] approved Lord Denning’s speech.
In Burgess, the defendant, while sleepwalking, had injured the victim. It was held that
sleepwalking would amount to insane automatism.
Although sleepwalking is classed as insane automatism, it is likely that a one-off episode

caused, for example, by a blow to the head or the taking of drugs would be classed as sane
automatism as here, the state of automatism would have been caused by an external factor.
Hyperglycaemia (which arises when a diabetic takes no or insufficient insulin) has also
been held to amount to insane automatism, as it would be the diabetes causing the
automatism. See Hennessy [1989] CA and Bingham [1991] CA.
The policy behind these decisions is not difficult to ascertain. Under normal circumstances,
it is difficult to imagine a situation where a controlled or partially controlled epileptic, a
sleepwalker or a diabetic who forgot to take his insulin would be a candidate for compul-
sory hospitalisation. Nonetheless, a person who has (albeit unwittingly) caused harm whilst
in the throes of one of these conditions is viewed by the criminal courts as dangerous: they
suffer from a ‘mental disorder which has manifested itself in violence’.
This person is not at fault and so should not be convicted of a criminal offence, but a not
guilty verdict leaves the judge powerless to make any provision in relation to that person.
The special verdict does not. Although the defendant is ‘not guilty’ the judge has the power
to make an appropriate order. It must be said, however, that it is difficult to envisage an
appropriate order for a forgetful diabetic!
3.2.4 Sane automatism

This arises where the automatism is caused by an external factor such as hypoglycaemia
(low blood sugar caused by, for example, too much insulin), concussion caused by a blow
to the head, alcohol or drugs.
In the case of Quick [1973] the defendant (a diabetic nurse who had attacked a patient)
claimed to be suffering from hypoglycaemia (high blood sugar caused by, for example, too
little insulin) having taken his insulin, but very little food and an amount of alcohol. He was
charged with assault occasioning actual bodily harm contrary to section 47 of the Offences
Against the Person Act 1861. He wished to raise the defence of automatism but when the
trial judge ruled that hypoglycaemia was insane automatism, he pleaded guilty and then
appealed to the Court of Appeal.
The Court of Appeal quashed his conviction but with some reservations given the impact of
the voluntarily consumed alcohol on his condition (see prior fault below).
Lawton LJ said:
The difficulty arises as soon as the question is asked whether he should be detained in a
mental hospital. No mental hospital would admit a diabetic merely because he had a low
blood sugar reaction.
And later:
Quick’s alleged mental condition, if it ever existed was not caused by his diabetes but by
his use of the insulin prescribed by his doctor. Such malfunctioning of his mind as there
was, was caused by an external factor and not by a bodily disorder in the nature of a disease
which disturbed the working of his mind. He should have had his defence left to the jury.
The apparent inconsistency in the law which results in a finding of insanity where a person
has raised the defence of automatism caused by hyperglycaemia but a finding of sane
automatism if caused by hypoglycaemia, has been subject to criticism.
See the extract from ‘Insanity, automatism and the burden of proof on the accused’ in your Go to your study pack
study pack. The full article by Timothy Jones can be found in the Law quarterly review (LQR and read Jones, T. ‘Insanity,
1995, 111 (Jul) 475–516). automatism and the burden
of proof on the accused’.
The legal position is, however, as stated above. In neither case is the person necessarily at
fault, but the first condition is caused by the diabetes (internal) whilst the second is caused
by the insulin (external). Both have manifested themselves in violence, although either is
probably as likely or unlikely as the other to recur. Given that the mischief the courts are
attempting to avoid is the potential danger which could arise from the recurrence of the
mental condition which resulted in violence, using the criteria of ‘external’ and ‘internal’
causes is not, it is suggested, the most satisfactory way of dealing with automatism.
A blow to the head is likely to cause some brain damage – hence concussion – in some
cases. This normally repairs itself and is therefore not ‘likely to recur’ even if it did manifest
itself in violence at the time. This is why, provided the violence was involuntary on the part
of the defendant, the verdict is likely to be sane automatism resulting in an unqualified
acquittal. Although concussion could be said to be an internal factor, the blow to the head
which caused it was external to the defendant. See Lord Diplock in Sullivan (above). Note,
however, if there was a second or subsequent episodes of automatism arising out of the
same blow to the head during which time(s) further violence was perpetrated it would no
longer be treated as sane automatism. As there would now be evidence that, not only had
it ‘manifested itself in violence’, but it was also ‘prone to recur’, any subsequent plea of
automatism would be treated as insane automatism thus giving the court power over the
disposal of the defendant.
Consider now the courts’ treatment of stress. In Hennessy (above) the Court of Appeal
approved the ruling in the Canadian case of Rabey [1978] that the ordinary stresses and
disappointments of life are ‘the lot of mankind’† and would not, in any event, constitute †
‘The lot of mankind’ means the
an external cause. It would seem from these decisions that, in the unlikely event of the fate, or natural circumstances of
courts accepting that stress could result in automatism, it would necessarily be insane human beings.
automatism.
However in the case of R v T [1990] it was held that post-traumatic stress disorder (PTSD)
(which had been diagnosed by a psychiatrist) could amount to sane automatism. The court
held that where this condition resulted in a normal person carrying out an act of violence,
this was not in itself a disease of the mind. The PTSD which the defendant suffered from
had been caused by her having been raped a few days before her act of violence against
another person. Her case, the court held, was distinguishable from those of Broome and Issit
(above) where there had only been a partial loss of control. In this case there was evidence
that the defendant, who was in what was described as a ‘dissociative state’, was acting as
though in a ‘dream’.
It could be said here that the rape was the external factor which caused the automatism
in the same way that a blow to the head which causes concussion is an external factor.
Therefore if the PTSD resulted in more than one act of violence on the part of a defendant,
the principles outlined above would come into play and, for that defendant, the condition
would be reclassified.
Activity 3.1 Online research

