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The background to the case is explained in Lanham (1976).

58
See also Winzar v Chief Constable of Kent The Times, 28 March 1983.
59
See e.g. Kennedy [2007] UKHL 38, [15].
60
Shute (1992: 584).
61
Empress Car Co (Abertillery) Ltd v National Rivers Authority [1998] 1 All ER 481 (HL).
62
Malcherek [1981] 2 All ER 422 (CA).
63
[2018] EWCA Crim 690.
64
R v Maybin [2012] 2 SCR 30 at [29].
65
Firkins (2023).
66
This is sometimes known as sine qua non causation.
67
Wallace [2018] EWCA Crim 690.
68
[1908] 2 KB 454 (CA).
69
There was, however, no conviction for manslaughter because the victim did not die within a year and a day of the defendant’s actions. That year and a day
rule is no longer part of the law (Law Reform (Year and a Day Rule) Act 1996).
70
[1910] 2 KB 124 (CA).
71
[2013] UKSC 56.
72
[2018] EWCA Crim 690, [64].
73
Mellor [1996] 2 Cr App R 245.
74
Wallace [2018] EWCA Crim 690.
75
Kimsey [1996] Crim LR 35 (CA).
76
Cato [1976] 1 All ER 260 (CA).
77
[2010] EWCA Crim 1249.
78
[2013] UKSC 56.
79
[1971] 3 All ER 133.
80
Simester (2017b).
81
[2007] EWCA Crim 1846.
82
See W. Wilson (2008b) for an excellent discussion of the issues raised.
83
[2018] EWCA Crim 690.
84
Latif [1996] 1 All ER 353 (HL).
85
Scott v Shepherd (1773) 96 ER 525.
86
See Chapter 15 for a lengthy discussion of this case.
87
R v Wallace [2018] EWCA Crim 690.
88
Pagett (1983) 76 Cr App R 279 (CA); cf. Latif [1996] 1 All ER 353 (HL).
89
Hart and Honoré (1985: 335).
90
[1981] 1 WLR 690 (CA).
91
[2018] EWCA Crim 690.
92
Similarly, if D is a child or suffers from a lack of mental capacity his actions will not be free, voluntary, and informed.
93
[1992] 2 All ER 183 (CA).
94
[2010] EWCA Crim 151.
95
[2016] EWCA Crim 2278.
96
[2006] EWCA Crim 1139.
97
Horder and McGowan (2006: 1042). See also Lodge (2020).
98
Gorar (2023).
99
Marjoram [2000] Crim LR 372 (CA).
100
[1996] Crim LR 595.
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[ 99 ] 595
101
(1956) 40 Cr App R 152 (CA)
102
[1991] 3 All ER 670 (CA).
103
[1981] 2 All ER 422 (CA).
104
W. Wilson (2003: 112–13).
105
[1991] 3 All ER 670 (CA), (1991) 93 Cr App R 251.
106
In Hart [1986] 2 NZLR 408 the New Zealand Court of Appeal found the defendant guilty on similar facts.
107
[2003] EWCA Crim 3935.
108
In such a case it is arguable that the hospital trust also caused the death.
109
[1975] 1 WLR 1411, (1975) 61 Cr App R 271.
11 0
Watson [1989] 2 All ER 865 (CA).
111
(1908) 21 Cox CC 692.
11 2
(1992) 94 Cr App R 51 (CA).
11 3
[1975] 3 All ER 446 (CA).
11 4
See the discussion in J.C. Smith (2002b: 55).
11 5
( 8 ) C&P 6

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10/9/24, 11:52 AM Criminal Law

Part II: Actus Reus: Theory

4 Classification of Offences
As suggested at the start of this chapter, the most common way of analysing a criminal offence is to divide it into three
elements:116

(1) the actus reus,

(2) the mens rea,

(3) defences which the defendant may rely on.

However, this is by no means the only way of separating out the elements of the offence. Andrew Ashworth, for example, uses
four requirements:
(1) act and causation requirements,

(2) absence of justification,

(3) capacity and fault requirements, and

(4) excusatory defences.117

By contrast Glanville Williams argues that there are only two elements of an offence, the actus reus and mens rea.118

You may well be wondering whether it really matters very much how we divide up the elements of an offence and how we
decide into which category a particular requirement falls.119 Is this not just academics desperately trying to create a tidy picture
of the criminal law? Well, there are both practical and theoretical benefits which some claim for such analysis.120 Here are
some: ←1 (p.66)

(1) Evidential rules Such divisions may assist when considering burdens of proof. As a very basic rule the prosecution
must prove beyond reasonable doubt the actus reus and mens rea. However, the defendant has an evidential burden
in relation to a defence.121 Unfortunately there are exceptions to this. For example, a justification (e.g. self-defence)
has been regarded by the courts as an element of the actus reus,122 but the defendant carries the evidential burden in
relation to the justification.
(2) Substantive law There are some occasions on which the substantive law requires attention to whether or not the
actus reus of the crime has occurred. For example, strict liability offences (see Chapter 4) require proof of the actus
reus, but not the mens rea.
(3) Theory It can be claimed that the distinction between actus reus and mens rea assists in theoretical analysis of
offences in that it separates the issues: what is the wrong with which this offence is concerned (the actus reus
question) and when will the defendant be held sufficiently blameworthy for the offence (the mens rea question).
Several commentators have objected to this kind of reasoning and claimed that the wrong done to the victim
sometimes depends on the state of mind with which an act is done. Antony Duff123 gives an example: ‘Robbery is not
just a physical attack or threat, plus theft: the character of the attack or the threat as a particular kind of wrong is
determined in crucial part by the fact that it is made in order to steal.’ In his view, then, the definition of the wrong
done to the victim can include elements of both the actus reus and the mens rea.

