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Cause and the Contemporaneity of Actus Reus and Mens Rea

Published online by Cambridge University Press:  16 January 2009

G. R. Sullivan
G. R. Sullivan
Affiliation:
Senior Lecturer in Law, University of Durham.
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Extract

A court may be confronted by a lack of temporal coincidence between actus reus and mens rea but nonetheless impose liability because on analysis the coincidence requirement is held to be satisfied in form or in substance. The situation may arise in two ways. There may, as in R. v. Miller,1 be initial blameless causal responsibility followed by a culpable failure to avert or mitigate the consequences of the initial conduct. Or, as in R. v. Le Brun,2 there may be conduct with the mens rea required for the offence charged, but to no relevant causal effect, followed by a non-culpable causing of the actus reus of the offence. It will be contended that in these two categories of case blameless causal agency is apt to play too prominent a role in the imposition of liability for what may be very serious offences.

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Articles
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The Cambridge Law Journal , Volume 52 , Issue 3 , September 1993 , pp. 487 - 500
Copyright
Copyright © Cambridge Law Journal and Contributors 1993

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References

1 [1983] 2 A.C. 161.Google Scholar

2 [1992] 1 O.B. 61.Google Scholar

3 For a valuable discussion of the source and nature of such guilt feelings see Morris, Herbert, On Guilt and Innocence (1976), chs. 3 and 4.Google Scholar See also Silber, “Being and Doing: A Study of Status Responsibility and Voluntary Responsiblity (1967–1968) 35 Chicago Law Review 47 for an argument that such “status guilt” should be reflected in the criminal law.CrossRefGoogle Scholar

4 Hart, H.L.A., Punishment and Responsibility (Oxford 1968), p. 131.Google Scholar

5 “We believe that the authorities can no longer live together, and that the reason lies in a collision between two ideas, logically and morally sustainable in themselves, but mutually inconsistent, about whether the unforeseen consequences of a wrongful act should be punished according to the intent (R. v. Cunningham) or the consequences (R. v. Mowatt) … we have found it hard to reach a conclusion about what the cases decide. We should have been glad to proffer a few simple formulae, stripped of jargon, with which judges could tell juries how to weigh up the facts. In the end we think it better not to attempt any such task, having no confidence of achieving a result which would be at once doctrinally accurate and of any practical value” per Mustill, L.J. in D.P.P. v. Parmenter [1992] 1 A.C. 699, 712.Google Scholar

6 English criminal law lacks any general offence of reckless endangerment similar to Model Penal Code, s. 211.2.

7 For an exhaustive examination of the role of chance in criminal liability and for a proposal to construct a criminal law free of its influence, see Schulhofer, , “Harm and Punishment: A Critique of Emphasis on the Results of Conduct in the Criminal Law” (1973–1974) 122University of Pennsylvania Law Review 1947.Google Scholar For a recent defence of the role of luck in determining liability see Honoré, , “Responsibility and Luck” (1988) 104 L.Q.R. 530.Google Scholar See too Williams, Bernard, Moral Luck (Cambridge 1981), ch. 2.CrossRefGoogle Scholar

8 Manslaughter requires objective recklessness in relation to some physical harm: R. v. Seymour [1983] 2 A.C. 493.Google Scholar But see now R. v. Prentice (1993) 143 N.L.J.R. 850.Google Scholar Malicious wounding requires subjective recklessness as to some physical harm; assault occasioning actual bodily harm requires no culpability as to causing harm: R. v. Parmenter [1992] 1 A.C. 699.Google Scholar

9 See note 18 below and associated text.

10 [1983] 2 A.C. 161.Google Scholar

11 It is stressed that such liability is triggered by blameless causal agency: Lord Diplock stated in terms in Miller that nothing hinged on any criticism that could have been made of D's behaviourc in trespassing and falling asleep with a lighted cigarette ([1983] 2 A.C. 161, 178)Google Scholar. Much inadvertent damaging of property will, of course, constitute reckless conduct following Metropolitan Police Commissioner v. Caldwell [1982] A.C. 341, underscoring the relevance of Miller to initially blameless conduct. It may be doubted whether Miller applies to justified conduct in contradistinction to merely blameless conduct. Say D renders P unconscious in the course of exercising a right to self-defence. He is aware that P's condition requires medical treatment. It seems unlikely that D will be criminally liable in respect of any adverse consequences arising from the failure to obtain treatment for P.Google Scholar

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13 [1982] Q.B. 532, 530 (C.A.).Google Scholar

14 On the transposition required see text at note 28.

15 Even where the reaction on the part of D is pleasure at the plight of P, it is hard to see, save in a metaphorical sense, how this constitutes an "adoption” by inaction of his earlier conduct.