Peter Buck, lead guitarist with the rock group REM, raised the defence of sane automatism
when he was charged with a number of offences arising out of incidents on an aeroplane.
The solicitor who acted for him published an article in the Law society gazette.
Find the article published in the Law society gazette (which is available through LexisNexis
Professional) and answer the following questions.
a Was the verdict guilty or not guilty of the offences charged?
b What was his solicitor’s view as to the verdict?
3.3 Prior fault

Where the defendant’s automatism arises through some prior fault of his own, then he may
not be successful with his plea of automatism. For example, where a defendant falls asleep
– as opposed to having suddenly lost consciousness – at the wheel of his car it is likely that
he will be deemed to have been at fault for not having stopped driving when he started to
feel drowsy, i.e. when he was still able to exercise control.
Sane automatism has thus been sub-divided into two categories. These are:
Non self-induced automatism Self-induced automatism which arises from

For example concussion caused by a blow voluntary intoxication by alcohol or danger-
to the head, hypoglycaemia or a swarm of ous drugs. This is not a defence to crimes of
bees in the car. This is a defence both to basic intent although it will be a defence to
crimes of specific and basic intent. a crime of specific intent where the automa-
tism prevented the defendant from forming
the necessary mens rea for the crime.
Chapter 6 of this guide deals in more detail with specific intent and basic intent offences.
For the moment it is sufficient that you understand that a specific intent offence is one
which requires the prosecution to prove an actual intention on the part of the defendant.
Murder is expressed as a specific intent offence and thus requires proof of an intention on
the part of the defendant, to kill or to cause grievous bodily harm (Moloney). A basic intent
offence could be described as one for which proof of recklessness or negligence on the part
of the defendant is sufficient. For example, see the offence of criminal damage discussed in
Chapter 1 and Chapter 18. If you consider the definition of this offence set out in Chapter 1
you will see that the mens rea for this offence is expressed as ‘intention’ or ‘recklessness’. It
follows from this that recklessness is sufficient mens rea for the offence of criminal damage
provided the indictment includes a reference to recklessness.
The Rule in Majewski [1977] that self-induced intoxication is no defence to a basic intent
crime applies equally to automatism. The defence may not be relied upon as the defendant
will be deemed to have been reckless in allowing himself to get into that state in the first
place as everybody is presumed to know that drinking alcohol or taking recreational drugs
alters a person’s state of mind and can, in some cases, lead to violence and aggression.
Therefore an awareness of risk on the part of a particular defendant does not need to be
proved (see also Lipman [1970]).
Notwithstanding the above, it seems that self-induced automatism due to taking non-
dangerous drugs, e.g. medication, may provide a defence to basic intent offences. The
doctrine of prior fault, here, does appear to require an awareness of risk on the part of the
defendant.
In the case of Hardie [1985], where the defendant had committed arson (criminal damage
by fire which is an offence of basic intent) having taken some of his ex-girlfriend’s valium,
Parker LJ said:
It is true that valium is a drug and it is true that it was taken deliberately and not taken
on medical prescription, but the drug is, in our view, wholly different in kind from drugs
which are liable to cause unpredictability or aggressiveness.
And in the case of Bailey [1983] Griffiths LJ said:

Automatism resulting from intoxication as a result of a voluntary ingestion of alcohol or
dangerous drugs does not negative the mens rea necessary for crimes of basic intent, be-
cause the conduct of the accused is reckless and recklessness is enough to constitute the
necessary mens rea…But it seems to us that there may be material distinctions between a
man who consumes alcohol or takes dangerous drugs and one who fails to take sufficient
food after insulin to avert hypoglycaemia. It is common knowledge that those who take
alcohol to excess or certain sorts of drugs may become aggressive or do dangerous or un-
predictable things…But the same cannot be said without more of a man who fails to take
food after an insulin injection. If he does appreciate the risk that such a failure may lead to
aggressive, unpredictable and uncontrollable conduct and he nevertheless deliberately
runs the risk or otherwise disregards it, this will amount to recklessness.
It can be seen that the scope of the defence of automatism simpliciter has been severely
limited by the courts. Where there is evidence that, at the time of the alleged offence, the
defendant:
u displayed any control, or
u was suffering from a disease of the mind, or
u was guilty of any prior fault,
the defence of automatism simpliciter will not lie.
Activity 3.2 Online research

†
Find the case of R v Hardie on Westlaw and read Parker LJ’s judgment.† Ignore any references in that
case to R v Caldwell which
a With what offence (under which section(s) of what Act) was Hardie charged?
has now been overruled (see
b What was Hardie’s ground of appeal? Chapter 6). This does not affect
c The trial judge had directed the jury that the effects of valium were necessarily irrel- the actual decision in Hardie
evant. Did Parker LJ agree? which is still good law.
d How did Parker LJ say that the jury should have been directed?
Activity 3.3 Research activity

Find the case of R v Bailey [1983] 1 WLR 760 in the All England law reports and read the
headnote.
a What was Bailey’s defence?
b How did the Recorder direct the jury?
c Was Bailey’s appeal upheld or dismissed?
d Was Bailey’s conviction quashed?
Activity 3.4
Consider whether John might be successful with a plea of automatism under the following
circumstances. Do not consider any specific offences.
a Having taken the required prescription of insulin for his diabetes, he decided not to eat
any breakfast. On his way to work, due to hypoglycaemia he stumbled and fell against
Susie who fell over and hurt herself.
b Having forgotten to take his insulin, John, on his way to work and suffering from hyperg-
lycaemia stumbled and fell against Susie who fell over and hurt herself.
c While recovering from an epileptic fit, John beat Susie up causing her injury.
Activity 3.5
Read again the extract from the article ‘Insanity, automatism and the burden of proof’ in
your study pack.
a In R v Burgess which two questions did Lord Lane consider fell to be decided by the judge
before the defence could be left to the jury – in a case where the defendant raised the
defence of automatism?
b In the article Jones states: ‘cases are categorised as examples of sane or insane au-
tomatism on the basis of the external or internal origins of the involuntariness.’ What
problem does he identify with this test and what conceptual difficulty does he consider
to derive therefrom?
c Jones points out that ‘…there can be no evidential foundation for the defence of sane
automatism if the evidence is consistent only with the hypothesis that the accused suf-
fered from a disease of the mind’. What, according to Lord Diplock in Sullivan (above) is a
‘disease of the mind’?