FURTHER READING

Robinson, P. (1993) ‘Should the Criminal Law Abandon the Actus Reus/Mens Rea Distinction?’ in S. Shute, J. Gardner,
and J. Horder (eds) Action and Value in Criminal Law (Oxford: OUP).
Robinson, P. (1997) Structure and Function in Criminal Law (Oxford: OUP).
Smith, A. (1978) ‘On Actus Reus and Mens Rea’ in P.R. Glazebrook (ed.) Reshaping the Criminal Law (London: Sweet &
Maxwell).

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10/9/24, 11:52 AM Criminal Law

5 The Need for a Voluntary Act

Contrast these two examples:

(1) Alfred was a mathematician and was so taken up with considering a novel algebraic problem that he did not look
where he was going when he bumped into Beth, who then fell over.

(2) Chau was walking along when he was pushed from behind by Danielle, causing him to bump into Edith, who also fell
over.

In both cases Alfred and Chau did not intend to bump into anyone. But there is an important difference between the cases.
Although we can say that Alfred’s acts caused Beth to fall over in case 1, it is not clear that Chau acted at all. Indeed, Danielle
was the one who acted and Chau was more like an object than a person.124 Something was done to him, rather than something
being done by him. This distinction is reflected in legal terms by the fact that Alfred would be found not guilty because he
lacked mens rea (he was not acting intentionally or recklessly), while Chau would be found not guilty on the basis that he did
not commit the actus reus (he did not do anything).

As mentioned in Part I, it is often stated that a defendant can be convicted of a crime only if they have performed a voluntary
act. But why might the law have such a requirement?

5.1 Why Might the Law Have a Voluntary Act Requirement?

One reason the law may require an act is the argument that the criminal law should not punish evil thoughts alone. But why
not? Several reasons could be advanced for this:125

(1) Those who fantasize about crime have not done anything which is sufficiently harmful to society to justify
criminalization. We do not punish people for being bad, but for doing bad things.126

(2) There would be enormous difficulties of proof if an offence were directed towards the thoughts of the defendant
alone. Requiring an act lessens the chance of a wrongful conviction by demanding some outward manifestation of the
wrongful thoughts.

(3) The requirement limits government power. Punishing people for their thoughts is normally associated with the most
authoritarian of governments and is too open to manipulation by corrupt governments or officials who wish to punish
those they perceive to be a threat to their power.127

Why must the act be voluntary? As indicated in our consideration of Alfred and Chau, an involuntary action is not only one for
which the defendant is not responsible, it is also one which cannot even properly be described as their act. It would clearly be
unjust to punish a defendant for something they could not have avoided ‘doing’, even if they had tried their best.

5.2 What Is the ‘Voluntary Act Requirement’?

The obvious meaning of the requirement is that any offence must involve proof that the defendant did something. But Donald
Husak has argued that the requirement must mean more than that. His point is that an offence of ‘thinking evil thoughts while
knitting’ is objectionable even though it involves proof of an act (namely knitting). The offence is still objectionable because it is
the evil thoughts and not the act of knitting which the offence is actually seeking to prevent. Hence Husak argues that criminal
liability must be imposed ‘for an act’.128 ←2 (p.67)

To understand the requirement further we need to consider what we mean by a ‘voluntary act’.

The traditional view is that actions are ‘willed bodily movements’.129 This has come under some criticism. If one is trying very
hard to stay still (in a ballet pose for example) should this not be an act, even if there is no movement. Also, is the requirement
of ‘willed’ too strict because people sometimes act on ‘automatic pilot’ when engaging in some routine act (e.g. washing or
eating) where it would be artificial to talk about such acts being willed. But it might be said that in such cases there is an
‘unconscious will’130 which is operating or that such actions could have been guided by decisions of the actor if they had wished,
even if in fact they were not.131

If we decide that the traditional view of the voluntary act requirement is not accepted, what alternatives are there? The most
popular has become known as ‘the control principle’: it would be unjust to impose criminal liability for a state of affairs over
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132
which the defendant had no control. Although Susan Dimock has preferred the ‘agency principle’—‘that liability be imposed
for conduct that is expressive of the defendant’s agency’133—she is willing to accept that a person may have no control over their
behaviour, but have chosen to put themselves into that position (e.g. through intoxication). In such a case their behaviour may
express their agency, even if uncontrolled.

Questions

1. Is it wrong to assume that an act is either voluntary or involuntary? Would it be better to accept that there is a
scale of voluntariness? Would doing so render the law too uncertain? (See Denno (2002).)

