2.1.3 Actus Reus Lecture – Hands on Example
The following scenario is intended to test your knowledge of the issues that may arise in relation to the actus reus of an offence. The issue in this context is whether the potential defendant is likely to be found to have satisfied the required guilty conduct elements of the offence. You do not need to consider mens rea, whether the defendant has a guilty state of mind.
In situations where questions arise as to actus reus it is often the distinction between the approaches that can be followed that is relevant. Therefore, whilst the facts of the scenario may suggest one approach, you must analyse the potential alternative approaches in order to be certain that the approach you are suggesting should be followed is correct. In other words, it is not enough to simply state that this is the correct answer. In this kind of scenario, the wrong answers often need to be eliminated.
There a three broad steps that should be followed:
- Identify the actus reus of the offence from either the statutory or common law definition;
- Consider whether these elements are present from the conduct of the defendant;
- Decide whether the defendant will be found likely to have caused any of the harm that the victim suffers.
Criminal Damage Act 1971, s 1(1)
A person who, without lawful excuse destroys or damages property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence.
- Peter, a keen cyclist, is travelling along a busy main road, when Julie pulls her out in front of him in her car. Peter is furious because he is sick and tired of inconsiderate car drivers ignoring cyclists. In fact, he was knocked off his bicycle two weeks ago on the same stretch of road. Peter shouts and shakes his fist at Julie, who, despite seeing him, ignores him and drives off. This makes Peter even more angry and so, because the traffic is quite heavy and slow moving, he follows Julie to work, where she parks her car. When, Julie gets out of the car, Peter cycles up to it and kicks the door leaving a large dent.
Does Peter satisfy the requirements of the actus reus of criminal damage?
- Incensed by Peter’s behaviour, Julie runs towards him brandishing a bottle of mace spray that she keeps in her handbag. Peter notices Julie and, in order to avoid being sprayed in the face, jumps out of the way and straight into the path of Michael who is arriving at work on his motorbike. Peter is hit by the motorbike and falls to the floor with minor cuts to his knees and a broken collar bone.
Consider Julie’s liability for Peter’s injuries (you do not need to address any specific offences).
- Graham works as a security guard at Julie’s place of work. It is his job to ensure that only authorised personnel enter the car park. Graham saw Peter and knew that he was not supposed to be in the car park, but because Peter looked so angry, Graham decided that he would not stop him entering and hid in his office instead.
Consider Graham’s potential liability.
- Graham, after seeing Peter’s fall telephones an ambulance. The ambulance takes Peter to the local hospital where his injuries are treated in accident and emergency. However, because the break to Peter’s collar bone is quite serious, it is decided that he should remain in hospital for the next few days. During his stay in hospital, the cuts to Peter’s knees practically heal, but, just to be on the safe side, Dr Brown, 5 days after Peter’s admission, decides to prescribe some penicillin, despite it being clear from Peter’s medical records that he has a severe allergy. Peter takes the drug and dies within minutes from anaphylactic shock.
Julie is charged with Peter’s manslaughter (you do not need to be concerned about the elements of this offence). She claims at trial that Dr Brown’s treatment broke the chain of causation between her actions and Peter’s death. Is this approach likely to succeed?
This question requires a simple analysis of the definition of the offence. You need to identify the actus reus elements of criminal damage from the part of the Act that is provided
The actus reus elements are – damaging property, that belongs to another. There is no doubt that denting the car door will be considered damage and therefore, because the car belongs to Julie, the actus reus elements are satisfied.
Although the answer to this question is yes, you need to set out your reasoning and how you arrive at this answer.
The issue in this question relates to causation. Did Julie cause Peter’s injuries?
Both types of causation need to be addressed.
Factual ‘but for’ causation, is easily satisfied. The question is simple, but for Julie’s actions, would Peter have been hurt? The answer is of course, no he would not. If Julie had not approached him, he would not have jumped aside and would not have been hit by the motorbike.
The issue of legal causation is slightly more complicated. The first consideration relates to the fact that both Julie and Michael could be considered to have caused Peter’s injuries. In R v Pagett (1983) 76 Cr App R 279 it was held that a defendant’s actions do not need to be the sole or main cause of a victim’s injuries, providing that they are a substantial (remember that this means more than minimal (R v Cheshire  3 All ER 670)) causes of them. It is also relevant that Michael’s actions may be considered accidental. He did not choses to hit Peter, he could not avoid it. The next consideration is whether Julie’s actions were an operating and substantial cause of Peter’s injuries (R v Malcherek and Steel  2 All ER 422). Thirdly, the issue of whether Peter’s actions were foreseeable must be addressed (Pagett). This can be linked to whether he was trying to escape, and therefore, whether his action was within the range of potential responses.
When all of these elements are considered, it seems likely that Julie will be considered to have caused Peter’s injuries.
The issue here relates to liability for omission. There are two types of liability. The criminal damage and the injuries.
There is no doubt that Graham has a contractual duty to act. The issue therefore is one of whether his failure renders him liable. Arson is an offence under the Criminal Damage Act 1971 and therefore, it could be suggested that criminal damage type offences are ones that can be caused by omission (R v Miller  1 All ER 978). In this circumstance, Graham had a duty to protect the cars and he failed in that duty. He may therefore be found liable by omission
It is unlikely that Graham has a contractual duty to protect trespassers, but it could be suggested, because he could see how angry Peter was, that he created a dangerous situation when he hid from Peter, which he then failed to alleviate. The link is quite tenuous, but Graham could, theoretically, be found liable for Peter’s injuries on this basis, although, assault type offences cannot ordinarily be caused by omission.
This issue here returns to causation. The question is deliberately vague in respect of potentially falling into both the R v Jordan (1956) 40 Cr App R 152 and the R v Smith  2 QB 35 categories.
In order to answer this question, you will need to discuss both cases and decide whether the administration of penicillin after Peter’s injuries had almost healed was sufficient to be sufficiently potent to render Julie’s actions irrelevant or whether it was simply a continuation of the treatment that had been started earlier. If you can justify either approach, there is no wrong or right answer to this question. It is the analysis of the cases and how they are applied to the facts that is relevant.
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