Summary
Whether the prohibited conduct is an act or an omission, such conduct must be voluntary
in order to attract criminal liability. Where a person’s conduct is not under the control of
his conscious mind so that his bodily movements are unwilled and involuntary he is acting
as an automaton. This will negate the actus reus and mens rea of any offence with which he
might be charged. Automatism may be sane or insane and the ramifications in respect of a
successful plea will differ depending upon which type it is. Where a defendant has pleaded
sane automatism and it was caused by prior fault on his part this may negate his defence,
although there are exceptions to this.
Reflect and review

Look through the points listed below. Are you ready to move on to the next chapter?


Explain the principles relating to automatism. ¢ ¢ ¢
Understand the distinction between insane and sane

automatism. ¢ ¢ ¢
Understand the ramifications of that distinction. ¢ ¢ ¢
Explain the notion of prior fault. ¢ ¢ ¢
Must Revision
revise done
3.1 Automatism ¢ ¢
3.2 Limits to the defence of automatism ¢ ¢
3.3 Prior fault ¢ ¢

4 Actus reus: omissions
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
4.1 Imposition of liability for an omission to act . . . . . . . . . . . . . . . 37
4.2 Duty to act under the common law . . . . . . . . . . . . . . . . . . . . 40
4.3 Distinguishing between act and omission . . . . . . . . . . . . . . . . 42
4.4 New categories of duty . . . . . . . . . . . . . . . . . . . . . . . . . . 44
4.5 The ‘circumstances’ element of the actus reus . . . . . . . . . . . . . . 45

Introduction
P.R. Glazebrook in his article ‘Criminal omissions: the duty requirement in offences against
the person’ LQR 1960 at p.387 comments:
Although a failure to act may have as serious consequences as an act, and although
any difference between acts and omissions is often denied, the distinction is deeply
embedded in the law. This fact is no less inescapable because there is no precise test for
distinguishing an act from an omission. Human conduct may often be described in either
positive or negative terms, although one way rather than the other will appear more
natural…[But there are difficult cases] and their very existence leads to the imposition of
liability for omissions. A man is in his spring cart; the reins are not in his hands, but lying
on the horse’s back. While the horse trots down a hill a young child runs across the road
in front of the cart, is knocked down and killed. Had the man held the reins he could have
pulled the horse up. Did he kill the child by driving the cart recklessly, or by recklessly fail-
ing to drive the cart?
The conduct element of the actus reus usually Some cultural issues
requires proof of a positive act on the part of the Despite what Glazebrook says, people in England and
defendant. Although it could be said that we owe Wales do not habitually ride around in ‘spring carts’
negative duties to others such as not to kill them, not to with the reins recklessly thrown over the horse’s back.
injure them and not to steal from them, there is no This is a reference to a by-gone age. Today we all drive
general liability for failure to act under the common around in cars, though some of us still manage in driving
law of England and Wales. A stranger, for example, recklessly.
would not incur criminal liability for watching
The history of English law goes back many centuries, and
somebody drown in a swimming pool even if that
you will frequently find judges and authors referring to
person could have been saved with very little effort on
aspects of English culture which have disappeared. To
the stranger’s part.
keep up to date, read or watch the current British media.
The stranger would, however, incur criminal liability An understanding of British culture (past and present)
if he or she committed a positive act, such as holding will be of great help in understanding English law. See
the other’s head under the water, which caused or the ‘Culture’ section of your Learning skills for law guide.
contributed to the death. Either way, the victim has
died, but in the situation where the stranger merely watched the victim drown without
doing anything, the victim would have died in any event, whether or not the stranger had
been there.† †
Although some jurisdictions have
adopted a general principle of
Learning outcomes liability for failure to act – e.g.
By the end of this chapter and the relevant readings you should be able to: France – many, including England
and Wales, have not done so.
u explain the distinction between an act and an omission
u assess whether an offence is capable of being committed by omission

u understand the notion of a duty to act and under what circumstances such a duty is
likely to be imposed
u identify the circumstances under which a duty to act might change or cease
u recognise the circumstances element of the actus reus of an offence.
Essential reading
¢ Smith and Hogan, Chapter 5: ‘The elements of a crime: mens rea’, pp.75–89.
Readings from your study pack:
¢ Extract from Ashworth, A. ‘The scope of criminal liability for omissions’ LQR 1989.
¢ Lane LJ’s judgment in R v Stone and Dobinson [1977] 1 QB 345.
Criminal law 4 Actus reus: omissions page 37
4.1 Imposition of liability for an omission to act

