Actus Reus

Problem Q Structure

Step 1 - State definition of crime + derive the actus reus

Step 2 - Act or an omission?

Act

Is the act voluntary?

Continuing act?

Omission -

Is it an exception to voluntary act req?

Different ways of a duty arising

1. Contract

2. Familial relationships

3. Assumption of responsibility

4. D creates a dangerous situation \

5. Public official

6. Statute

What are the hard cases?

1. Assault

2. Medical treatment

Step 3 - Is it a result crime?

Step 5 - Does it fall under situational liability? (Dangerous Dogs Act 1991)

Voluntary act

Bratty

Continuing act

Fagan

Miller

Omission - general rule

Academic → Moore

C.f. French law

Contractual DTA

Pittwood

Familial DTA

Gibbins and Proctor

Hood

Stone and Dobinson

Evans

Sheppard

DTA via assumption of responsibility

Instan

Nicholls

Stone and Dobinson

Ruffell

Bowditch

DTA because D creates a dangerous situation

Miller

Evans

Kennedy

Santa Bermudez

Bowler

DTA because D is a public official

Dytham

DTA via statute

Road Traffic Act s170

Criminal Justice and Courts Act

Domestic Violence, Crime, and Victims Act

Assault

Fagan

Santa Bermudez

Medical treatment

Airedale v Bland

Situational liability

Elvin

Robinson

Larsonneur

Essay

1. How do we differentiate between acts and omissions? What are some approaches suggested by academics? (i.e. willed muscular movement M. Moore, and critiques by Simester).  

Moore: “Act = willed muscular movement; a bodily movement caused by a volition, which underpins the voluntary act requirement and structures the act/omission line.” 

Simester: “Moore is too thin and mechanical; voluntariness is about rational, reasons‑responsive agency and the moral significance of what is done, not just willed muscle movements.” 

2. How clear is the distinction between acts and omissions and what are the implications of this? (See difficult cases, such as Assault cases, or Medical cases concerning the withdrawal of artificial nutrition and hydration).  

 

3. Has the reasoning of the courts when assessing the existence of a duty to act been based in law, or has it been influenced by other considerations (ie Stone and Dobinson, Airedale v Bland)?  

Courts dress their reasoning under ‘recognised duty categories’ 

Stone and Dobinson -> by moral expectations of familial care(Bibblings critique Dobinson ‘common sense’ imposing duty + Ignoring privatised resp just to blame someone + Limits on capacity), and in  

Airedale v Bland -> by medical ethics and the patient’s best interests, showing that the duty to act is not a purely legal construct 

4. How transparent is the reasoning of courts and how clearly do they identify the different factors that influenced their decision, as well as the weight attached to each of these factors? (see Ruffell, Bowditch, Evans)  

Courts are only partly transparent: they state there is a duty, but they rarely spell out every factor or the weight of each. 

Ruffell -> Left friend to die - But they don’t clearly say: was it because of friendship? Because he’d started to help? Because of public expectations? They mix everything together. 

Bowditch -> Watched her drown + went to the club – Court says yes there is duty but does not specify under what grounds – Could be assumption of resp, relational resp, creation of dangerous situation – Crosby (2018) highlights the confusion and need for Law Commission reform to establish proper limits on common law omissions – ‘Lack of transparency and clarity’ 

Evans -> Sister supplies drugs, girl overdoses - Here the court says more clearly: duty comes from creating the risk (supplying the heroin), But it still does not say exactly how important the family relationship is, or the victim’s own role 

Moral outrage in Ruffell and Bowditch. 

5. What are the subsequent implications for the law on omissions? Are we seeing an expansion of the reach of criminal law when it comes to omissions liability?  

Core rule on omissions – No good Samaritan duty – Only arise from recognised categories (list)  

Exceptions 

Flexibility introduced – Continuing act (Miller, Fagan) 

Strict liability omissions + examples  

Overall yes widening, but still no good Samaritan duty (floodgates, toxic paternalism and autonomy etc) 

6. What is situational liability and how is it an exception to the general rule that the actus reus should consist of voluntary conduct? What are the issues with offences of situational liability (see R v Elvin, R v Robinson Pierre, R v Larsonneur)? 

Larsonneur, Elvin – strong examples of state‑of‑affairs liability 

Robinson‑Pierre – modern attempt to re‑anchor such offences in voluntary conduct 

• Situational liability can look like “bad luck liability”, undermining the idea that conviction should track culpability. 

• They allow conviction without meaningful choice, raising serious concerns about fair labelling, justice, and moral blameworthiness (Larsonneur, Elvin) 

Law Commission (among others) has called for the term actus reus to be replaced with ‘external elements’ and mens rea with ‘fault elements’ to reflect better their true meanings.  

Lord Diplock ‘avoid bad Latin’