Tutorial 3 - Actus Reus: The Conduct Element in Crime

Presentation: R v Miller [1983] 2 AC 16.

In this and in all future case presentations you will be expected to give
• a statement of the relevant facts;
• the name of the judge at first instance;
• the decision at first instance;
• the ground of appeal;
• The names of the appellate judges;
• the appellate courts decision on that appeal;
• where the case reaches the House of Lords, the names of the judges, the question(s) of
general public importance which were certified and the decisions thereon.
reason: duty to act – create dangerous situation
You will also be expected to answer any questions put to you on the case.
Note: For this tutorial in addition to reading your textbook you will need to do some basic
research for some of the questions below, including discovering the actus reus of assault, rape,
attempted rape, and section 20 Offences Against the Person Act 1861. Clue – use the index!
Questions
1. What is the actus reus of (a) assault (b) section 20 Offences Against the Person Act
1861 (c) attempted rape?

a) Assault – the defendant caused the victim to apprehend imminent unlawful force (pg
325) assault (no need to touch someone), battery (hit someone)

b) Section 20 Offences Against the Person Act 1861 (pg 337)

- ‘whoever shall unlawfully or maliciously wound or inflict any grievous bodily harm
upon any other person, either with or without any weapon or instrument, shall be
liable…to imprisonment for a term not exceeding five years’
- Actus reus: the defendant unlawfully either:
1) Wounded the victim; or
2) Inflicted grievous bodily harm to the victim

c) Attempted rape (pg 783, 790)

- Attempt – Section 1(1) Criminal Attempts Act
- Actus reus: the defendant has done an act which is more than merely preparatory to
the commission of the offence
- Rape – s1 Sexual Offences Act 2003
- Actus reus: the defendant penetrated the vagina, anus or mouth of the victim with his
penis and the victim did not consent to the penetration.
2. During the course of a party Adam sees Eve apparently asleep on a sofa. He kisses
her although he believes that she would not consent if conscious. In fact, Eve was not
asleep, had seen Adam’s approach, and had anticipated that Adam might kiss her
which was indeed her desire. Has Adam assaulted Eve? Has he committed any other
offence?

- Conduct: Adam kissed Eve (apparently asleep), however, Eve had indeed anticipated
and desired.
- Attempted sexual assault? Sometimes, a kiss alone can be battery – could be liable for
battery – but consent from both parties, desire (implied consent), but no express
consent; R v Kirk?
- Actus reus of sexual assault: defendant touches the victim sexually and the victim
does not consent to the touching.
- In this case, Eve had anticipated and desired, arguably Eve consented to the kiss.

3. Jack leaves a party with Jill, his lover and Adam's wife. Adam sees them go and
follows them in his car. Jack notices Adam following and increases speed as he goes
round a very dangerous bend in the road above a cliff. He is aware that if Adam
makes the same manoeuvre he will probably fall to his death and indeed hopes that
he will. Adam spins off the road over the cliff. Jack gets out of the car and hears
Adam calling for help but ignores him. An hour later Adam dies. The Crown
Prosecution Service ask your advice as to whether there is any legal basis for
bringing charges against Jack.

- Liability for omission – 3 requirements: duty to act, breach of duty, breach causes
resulting harm
- Duty to act: relationship based duty?
- Breach of duty?
1) No breach if performance is impossible
2) No breach if D’s conduct was justified
3) No breach if D acted as reasonably as could be expected in the circumstances.
- Breach causes resulting harm – Adam’s death, but can it be said that his death is
caused by Jack’s action?

- I: whether Jack is liable for Adam’s death/is there a legal basis to bring charges
against Jack?
- P: liability for omission – created dangerous situation?
- A: created a dangerous situation (had the knowledge and motive – aware that A
would make the same manoeuvre he will probably fall to his death and indeed
hopes that he will) – doesn’t necessarily to have a relationship (friends – different
category), did create a dangerous situation – embarked a car chase – relationship
relevant in Bowditch?
 - Evans – voluntarily give drugs? Reasonable thing to do maybe call for help? What
would a normal person do?

4. What is ‘situational liability’? Is it a true exception to the principle that criminal

liability requires a voluntary act?