A crime can be committed by omission, but there can be no omission in law in the ab-
sence of a duty to act. The reason is obvious. If there is an act, someone acts; but if there
is an omission, everyone (in a sense) omits. We omit to do everything in the world that is
not done. Only those of us omit in law who are under a duty to act.
Glanville Williams Textbook of criminal law, pp.148–149.
There are circumstances where the law does impose on a person a duty to act. Sometimes
a statute will specifically state that the actus reus of an offence is committed by omission
and sometimes the courts will determine that a particular offence may be committed by
omission even though the definition of that offence does not specifically provide for this.
Activity 4.1
Read Extract 1 from the article by Andrew Ashworth ‘The scope of criminal liability for omis-
sions’ LQR 1989, and answer these questions:
a To what is the term ‘omission’ properly applied? Go to your study pack
b How does Ashworth describe the ‘conventional view’ on liability for omissions? and read the article ‘The
scope of criminal liability
c How does he describe the ‘social responsibility view’?
for omissions’ by Andrew
Self-reflection Ashworth, pp. 424–425.
What might be the arguments in favour of imposing a general legal obligation to go to the
assistance of someone who is in the process of committing or has attempted to commit
suicide? Can you think of any arguments against imposing such a general obligation?
Where a statute specifically provides that an actus reus is committed by omission it will be
clear that a duty to act has been imposed on a particular class of person; the scope of any
such duty will also be clear.
For example, if a statute imposing criminal liability provided that everybody living in
England or Wales who had reached the age of 10 must attend a religious service on a
Sunday then it would be clear what duty had been imposed and on whom. The scope of the
duty would also be clear. It is no more and no less than attending a religious service on a
Sunday. It would thus – if it existed – be an offence of ‘mere’ omission, i.e. the failure to act
would, in itself, amount to the offence.
Failing to provide a police officer with a specimen of breath when requested to do so

contrary to s.6 of the Road Traffic Act 1988 and wilfully neglecting a child for whom you
are responsible contrary to section 1(1) of the Children and Young Persons Act 1933 are
examples of statutory offences of ‘mere’ omission. Section 1(1) of the Children and Young
Persons Act 1933 provides that:
If any person who has attained the age of sixteen years and has the custody, charge, or care
of any child or young person under that age, wilfully…neglects…him…in a manner likely to
cause him unnecessary suffering or injury to health…that person shall be guilty of an offence.
You will see from that definition why it is an offence of ‘mere’ omission. It is enough that
the defendant has wilfully neglected the child or young person ‘in a manner likely to cause
him unnecessary suffering…’ etc. It is not necessary to prove that the child or young person
did actually suffer etc. There is no requirement that a prohibited consequence arises out of
the defendant’s conduct. It is what is called a conduct crime.
Offences of ‘mere’ omission are rarely found at common law. But see Dytham [1979] and
Smith and Hogan, p.77.
Where the offence is not one satisfied by proof merely of prohibited conduct on the part
of the defendant, but is a result crime – an offence which requires proof of a consequence
arising from the defendant’s conduct such as murder or manslaughter – it will fall to the
court to determine whether a defendant’s inaction might result in criminal liability.
When considering liability for omissions in this context it must be considered first of all
whether the offence under consideration is capable of being committed by omission. Only
if it is capable of being committed by omission will it fall to be determined whether the
defendant was under a duty to act and is therefore liable for failing to do so.
Even where it is found by the court that a defendant was under a duty to act in a particular
situation and has unreasonably failed to do so, the burden remains on the prosecution to
prove all the other ingredients of the offence – i.e. any remaining elements of the actus reus
and the mens rea required for the particular offence with which the defendant has been
charged.
4.1.1 Is the offence capable of being committed by omission?
Essential reading
Offences which have been interpreted by the courts as capable of being committed by
omission include murder (Gibbins and Proctor [1918]) and manslaughter. Most of the cases
referred to below are manslaughter cases. Murder and manslaughter are common law of-
fences, as were (and possibly are) assault and battery which have generally been held to be
incapable of commission by omission.
Fagan v MPC [1969] is the authority for the proposition that the offence of assault cannot be
committed by omission but see also the case of Santana Bermudez [2004]. Note, however,
that in both of these cases the defendant had created the dangerous situation but failed to
take steps to avoid it. See also Miller [1983].
Activity 4.2
Read Smith and Hogan, pp.79–81: ‘Non-fatal offences against the person’ and ‘Offences
against property’.
a Why does the author consider that it might be more difficult to say that the offence of
battery can be committed by omission than it is to say that assault may be committed
by omission?
b To which offences against the person did the CLRC recommend that liability for omis-
sions should be restricted?
c Is it possible to commit the offence of criminal damage by omission?
As to whether a statutory offence can be committed by omission is a matter of construc-

tion of the wording of the particular statute.
Activity 4.3
Read Smith and Hogan pp.78–79.
Can the word ‘acts’ in a statute be construed as being satisfied by an omission?
4.1.2 Was the defendant under a duty to act?

