The actus reus — sometimes called the external element of a crime — is the Latin term for the "guilty act" which, when proved beyond a reasonable
doubt in combination with the mens rea, i.e., the "guilty mind", produces
criminal liability in common law-based criminal law jurisdictions Canada,
Australia, New Zealand, England, Scotland and the United
States. In the United States, some crimes also require proof of an attendant
circumstance.
Concepts
The terms actus reus and mens rea are derived from the principle stated by Edward
Coke, namely, actus non facit reum nisi mens sit rea,1 which means: "an
act does not make a person guilty unless (their) mind is also guilty", i.e., the general test is one that requires proof of
fault, culpability or blameworthiness both in behaviour and mind. In this respect, the role
of automatism is highly relevant in providing a positive explanation of the need to
demonstrate the voluntariness of the behaviour for it to found liability. Once the actus reus has been established in a
conventional offence, there must be a concurrence of both actus reus and mens
rea (and in the United States, for some crimes, an attendant circumstance) to justify a conviction.
There are some exceptions to the general rule that a "guilty mind" must be proved. Most legislatures create so-called
strict liability offences, which criminalise the behaviour without the need to prove a
mens rea in relation to all the actus reus elements. The majority of these offences are either quasi-criminal or
relatively low fault instances of behaviour. Even in these cases, liability may sometimes still be negated if automatism is
present.
When discussing the nature of an actus reus or guilty act, legal scholars distinguish between:
- commissions, "conduct" or affirmative and positive "acts"; and
- omissions or failures to act.
- Commonwealth legal scholars add a third class, namely a state of
affairs.
The first two are subject to a requirement of causation and the third may or may not
require an element of voluntariness depending on the interpretation of the actus reus and the seriousness of the
offence.
The definition of each offence, whether common law or statutory, will always include the
factual components necessary to constitute the actus reus. Some of these facts will be:
- Contextual: this describes the time or general circumstances during which the key components were allegedly committed, e.g.,
that a vehicle was driven at night with defective lights or that injuries were caused while resisting lawful
arrest;
- The key elements considered sufficiently antisocial that they should be proscribed, e.g., driving a vehicle
dangerously. This will usually be based on one or more adverbs which qualify the conduct verbs to describe more clearly
the way in which the accused must have acted (note that the majority of the adverbs relate to the mens rea requirement,
e.g., dishonestly, maliciously, and wilfully; even the quality of "danger" is dependent on the mens rea, say, because the
defendant drove the vehicle knowing it to have defective brakes or recklessly at excessive speed, so great care must be taken in
identifying such elements specific to the actus reus).
- Consequential: this describes the result or outcome required to constitute the offence, e.g., that a victim was
injured, was deceived, or suffered loss in some material way or that the behaviour "annoyed", "offended",
"outraged", "obstructed" or "endangered" one or more identifiable individuals (see criminal jurisdiction where the terminatory theory is based on the prohibited consequences
occurring within the territory of the court).
Act
For both common law and statutory offences, establishing the detailed list of elements necessary to constitute the offence and
their scope is a matter of interpretation which may require the courts to review and revise precedents to ensure that the current interpretations match the current needs. For example, if an offence uses
a verb such as "inflict" or "enter", it is for the courts to lay down the factors by which to distinguish the forms of action
that might satisfy the requirement. Burglary requires "entry as a trespasser" so if the accused
cut a hole in a window and introduced a fishing rod into the room to catch jewellery, would this be an entry? Equally, if a
surgeon performs a life-saving operation knowing that the patient did not consent, did he or she inflict injury by cutting open
the patient as victim with a knife? At times, these decisions will have profound moral and practical implications for a
society, with the rulings of judges and the findings of
juries reflecting prevailing attitudes on issues as controversial as euthanasia and assisted suicide, sexual relationships, and the
various forms of business activities that should or should not be crimes. By altering the interpretation of the elements of a
crime, courts may in effect criminalise behaviour retrospectively.
Taking a more everyday example, most legislatures create offences which regulate road traffic. Although humans and the words
used to require a test of whether particular driving was or was not dangerous have remained remain relatively unchanging,
technology has steadily evolved. Many cars are now fitted with sophisticated computerised systems to help control the vehicle
while braking and so reduce the risk of skidding. If a car does skid and injures a pedestrian because, in all the circumstances,
it was travelling at an excessive speed, should there be a variable test of dangerousness depending on whether the particular car
was fitted with one or more of the additional safety devices? The difficulty is that the speed at which it would be dangerous to
drive an unmodified car might be entirely safe in the same road conditions in a car with the relevant devices installed. The
answer is that each court will make a decision based on the particular set of facts before it but will always require a certain
minimum level of skill from the driver. Hence, an inexperienced driver cannot use the lack of skill as an excuse. Conversely,
whether a person with vast experience as an international rally driver should show a greater than average level of skill in
ordinary driving conditions is usually only a matter to be considered in sentencing.
Omission
- See main article omission (criminal)
State of affairs
A number of offences are defined as a situation or context, e.g., "being found within enclosed premises" and "being drunk in
charge of a motor vehicle". These are usually strict liability and a conviction can be sustained even though an accused did not
act in a wholly voluntary manner. Hence, if a person falls asleep in a quiet corner of a library and is locked in by inadvertent
staff, the offence will be committed, but the relatively low level of fault could be reflected in the sentence. In Martin v
State (1944) 31 Ala App 334 17 So 2d 427. Martin was arrested at home and taken onto the highway by police officers, where he
showed signs of being drunk. His conviction for being drunk on a public highway was quashed because his arrival on the highway
was not voluntary. Whereas in R v Larsonneur (1933) 24 Cr. App. R. 74 Larsonneur, a French citizen, was served with an
order requiring her to leave the UK and not return. Instead of returning to France, she travelled to Ireland, and was deported
back to England where she was arrested for "being found in the United Kingdom". The Court of Criminal Appeal held that the
involuntary circumstances under which she was returned were "perfectly immaterial". In Winzar v Chief Constable of Kent
(1983) The Times, 28 March 1983. where the charge was one of being "found drunk on a highway" contrary to s12 Licensing Act 1872,
Winzar had originally been found drunk in a hospital and asked to leave. When he failed to do so, police officers removed him to
their patrol car, which was parked on the highway outside, and then charged him with the offence in question. Upholding the
conviction, Goff LJ. pointed out that a distinction would otherwise have to be drawn between the drunk who leaves a restaurant
when asked to do so and the drunk who is forcibly ejected after refusing to leave. If both are arrested in the street shortly
afterwards, it would be wrong for the courts to regard the former as guilty and the latter as not. But the U.S. approach of
abuse of process might prevail if the police were to drag a person from his own bed and
into the street before charging him with being found drunk on a highway.
References
1 Coke's Institutes, Part III (1797 edition) chapter 1, folio 10.
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