- Criminal liability – D is guilty for being in a particular situation or state of affairs

- Example, s3(1) Dangerous Dogs Act 1991 – ‘being the owner of a dangerous dog
which was out of control in a public place and therein injures a person’
- Doesn’t necessarily have to be doing sth, possession of firearms
- On the one hand, prior act is voluntary – maybe decided to take the dog out for a walk
– voluntary
- dangerous dog exp – in state of affairs with dogs which got out of control

5. Read the case of R. v. Robinson-Pierre (2014) 1 WLR 2368. Do you agree with the
decision? Is it consistent with R v Elvin?

R v Robinson-Pierre
Facts: Police officers executing a search warrant broke open the front door of the
defendant's home and entered the house. A pit bull terrier belonging to the defendant
escaped from the house and bit several police officers who were on the pavement. The
defendant was convicted of three counts of being the owner of a dog which was
dangerously out of control in a public place and which whilst so out of control injured a
person, contrary to section 3 of the Dangerous Dogs Act 1991.
Held: The defendant had not done or omitted to do anything that contributed to the dog
being dangerously out of control in a public place; and that, accordingly, the convictions
were quashed.

R v Elvin
Facts: The defendant left two pit bull terriers at large in premises that were inadequately
secured so that they escaped and bit a third party.
Held: D convicted of being the owner of a dog which was dangerously out of control in a
public place and which whilst so out of control injured a person, contrary to section 3(1)
of the Dangerous Dogs Act 1991. Where a dog was in a public place and was shown to
be acting in a way which gave grounds for reasonable apprehension that it would injure
anyone, within section 10(3) of the Act of 1991, section 3(1) of the Act imposed absolute
liability upon the owner or the person for the time being in charge of the dog; that it was
no defence that the owner had no realisation that his dog might behave in such a way; and
that the onus was on the owner to take steps which were effective to ensure that it did not
do so.
 - Consistent. In R v Robinson-Pierre, the police broke the front door and there was
nothing the defendant could have done which led the dog to bite the police.
- In R v Elvin, the dog’s enclosure was already not safe, and it was not damaged by any
other parties. Therefore, the defendant would be liable.

6. Which, if any, of the following cases place A under a duty to act and, if a duty does
exist, what is the source of that duty. When you have done this consider whether, on
the basis of your answers, the range of duty situations is either too narrow or two
broad.
• A is a swimming pool attendant. He sees V, a swimmer, struggling out of her
depth in the pool.
- A is under a duty to act
- Source of duty: contractual duty
- R v Pittwood
- Facts: D was employed as a gatekeeper on a railway line. One day he failed to
perform his duties and did no close the gate when required. This led to an accident in
which a train hit a cart and a man was killed. Held: liable for manslaughter because
he was required under his contract of employment to ensure the gate was shut. The
omission was in breach of his contractual duty and thus constitute a criminal offence.

• A, is the sister of V. She sees V struggling out of her depth in the pool.
- A is under a duty to act?
- Source of duty: relationship-based duty?
- R v Evans (Gemma) – Evan’s sister was a heroin user. The defendant provided her
sister with some heroin, which her sister self-injected. The defendant recognised that
her sister was developing symptoms consistent with a heroin overdose. However, out
of fear of her own prosecution she chose not to call for medical assistance. The sister
consequently died from an overdose. Held: The defendant’s conviction for gross-
negligence manslaughter was upheld. The Court held that being the victim’s half-
sister was insufficient to impose a familial relationship duty (as in a parent-child
relationship) on to the defendant. However, the court found that Evans did owe a duty
of care towards her half-sister because she helped create a dangerous situation by
supplying the heroin. Evans therefore came under a duty to act to prevent the victim’s
death. In these circumstances, the defendant was held responsible for her omission to
call for medical care.
- Blood line element not relevant – Nicholls – grandmother and child
- No relationship duty? But whether A assumed the responsibility? Maybe V is
younger so A took responsibility?

• A, is the mother of V. She sees V struggling out of her depth in the pool.