Once it has been established that the offence is capable of being committed by omission
the court must determine whether the defendant was under a duty to act.
The duty, where it exists, is not an onerous one. A person is not expected to put his or
her own life at risk, rather the question that will be considered by the courts is whether a
defendant who was under a duty to act has discharged that duty to a reasonable standard.
What is reasonable will depend upon the circumstances in each case.
For example, whereas a stranger may without doing anything to help, watch with interest
a person drowning in a lake, a lifeguard who has been appointed to ensure the safety of
people using the lake will be under a duty to act. Although the lifeguard must discharge
any such duty to a reasonable standard, he will not be expected to put his own life in
danger. Rather, he would be expected to do that which a reasonable lifeguard would do. If
there was any particular danger to him – e.g. a shark swimming in the lake – it is likely that
he would discharge his duty by obtaining proper assistance. He would not be expected to
swim into the zone of danger or put his own life and safety at risk in any other way.
Nonetheless, the lifeguard must discharge his duty to a reasonable standard. What he did
or did not do in attempting to discharge that duty will be judged according to how the
court considers a reasonable lifeguard would have acted under the particular circumstanc-
es. It is thus an ‘objective’ test. Therefore even if a defendant thought he was doing his best,
if that ‘best’ was an ‘incompetent best’ it is unlikely to have been sufficient to discharge his
duty. See Stone and Dobinson in section 4.2.
Most people, of course, will act over and above any duty the law may have imposed upon
them and many will act when they are under no legal duty at all. It is difficult, for example,
to imagine a passer-by who sees a person drowning or witnesses an accident not even
bothering to call one of the rescue services.
There is a difference, however, between what we might term, ‘moral’ duty to act and a
‘legal’ duty to act. No legal sanction is imposed for breach of a moral duty – although there
may be social opprobrium – although many legal duties could be said to have arisen from
moral ones.
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.
Lord Coleridge CJ in Instan [1893].
Self-reflection
It is an offence under the law of of England and Wales not to wear a seat belt when travel-
ling in a motor car. Can this duty be said to have arisen from any moral obligations?
The issue for the courts in developing the law and the legislature in enacting law is when
should a legal duty to act be imposed and what should be the scope of any such duty? The
boundaries are very unclear. Although a parent is under a legal duty towards his or her
child, should a legal duty be imposed on someone in respect of their brother or sister, their
neighbour or perhaps someone to whom they have supplied illicit drugs as in Khan and
Khan (below)? Are you under a duty towards your friend? It is likely to depend upon the
situation. What might be the scope of any such duty which may exist? In Lewin v CPS [2002]
EWHC Crim 1049 a decision by the Crown Prosecution Service not to prosecute was upheld.
In this case the defendant, at the end of a car journey in Spain with his friend, left his friend
(who was intoxicated) asleep in the car. It was summer and the weather was hot. His friend
died. The defendant was only responsible for the welfare of his passenger whilst the car
was in motion. His duty towards his friend did not continue because the risk of death was
not reasonably foreseeable. In other words the court considered that the reasonable man
would not have foreseen that occurrence under those particular circumstances.
In determining in any case whether a legal duty exists the courts consider such factors as
the relationship between the parties, whether there was a voluntary undertaking, or a con-
tractual duty to act, or whether the defendant actually created the situation which gave
rise to a danger where it would have been reasonable for him to do something to rectify it.
This is not an exhaustive list of factors: the categories of situation where the courts will
recognise a duty are not closed (see Khan and Khan in section 4.4).
The scope of a person’s duty to act will be determined by the circumstances and may
change. For example, a parent’s duty to his young baby will be different to that of a parent
to an older or adult child. Depending upon the circumstances, there may be no duty at all
towards an adult child.
Although you may find the law in this regard (perhaps of necessity) to be somewhat vague
you will also find that if you give careful consideration to the reasoning of the judges in the
various cases (some of which are considered below) where a duty to act has been imposed
you will be in a better position to predict the likely outcome in a novel situation.
Self-reflection
Would you be in favour of the imposition of a general legal duty to act? What, at this stage,
do you think might be the advantages and disadvantages of this?
4.2 Duty to act under the common law

In addition to those offences where a duty to act is expressed in the definition, it has been
established by the courts that a defendant will be under a duty to act where:
a There is a duty arising out of a contract

Pittwood (1902) 19 TLR 37 Taunton Assizes: The defendant was a level crossing keeper† for †
Level crossing keeper: a level
the Somerset and Dorset Railway whose job between 7am and 7pm was, for the safety of crossing is a place where a
the public, to shut the gate whenever a train was passing through. One afternoon he left railway line crosses a road.
the gate open and a hay cart which was crossing the railway line was hit by a train, causing Gates are closed across the road
the death of one person and the serious injury of another. when a train is approaching and
road vehicles have to stop and
Pittwood was charged with and convicted of manslaughter.
wait. Today there are few level
The railway company had assumed the liability of protecting the public whenever they crossing keepers, as the system is
crossed the line. Pittwood’s contract with the railway company gave rise to duties to those controlled remotely.
who would be affected by his negligent performance of that contract. He was grossly and
criminally negligent as he had been paid to keep the gate shut and protect the public.
b D has inadvertently created a dangerous situation, becomes aware of it, but

fails to take steps to rectify it
Miller [1983] 2 AC 161 HL: The defendant was a tramp who was squatting in an empty house.
He fell asleep on a mattress without having extinguished his cigarette. He awoke to find the
mattress on fire. He moved to the next room and went back to sleep. The house caught fire
and £800 worth of damage was caused.
He was convicted of arson (criminal damage by fire: sections 1(1) and 1(3) of the Criminal
Damage Act 1971). The Court of Appeal dismissed his appeal against conviction and he ap-
pealed to the House of Lords. The House of Lords upheld his conviction.
Lord Diplock said:

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.
c There is a duty arising out of the relationship itself

Husbands and wives owe a duty to each other, parents owe a duty to their children (see
The Children and Young Persons Act above), and it is likely that under the common law
children who are capable of so doing owe a similar duty to their parents and possibly to
each other (see Gibbins and Proctor [1918]; cf Instan [1893]).
Note that Gibbins and Proctor confirms that murder is an offence which can be committed
by omission.
d A person has assumed the duty to care for another

If a grown up person chooses to undertake the charge of a human creature helpless either
from infancy, simplicity, lunacy or other infirmity, he is bound to execute that charge with-
out…negligence. (Per Brett J in R v Nicholls (1875) 13 Cox 75)
Stone and Dobinson [1977] 1 QB 345: Stone, who was 67, was almost blind, partially deaf and
of low intelligence, lived with Dobinson and his mentally subnormal son. Dobinson, aged
43, was described as ‘inadequate’ and ‘ineffectual’. Stone’s younger sister Fanny came to
live with them. She suffered from anorexia nervosa. She stayed in her room but would
occasionally go the kitchen for food when Stone and Dobinson were out. Over the two
years she lived with them she became progressively more ill. The defendants did try to
help her, for example by trying to find Fanny’s doctor although Fanny would not tell them
his name. Neither defendant knew how to use a telephone. Mrs Dobinson and a neighbour
washed Fanny who by that time was confined to bed and lying in her own excrement. The
neighbour tried unsuccessfully to get a local doctor to visit Fanny. A social worker visited
the house occasionally to see Stone’s son but nobody was informed of Fanny’s condition.
Fanny finally died.
Per Geoffrey Lane LJ:

