ACTUS REUS REVISION NOTES

THEORY

1) Omissions

Arguments against criminalising omissions

a) It cannot be said that an omission causes a result (M.Moore). But for causation test will
show that, had D not failed to act, same consequence would have occurred at the same
time and the same place; the omission hence failed to alter the status quo.
- Critique: omissions liability can be supported by using a distinction between normal
and abnormal events if someone is under a duty to act and fails to do so, this will
be regarded as abnormal and thus a cause of result; e.g. a father walks past his
drowning child this is abnormal (Hart and Honore).
- Critique of Hart and Honore: ambiguous meaning of normal creates problems.
Does that mean that to be normal an actions needs to be statistically likely or that its
ought to occur? If the latter, can we then say that criminal law is punishing people
for what they are not rather than for what they did?
- Critique of above: remember that the above merely represents an argument that
omission cannot be said to have caused a result; however, this does not mean that
omissions should not be punished. For example, such an argument could not be
used against a statute which criminalised failure to help someone you are
reasonably expected to help.

b) Dressler refers to these as Bad Samaritan laws. He argues that here it punishes the
bystander for being selfish or whatever else bad person which caused not to come to
the aid of the person in need. Criminal law should punish individuals for their culpable
acts, but not for their generally bad character. It is the wrongful conduct and not the
individuals status as a bad person or his bad thoughts that justify criminal intervention;
BS laws may violate this principle. At a minimum, there is a risk that a jury will punish the
person for his evil character rather than for his conduct in specific circumstances.
- There is an inherent problem with punishing people for their not-doings rather than
wrongdoings; in a wrongdoing, it is much easier to determine the MR (and to see
why the person has acted the way he did), while it is far harder to determine why
the person did not act.

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 - The distinction between actions and non-actions demonstrate a vagueness problem.
BS laws compel people to make the world (or at least a part of it) better rather than
punishing those who make it worse. There is no identifiable criteria in BS laws;
however, commission-by-omission, as in English law, do identify some form of
criteria (e.g. assumed duties, relationships between people, contractual duty etc.)

Arguments in favour of criminalising omissions

a) The line between an act and an omission is too fine a line to place any great weight on.
This argument also received some judicial support in Bland.
- Critique: drawing a distinction between 2 concepts is always problematic and has
some borderline cases, and this is no different here. The distinction is of basic
morality taking food away from someone is not the same as failing to provide it.

b) Argument based on the concept of social responsibility. Ashworth argues that a

community may be regarded as a network of relationships which support one another
by direct and indirect means. All individuals in that community have basic rights (e.g.
right to life) and it is arguable that each individual life should be valued in the
community; hence, there is a good case to be made for encouraging co-operation at
least at a minimal level of the duty to assist persons in peril, as long as that assistance
does not endanger the person rendering it, and a case can be made for re-enforcing this
duty by criminal sanctions. A level of social co-operation and responsibility is both good
and necessary for the realisation of individual autonomy....a general moral and legal
recognition of peoples vital interests...It is the element of emergency which heightens
the social responsibility in rescue cases and it is this immediacy that generates the
obligation....It should be only arise in easy rescue cases and should give way to
individuals right to self-determination (e.g. if a person wishes to be left alone).

2) Causation do consequences matter?

Arguments against holding people responsible for consequences of their actions

a) Consequences of our acts are beyond our control and simply a matter of luck. It is only
fair to punish people for what they actually do and not for what is beyond their control

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 (i.e. consequences). The criminal law should thus punish acts which endanger others,
whether any harm resulted being simply a matter of chance (Ashworth).
- Critique: those who argue that consequences should not matter are a breed of
academia that exists only in academia and probably will continue existing only there.
No jurisdiction actually recognises such an approach (Robinson).

Arguments that consequences do matter

a) They affect the reaction of the actor and the passers-by. E.g. if A is driving dangerously and
kills a child different emotions will be felt by all involved from where A just misses the child.
The fact that such reactions are near universal indicates they reflect a moral truth that
consequences do matter and people feel responsible for the consequences of their actions.
Being responsible for our actions and the consequences of those actions is clearly
fundamental to our common experience and the way the society works.
- Critique: arguments against this state that such emotions merely reflect the distress
at the harm suffered by the victim rather than judgments of Ds responsibility.

b) Gardner argues there is an important difference between action reasons and outcome
reasons against doing something. The former is an argument against acting, whatever the
consequences, while the latter is an argument against acting because bad consequences
flow from that act. Hence, consequences do matter if they provide a reason against in a
particular way.

c) Consequences are important to humanity it is a part of treating people as human that both
the good and the bad consequences of their actions are taken into account (Honore).

3) What is the coherent approach to causation?

i.e. to what extent is causation a question or fact and to what extent is it a question of
judgment?
- In causation cases are we asking did D cause the result or should D be responsible
for this consequence ?

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a) It is argued by those who examine the case law on causation that, rather than applying any
general principles, the judge simply considers what he thinks to be the common sense
answer on causation and declares that to be the legal position. Hence, it is not possible to
set any guiding principles or rules.

b) Others argue the contrary to above and attempt to develop the principles.

i) Causal minimalism factual causation should be the guiding principle/rule of

criminal law on causation.
- Critique: isnt it too wide? No, because the MR should be the deciding factor here. If
the actor does not have the MR, he cannot be guilty. However, what about strict
liability, where no proof of MR is needed?

ii) Hart and Honore suggest placing greater weight on the ordinary meaning of
causation; focus on the difference between normal and abnormal effects. Only
abnormal conditions can be causes; normal ones cannot. Normal conditions are
those which are present as part of the usual state or mode of operation of the things
under inquiry. The free, voluntary and informed act of a human-being will be
regarded as an abnormal act which breaks the chain of causation and takes over
responsibility for the resulting harm.
- Critique: causation does not have a normal usage of the word from which the legal
causation could draw its meaning. The emphasis on the distinction between normal
and abnormal events or conditions is not good, since the terms are so vague as to
easily permit a judge to use value judgments when considering whether the cause
was normal or not (M.Moore)

iii) Reasonable foreseeability D causes reasonably foreseeable result of his actions.

The standard of reasonable foreseeability gives expression to a powerful moral
intuition; i.e. it is unfair to ask others to answer for consequences of their actions
which we could not have reasonably expected them to consider in thinking what
actions to perform of refrain from performing.
- Critique: the test will not operate fairly in think skull rule cases, which even the
author of the above argument has singled out as exceptions to the test.

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iv) Natural consequences D is responsible for natural consequences of his actions.
Key differences from c) test above is that in reasonable foreseeability test we look
at the issue from Ds point of view, at the time when he acted (i.e. could D have
foreseen the result?); while the natural consequences test looks back from the injury
inflicted at the V and attempts to find out the most (legally) significant cause. Moore
supports this approach by arguing that D should be responsible for proximate cause
but not for freakish results.
- Critique 1: terms natural and proximate are too vague to be useful
- Critique 2: when making causation assessments the courts do (and should) take into
account normative issues (i.e. of how people should have behaved) (Tadros).
v) Causation approach is too narrow criminal law with its assumption that
individuals are responsible for their actions is placing undue focus on one individual
and ignoring the wider exercise if powers within society. Power structure, political
assumptions, economic inequality and cultural and social factors all play a role in
influencing people to commit crime. The laws approach enables the problem o be
seen as the result of the actions of a few evil people rather recognising it as a
product of an unequal and excluding society. (A Norrie)