2. Is it possible to distinguish ‘moral voluntariness’ (where a defendant is under intense moral pressure, e.g.
duress) and ‘physical voluntariness’ (where a defendant is physically unable to act otherwise than he did)?
(See Norrie (2001: Ch. 6).)

FURTHER READING

Child, J. (2019) ‘Defence of a Basic Voluntary Act Requirement in Criminal Law from Philosophies of Action’ New Criminal
Law Review 24: 1.
Hart, H.L.A. (1968) ‘Acts of Will and Responsibility’ in H. Hart, Punishment and Responsibility: Essays in the Philosophy
of Law (Oxford: Clarendon Press).
Husak, D. (1999b) ‘Does Criminal Liability Require an Act?’ in R.A. Duff (ed.) Philosophy and the Criminal Law
(Cambridge: Cambridge University Press).
Moore, M. (1993) Act and Crime (Oxford: Clarendon Press).
Moore, M. (2009) Causation and Responsibility: An Essay in Law, Morals, and Metaphysics (Oxford: OUP).
Simester, A. (1998) ‘On the So-Called Requirement for Voluntary Action’ Buffalo Criminal Law Review 1: 403.

6 Omissions
As we saw in Part I of this chapter, the criminal law is generally reluctant to impose criminal liability on a defendant who failed
to act. It will do so only if there is a legal duty on the defendant to act.

6.1 Should the Criminal Law Punish Omissions?

Despite the bitter arguments over the punishment of omissions, in fact there is less disagreement than appears at first sight.
Few people suggest that we should be guilty for every omission, nor do many suggest that omissions should never be
punished.134 The debate is really over which omissions should be punished. ←3 (p.68)

Arguments against criminalizing omissions

It is argued by some that it cannot be said that an omission causes a result.135 If a person walks past a drowning child in a pond,
can it be said that that person caused the child’s death? Using ‘but for’ causation it can be argued that had the defendant not
been there the child would still have died at the same time and in the same place. The omission failed to alter the status quo.
Further it could be argued that the person’s failure to save the child was as significant as anyone else’s failure to rescue. Another
point is that it is often difficult to know for sure what would have happened if the defendant had acted. Even if they had tried to
save the drowning child they may not have been able to.136

Those who support liability for omission have struggled to overcome this argument. Hart and Honoré137 explain that omissions
liability can be supported by their distinction between normal and abnormal events (discussed further in Section 8.2). They
suggest that if someone is under a duty to act and fails to do so this will be regarded as ‘abnormal’ and hence a cause of the
result. For example, if several people walk past a child drowning in the pond, including the child’s father, the fact that the father
is under a duty to save the child in English law means that it is abnormal for him to walk past, while it would be ‘normal’ for
others to walk past. This explanation is, however, problematic. It concerns an ambiguity over the meaning of ‘normal’. If
‘normal’ means that an action is statistically likely, it is far from clear that statistically it is abnormal for people to help children
i il 138 If l h t‘ ht’ t th th t i l b th t l i h df i i
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in peril.138 If normal means what ‘ought’ to occur then the argument simply becomes that people are punished for omissions
because they ought to be.139

It is crucial to realize that this causation argument is not a ‘knockout argument’ for those who do not wish to punish omissions.
The argument is simply stating that one cannot sensibly argue that an omission causes a result. That does not mean that the law
cannot seek to punish omissions. The causation argument could not be used against a statute which stated that it was a criminal
offence not to offer aid to someone you could reasonably be expected to help. Such a statute does not claim that the omission
has caused anything—it punishes for the failure to act itself. In the following extract, Joshua Dressler considers such laws,
which are often known as ‘Bad Samaritan laws’.140 You should note that in this passage ‘BS laws’ is Dressler’s (rather
unfortunate!) abbreviation for Bad Samaritan laws:141

J. Dressler, ‘Some Brief Thoughts (Mostly Negative) about “Bad Samaritan” Laws’ (2000) 40
Santa Clara Law Review 971 at 981–9

2. Refuting the Justifications f or Bad Samar it an Laws

…
Criticisms of BS laws begin with legalist concerns with retributive overtones. First, why is the offense called a ‘Bad
Samaritan’ law? The name suggests, I think, that we punish the bystander for being a bad person, i.e., for his
‘selfishness, callousness, or whatever it was’ that caused him not to come to the aid of a person in need. However, the
criminal law should not be (and, ordinarily, is not) used that way: criminal law punishes individuals for their culpable acts
(or, perhaps here, culpable non-acts), but not generally for bad character. As mortals, we lack the capacity to evaluate
another’s soul. It is wrongful conduct, and not an individual’s status as a bad person or even an individual’s bad
thoughts, that justify criminal intervention. BS laws may violate this principle. At a minimum, there is a serious risk that
juries will inadvertently punish people for being (or seeming to be) evil or ‘soulless,’ rather than for what occurred on a
specific occasion. One need only consider David Cash and the public’s intense feelings of disgust and anger toward him
to appreciate why jurors might convict Bad Samaritans less on the basis of the ‘technicalities’ of a statute, and more on
the basis of character evaluation.

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