…Whether Fanny was a lodger or not she was a blood relation of the appellant Stone; she
was occupying a room in his house; the appellant Dobinson had undertaken the duty of
trying to wash her, of taking such food to her as she required. There was ample evidence
that each appellant was aware of the poor condition she was in…It was not disputed that no
effort was made to summon an ambulance or the social services or the police…[but] [t]hey
did make efforts to care…The jury were entitled to find that the duty had been assumed.
Activity 4.4
Read Lane LJ’s judgment in Stone and Dobinson and answer the following questions: Go to your study pack and
a What had Dr Usher said was the likelihood of Fanny’s survival had she been admitted to read Lane LJ’s judgment in R
hospital two weeks before he examined her body? v Stone and Dobinson.
b What did the Crown allege in respect of the appellants’ (i.e. Mr Stone and Mrs Dobinson)
responsibility for Fanny’s death?
c Lane LJ said that there was ‘no dispute, broadly speaking, as to matters on which the jury
must be satisfied before they can convict of manslaughter in circumstances such as the
present’. What did he say were those matters?
d What was the first ground of appeal made by
counsel for the appellants?
e Did the court accept or reject that proposition? Reading cases (law reports)
What were its reasons? In your law studies you will need to read hundreds of cases.
f Lane LJ considered that the trial judge’s direc- This does not mean reading the full transcript of a trial, but the
tion to the jury was wholly in accord with the decisions and judgments made by the court. The majority of
principles outlined in Bateman. What was the the cases you read will be from the Appeal Court, or the House
one criticism he thought might be made in of Lords. Often you will simply be asked to read the views of
respect of that direction? one judge (such as Lord Justice Lane in R v Stone and Dobinson).
g Did the appellants succeed or fail with their But there is more to reading a case than just a bit of reading.
appeal against conviction for manslaughter? See Activity 6.4 in Chapter 6, and ‘Reading law reports’ in your
Learning skills for law guide.
Self-reflection
Could Stone and Dobinson be said to have caused Fanny’s death?
Reminder of learning outcomes

By this stage you should be able to:
u make an assessment as to whether an offence is capable of being committed by
omission
likely to be imposed.
Summary
The conduct element of the actus reus usually requires proof of a positive act on the part of
the defendant. Although it could be said that we owe negative duties to others such as not
to kill them, not to injure them and not to steal from them, there is no general liability for
failure to act under the common law of England and Wales. You will have seen that there
are situations where the law imposes a duty to act on a person which will result in criminal
liability for an omission to act or a failure to act to a reasonable standard. You will see as
you continue reading this chapter that the situations recognised by the courts which may
give rise to a duty to act are not closed and that new categories of duty may evolve.
4.3 Distinguishing between act and omission
Essential reading
Andrew Ashworth, in his article ‘The scope of criminal liability for omissions’, LQR 1992 108
(Jan) comments:
Whether we term certain events ‘acts’ or ‘omissions’ may be both flexible in practice and
virtually insoluble in theory: for example, does a hospital nurse who decides not to replace
an empty bag for a drip feed make an omission, whilst a nurse who switches off a ventila-
tor commits an act? It would seem wrong that criminal liability or non-liability should turn
on such fine points, which seem incapable of reflecting any substantial moral distinctions
in a context where the preservation of life is generally paramount.
Although the distinction between an act and an omission is generally self-evident – e.g. do-
ing nothing while somebody drowns as opposed to holding that person’s head under the
water so that they drown – the House of Lords in Airdale NHS Trust v Bland [1993] ruled the
removal of a nasogastric tube used for the purposes of providing nutrition and hydration to
a comatose patient to be an omission rather than an act – artificial nutrition and hydration
having been classified as medical treatment.
This case was distinguished by the Court of Appeal in Re: A (Conjoined twins: Surgical separa-
tion) [2001], the court holding that surgery to separate the twins was an act. Although not
apparently so at first glance, this case is in one sense analogous with Bland in that in A the
separation of the twins would result in the removal of the blood supply to the weaker twin
causing her death and in Bland the removal of the nasogastric tube resulted in the with-
drawal of nutrition and hydration causing his death. The trial judge in A considered that the
reasoning in Bland could be applied to A but the Court of Appeal did not agree. The blood
supply received by the weaker twin was not medical treatment: the operation to separate
them would be a positive act. Although the Court of Appeal agreed that the surgery could
go ahead without legal consequences for the doctors it was on different grounds.
The problem with distinguishing between acts and omissions tends to arise in the area of
medical treatment when a decision needs to be made as to whether to end a course of
treatment which is perceived to have become futile, in order to allow the patient to die, as
in Bland (above). In NHS Trust A v M, NHS Trust B v H [2001] it was held that the withdrawal of
artificial nutrition and hydration from a patient in a persistent vegetative state would not
breach Article 2 of the European Convention on Human Rights.
Similar problems have arisen with handicapped neonates† as in Arthur [1981] and †
Neonate: a baby from birth to
Re B (a minor) [1981] – see Smith and Hogan, pp.87–88. four weeks of age.
Where a patient is competent and refuses treatment, that refusal must be honoured.
To treat a person against their wishes – no matter how benevolent the motive – would
amount to an assault or worse. In Ms B v An NHS Hospital [2002] Ms B sought and obtained
a declaration from the court that the refusal of her doctors to disconnect the life support
machine to which she was connected and from which she wished to be disconnected and
allowed to die was an unlawful trespass (assault and/or battery).
However, a doctor who performs a positive act to end a patient’s life will be guilty of
murder even where the patient has requested this. In R v Cox [1992] Dr Cox’s patient was
dying. With her family’s approval she begged Dr Cox to give her a lethal injection, which he
did. He was convicted of attempted murder. He could not be convicted of murder because
before his conduct came to light the patient had been cremated and it could therefore
not be proved that there was a causal link between his conduct and her death. As she was
dying anyway, it was just possible that it was her illness which actually killed her. Causation
is discussed in Chapter 5.
Can an existing duty cease?