- A is under a duty to act

- Source of duty: relationship-based duty
- R v Gibbons and Proctor – A child’s father and his common law wife neglected and
starved his child, who died of starvation. Held: Parents held liable even though the
failure to feed was an omission.
- Emery? Under age there is relationship-based duty? If underage [Lowe, Shepherd] –
need to act
- Look at relationship and age?
- However, if A could not swim, she would not be held liable. Instead, the reasonable
thing to do is to summon help.

• A is the son of V. He sees V struggling out of her depth in the pool.

- A is under a duty to act?

- Source of duty: relationship based duty?
- Could be argued that a son has assumed the duty of care of his parents.
- Existence of a duty owed by older children towards elderly parents is yet to be tested
in the courts? (pg 71)
- However, if A could not swim, he would not be held liable. Instead, the reasonable
thing to do is to summon help.

• A, is the owner of the swimming bath. She sees V struggling out of her depth
in the pool.

- Under a duty to act?

- Source of duty: no duty?

• A is the mother of T, aged 10, who has invited V his friend, also aged 10, to
go swimming with him at the local pool. A sees V struggling out of his depth
in the pool.

- Under a duty to act?

- Source of duty: assumed duty of care? Since V was invited to go and V would not
have been in this situation, A should assume the duty of care.
- However, if A could not swim, she would not be held liable. Instead, the reasonable
thing to do is to summon help.

• A and V are an unmarried couple who live together. A sees V struggling out
of his depth in the pool.
 - Under a duty to act?
- Source of duty: assumed duty of care.
- Bowditch – a man met a woman at a nightclub. They were ‘messing about’ by the
sea, when she fell in. He simply walked away and left her to drown. Held: the man
was convicted of manslaughter because they had embarked on a risky enterprise
together that they could have said to have undertaken to look after each other.
- Therefore, although they are unmarried, A owes the duty of care to V as it could be
argued that they had embarked on a risky enterprise together that they could have said
to have undertaken to look after each other.

• A, who is supervising her child at a swimming pool, drops an ice cream

accidentally at the poolside. V a child slips on the ice cream and falls into the
pool. A sees V struggling out of her depth in the pool.

- Under a duty of care

- Source of duty: creation of a dangerous situation
- R v Miller – D, who was drunk, fell asleep with a lighted cigarette in his hand in the
house which he was staying. He subsequently woke to discover that his cigarette had
set his mattress on fire. He simply moved out of the room into a neighbouring room.
Held: upheld the conviction, Miller was under a duty to stop the fire because he had
started it and that leaving the room in breach of his duty to act he was therefore
committing the actus reus of the offence and at that time he also had the necessary
mens rea.
- A owes V duty of care since she created the dangerous situation by dropping the ice
cream, making the floor slippery.
- However, if A could not swim, she would not be held liable. Instead, the reasonable
thing to do is to summon help.

7. What is a bad Samaritan law? Should English law adopt a Bad Samaritan law?
What are the arguments for and against? (pg 108-111)
- Bad Samaritan law – punish bystander for being a bad person, for his selfishness,
callousness that caused him not to come to the aid of a person in need.

For
- The line between an act and an omission is too fine a line on which to place any great
weight.
- Concept of social responsibility – the need for cooperation in social life

Against
- Criminal law should not be used that way; only punishes individuals for their
culpable acts
- Retributivist – The risk of punishing an innocent person is high with BS laws – How
to determine bystander’s potential guilt? Exp, a person who wakes up from sleep
often fails to appreciate her surroundings.
- Police and prosecutors would be granted too much discretion to determine whether
and whom to prosecute – risk with BS law that prosecutors’ decision would be based
on a prosecutor’s perceived need to respond to public outrage, which in turn, may be
based less on the merits of the case and more on media coverage (which in turn, may
be) founded on inappropriate factors such as race, background or even physical
attractiveness of the victim or the supposed poor character of the bystander).
- Utilitarian – cost of investigating and potentially prosecuting bystanders might be
prohibitive
- There is a risk that the good Samaritan will hurt the person she is trying to assist, hurt
others in the process or unforeseeably harm herself
- Restrict human liberty to a greater degree – if a law requires a person to do Y, that
bars a person from doing anything other than Y.