16 [1982] 2 A.C. 161, 179.Google Scholar

17 Lord Diplock, speaking for the House (ibid.) saw both theories as “identical” in terms of the outcomes they produced. However, it seems that Miller may not be applicable where an offence explicitly requires an “act”: R. v. Ahmad (1986) 84 Cr.App.R. 64. Under the adoption theory liability would seem, casuistically, to be for an “act” rather than omission. And see text infra.Google Scholar

18 Clause 23 of the criminal code proposed in Law Com. No. 177 (at p. 53) provides that the fault element required for a “result” crime may be constituted by awareness on the part of D that a result has occurred and may continue or may occur as a result of his act coupled with a failure to take reasonable steps to prevent the result continuing or occurring “with the fault required”. The “fault required” will usually be intent or recklessness. Clause 24 of the criminal code set out in Law Commission Consultation Paper 122 (at p. 49) is to similar effect. On the adaptation of these terms when applied to omissions sec text at note 28.

19 The example of the hotel room has been chosen to illustrate (1) how initial conduct clearly free of any blame whatsoever can give rise to the duty to act and (2) to raise a query as to whether in such circumstances Miller could be undercut by an argument to the effect that switching on the light was the mere occasion of a fire attributable legally to the defective maintenance of the hotel's electricity wiring. Such an argument would be available in many situations where the agent's initial conduct was entirely innocuous. For a discussion of the distinction between legal causes and mere precipitating conditions see Hart, H.L.A. and Honoré, Tony, Causation in the Law (Oxford 1985) ch. V.CrossRefGoogle Scholar

20 Green v. Cross (1910) 103 L.T. 279Google Scholar; Fagan v. Metropolitan Police Commissioner (1969) 1 Q. B. 439.Google Scholar

21 For critiques see Harris, J., Violence and Responsibility (1980)Google Scholar; Woozley, A.D., “A Duty to Rescue: Some Thoughts on Criminal Liability” (1983) 69 Virginia L.Rev. 1273;CrossRefGoogle ScholarAshworth, A.J., “The Scope of Criminal Liability for Omissions” (1989) 105 L.Q.R. 387.Google Scholar

22 As, of course, is currently the case in English law.

23 See note 21 above. For a forceful defence of the contrary position see Williams, G., “Criminal Omissions—the Conventional View” (1991) 107 L.Q.R. 86.Google Scholar

24 As contended for by Ashworth, , op. cit. note 21Google Scholar and Woozley, , op. cit. note 21.Google Scholar

25 Adopting the position that philosophy cannot provide conclusive verification of moral distinctions: Williams, B., Ethics and the Limits of Philosophy (London 1985)Google Scholar, ch. 8, criticised by Scanlon, T.M., “The Aims and Authority of Moral Theory” (1992) 12 O.J.L.S. 1.CrossRefGoogle Scholar

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27 Indeed it may lead to the worst case conclusion. In his direction to the jury in Arthur's case Farquharson J., by utilising the act/omission distinction simpliciter, effectively ruled that the termination of severely handicapped, parentally rejected neonates take must take the form of withdrawal of sustenance with symptoms of distresss unallcviated by effective drug therapy.

28 (1918) 13 Cr.App.R. 134.Google Scholar

29 Termed “distinct duties” by Honoré, in “Are Omissions Less Culpable” in Essays for Patrick Atiyah (eds. Cane, and Stapleton, , Oxford 1991) 31 at pp. 42–47.Google Scholar

30 [1977] Q.B. 354.Google Scholar

31 The defendants were of low intelligence and incapable of such tasks as the use of a telephone.

32 [1992] 1 OB. 61.

33 Wells, C., “Goodbye to Coincidence” (1991) 141 N.L.J. 1566.Google Scholar

34 R. v. Thabo Meli [1954] 1 W.L.R. 228 (P.C.).Google Scholar

35 R. v. Church [1966] 1 Q.B. 59.Google Scholar

36 As was convincingly argued by G. Marston, “Contemporaneity of Act and Intention of Crimes (1970) 86 L.Q.R. 208Google Scholar. See too S. v. Masilela 1968 (2) S.A. 558(A).Google Scholar

37 Supra note 34.Google Scholar

38 Supra note 35.Google Scholar

39 The facts of Le Brun call to mind an example given by Professor Williams, Glanville(Textbook of Criminal Law 1st ed., 1978 at 220) to illustrate the point that a causation approach cannot resolve all “coincidence” problems. In his example P is rendered unconscious by a group of men who assume that they have killed him and he is then actually killed by being thrown by them from a cliff.Google Scholar

40 [1992] 1 Q.B. 61, 68.Google Scholar

41 Hart, and Honore, , op. cit. note 19, 351–362.Google Scholar

42 [1992] 1 Q.B. 61, 71. Lord Lane, C.J. expressly confined the decision to manslaughter which is odd given that the court approached the matter as one of causation.Google Scholar

43 Ibid.

44 Supra at 40. Where the subsequent event is medical treatment it seems that only the fact of treatment rather than its appropriateness need be foreseeable: R. v. Cheshire [1991] 1 W.L.R. 844, unless the facts are very exceptional.Google Scholar

45 Unless the third party intervention, though benign, can be described as “so independent” and “so potent” a cause of death: R. v. Cheshire (supra).

46 See Marston, , op. cil. note 36.Google Scholar

47 Principally Thabo Meli and Church above.

48 [1981] 1 W.L.R. 705.Google Scholar

49 49 Particularly if his motive in picking up his wife and taking her home was to avoid detection by any patrolling officers.