Another issue which has fallen to be considered by the courts is under what circumstances,
if at all, can an existing duty to act be said to have ceased?
Take doctors for example. It has long been established that a doctor owes a duty to his or
her patient. If a doctor does not act to a reasonable standard and the result of that breach
of duty is that the patient suffers injury or death then the doctor might be criminally liable,
provided of course the other elements of the offence are established (see Adomako [1995]).
This duty necessarily only exists in the context of the doctor-patient relationship. Its scope
is therefore limited and will depend upon the circumstances of each individual case.
In Airdale NHS Trust v Bland [1993] the House of Lords ruled that medical treatment
which artificially prolongs a person’s life is no longer appropriate where it has no
therapeutic purpose.† Lord Goff said: †
No therapeutic purpose = when
I am of the opinion that there is…no absolute obligation upon the doctor who has the treatment does not alleviate the
patient in his care to prolong his life, regardless of the circumstances. condition.
Therefore, although in these circumstances, discontinuance of treatment would be an

omission (see above) as the doctor is no longer under a legal duty to treat there could be
no breach of duty and thus no possibility of criminal liability.
4.4 New categories of duty

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.
In Khan and Khan [1998] two drug dealers supplied heroin to the victim. Having ingested the
drug she fell into a coma, the defendants failed to obtain medical assistance and she died.
They were convicted of manslaughter and appealed to the Court of Appeal where their
convictions were quashed. Swinton LJ commented:
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 persons to whom on previous authority, such a duty may be owed. It may be cor-
rect to hold that such a duty does arise…Unfortunately, the question as to the existence or
otherwise of [any such] duty…was not…at any time considered by the judge and the jury
was given no direction in relation to it.
In Singh (Gurphal) [1999] the Court of Appeal held that the question as to whether a situa-
tion gave rise to a duty to act was one of law for the judge to determine.
Following these two cases it was unclear whether the position was that the issue of
whether there was a duty was to be left to the jury, the judge having ruled that there was
evidence capable of establishing that there was such a duty (Khan) or whether it was purely
a question of law to be determined by the judge (Singh).
In Willoughby [2004] EWCA Crim 3365 the Court of Appeal held that it was the former. See
Chapter 7.
Activity 4.5
a John, who does not like doctors but instead believes in the power of prayer and natural
healing, goes to stay with his friend Luke. Luke is not very clean and always forgets to
throw old food away. John eats a piece of cooked meat which he finds in the kitchen, not
realising it has gone mouldy. He contracts food poisoning and begins to feel very ill. Luke
wishes to call a doctor but John refuses to allow it. Eventually, John falls into a coma.
Luke waits for a day hoping John will wake up but he does not. Eventually Luke calls for
an ambulance but it is too late. John dies on the way to hospital. Luke has been charged
with manslaughter.
i What factors will the court take into account when determining whether Luke was
under a duty to act?
ii If it was decided that he was under a duty to act, what factors would the court take
into account in determining whether or not he was in breach of that duty?
b Susan is a doctor. One day on her way to work she comes upon the aftermath of a road
accident. Jane is lying at the side of the road, badly injured. The ambulance has not yet
arrived. Susan is late for work so she rushes on. Jane dies but would have survived had
she received earlier medical treatment.
i Was Susan under a duty to act?
ii Might your answer differ if Jane was a patient of Susan?
4.5 The ‘circumstances’ element of the actus reus

Many crimes require the existence of a specified circumstance or specified circumstances
as part of the actus reus. For example, the circumstances element of the actus reus of the
offence of criminal damage contrary to section 1(1) of the Criminal Damage Act 1971 is that
what is destroyed or damaged must be ‘property belonging to another’.
Activity 4.6
Find the definitions of the following offences. What is the ‘circumstances’ element of the
actus reus of each of these offences?
a Theft contrary to section 1(1) of the Theft Act 1968.
b Criminal damage contrary to section 1(1) of the Criminal Damage Act 1971.
c Rape contrary to section 1(1) of the Sexual Offences Act 2003.
d The common law offence of murder.
e Bigamy contrary to section 57 of the Offences Against the Person Act 1861.
State of affairs as an actus reus

Occasionally the actus reus of an offence is the state of affairs rather than the conduct of the
defendant. These offences are called ‘state of affairs’ or ‘situational’ crimes and, arguably,
can result in strange and unfair results. See Smith and Hogan, pp.73–75.
Take the case of Larsonneur (1933) 24 Cr App R 74. Ms Larsonneur, a French citizen, was brought
to the United Kingdom from Ireland against her will by Irish police. On disembarking she was
arrested and charged under the Aliens Order 1920 of being found in the country as an alien to
whom leave to land in the UK had been refused. She was convicted despite the fact that she
had only been ‘found’ in the country because she had been brought here in police custody.
More recently in Winzar v Chief Constable of Kent (1983) The Times, 28 March the defendant was
convicted of being found drunk on a highway contrary to the Licensing Act 1872. The defendant
was drunk and slumped on a chair in a corridor within the hospital. The police were called and
removed him from the corridor to the street whereupon they charged him with the offence.
Reminder of learning outcomes

By this stage you should be able to:
u understand the distinction between an act and an omission
u assess whether an offence is capable of being committed by omission
likely to be imposed
u identify the circumstances under which a duty to act might change or cease
u recognise the circumstances element of the actus reus of an offence.
u state of affairs as an actus reus
u the ‘circumstances’ element of the actus reus.
Summary
The conduct element of the actus reus of an offence can include an act, an omission or a state
of affairs. In the overwhelming majority of cases it will be the defendant’s act which satisfies
the conduct element of the actus reus. Occasionally, however, it falls to be decided whether a
defendant’s omission to act will satisfy the conduct element of the actus reus. In this regard,
it must be determined first of all whether or not the particular offence is capable of being
committed by omission. If that is the case, the next issue to be determined is whether the
defendant was under a duty to act. There are a number of circumstances where it has been
established that a duty to act will lie, but note that the category of duty is not closed. Note
also that if the defendant was not under such a duty there can be no criminal liability.
Very occasionally, a state of affairs might result in a defendant being found guilty of a
criminal offence. These offences are sometimes known as ‘situational offences’ and tend to
be treated with great caution by the courts, although there are exceptions such as those
outlined above. Many offences require the existence of certain specified circumstances and
you will find the relevant circumstances in the definition of the offence you are considering.
Reflect and review

The conduct element of the actus reus of an offence usually requires proof of a positive act
on the part of the defendant. Although there is no general duty to act under the law for
England and Wales there are circumstances where the law does impose on a person a duty
to act, breach of which may result in criminal liability. Many offences require the existence
of certain specified circumstances.
Look through the points listed below. Are you ready to move on to the next chapter?


Distinguish between an act and an omission. ¢ ¢ ¢
Assess whether an offence is capable of being

committed by omission. ¢ ¢ ¢
Understand the notion of a duty to act and under

what circumstances such a duty is likely to be
imposed. ¢ ¢ ¢
Understand the circumstances under which a duty

to act might change or cease. ¢ ¢ ¢
Identify the circumstances element of the actus reus

of an offence. ¢ ¢ ¢
Must Revision
revise done
4.1 Imposition of liability for an omission to act ¢ ¢
4.2 Duty to act under the common law ¢ ¢
4.3 Distinguishing between act and omission ¢ ¢
4.4 New categories of duty ¢ ¢
4.5 The ‘circumstances’ element of the actus reus ¢ ¢

Criminal Law: Norman Baird Julia Fionda Mary Luckham

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Criminal law

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2 The elements of an offence . . . . . . . . . . . . . . . . . . . . . . . . 15

3 Actus reus: automatism . . . . . . . . . . . . . . . . . . . . . . . . . . 23

4 Actus reus: omissions . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

5 Actus reus: consequences . . . . . . . . . . . . . . . . . . . . . . . . 47

7 Unlawful homicide: murder and manslaughter . . . . . . . . . . . . . . 81

8 Voluntary manslaughter – the defences of provocation and

9 Simple non-fatal offences against the person . . . . . . . . . . . . . . 119

10 Aggravated non-fatal offences against the person . . . . . . . . . . . . 135

11 Sexual offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153

12 Defences 1 – Failure of proof and justificatory defences . . . . . . . . . 177

13 Defences 2 – Excusatory and mental disorder defences . . . . . . . . . 193

14 Inchoate offences . . . . . . . . . . . . . . . . . . . . . . . . . . . 207

15 Parties to crime . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225

16 Offences against property 1 – Theft and fraud . . . . . . . . . . . . . . 241

17 Offences against property 2 – Robbery, burglary and blackmail . . . . . 261

18 Criminal damage . . . . . . . . . . . . . . . . . . . . . . . . . . . . 273

Feedback to activities . . . . . . . . . . . . . . . . . . . . . . . . . . 289

1.1 Studying criminal law . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

1.2 Subject materials and online databases . . . . . . . . . . . . . . . . . . 9

1.3 The examination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

1.1 Studying criminal law

Woolmington v DPP [1935] All ER Rep 1

1.2 Subject materials and online databases

Additional recommended reading Reading and essential reading

Students often find the following books to be particularly helpful:

1.3 The examination

The Regulations for the LLB state:

1.3.1 Essay questions

Aim to structure your answer so that it includes:

1.3.2 Problem questions

Good luck with your studies.

Mary Luckham, Norman Baird, Julia Fionda, June 2006.

2.1 General analysis of criminal offences . . . . . . . . . . . . . . . . . . . 17

2.3 Proof of the ingredients of an offence . . . . . . . . . . . . . . . . . . . 19

2.4 Lawful excuse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

The issue of lawful excuse is also considered in this chapter.

Learning outcomes Learning outcomes: what are

2.1 General analysis of criminal offences

Traditionally criminal offences are analysed by reference Latin

2.3 Proof of the ingredients of an offence

2.4 Lawful excuse

If, as stated above, without lawful

Activity 2.5 Online research exercise †

Reflect and review

Ready to move on = I am satisfied that I have sufficient understanding of the principles

Tick a box for each topic.

Find the definition of a criminal offence. ¢ ¢ ¢

Understand the constituent elements of that

Understand the limits of the terms actus reus and

Understand in relation to ‘lawful excuse’ the

2.1 General analysis of criminal offences ¢ ¢

2.2 Limits of the terms actus reus and mens rea ¢ ¢

2.3 Proof of the ingredients of an offence ¢ ¢

2.4 Lawful excuse ¢ ¢

3.2 Limits to the defence of automatism . . . . . . . . . . . . . . . . . . . 26

3.3 Prior fault . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

Automatism simpliciter (usually referred to as ‘sane’ automatism or simply ‘automatism’)

For a brief discussion as to whether the voluntariness of a defendant’s conduct should be