Element of an Offence: Actus Reus
1. Introduction
2. Objectives
3. Main Content
Description
- Identifying the Actus
Omission
1. Conclusion
2. Summary
3. Tutor marked Assignment
4. References
Introduction
When a person goes to the Police and complains that an offence has been committed, the police is bound to record his/her complaint. Having recorded it, the police may refuse the complaint or dismiss it summarily at the counter. He may also receive and refer it for investigation. Much depends on whether he is satisfied that an offence has been committed.
Even when the police themselves are responsible for discovering the crime, they would have been satisfied that a prohibited act or omission had taken place. That prohibited act is the conduct of the suspect or element of the proscribed act or omission. It is the actus reus.
In the course of investigation, further questions are asked. Very importantly the police try to find out whether the suspected person possessed the requisite state of mind at the time of the act or omission. That requisite state of mind or fault element is the mens rea.
Both the mens rea and the actus reus are not mutually exclusive concepts, but they are required to be contemporaneous. And this brings us to the third stage, when the police have to examine the defences available to the defendant in respect of his actions or omissions.
Essentially therefore, these are two elements of an offence, namely:
- Actus reus , and
- Mens rea
Both actus reus and mens rea must concur in order to constitute a crime. It is only in exceptional cases that the act is guilty and the mind not guilty.
The presence or absence of defences goes to issues of criminal responsibility as we shall see later.
Objectives
When you have studied this Unit, you should be able to:
- describe actus reus
- describe mens rea
Main Content
Actus reus is an overt act, an act done where is for the purpose of furthering a guilty intent.
A lawful act which is done without a guilty intent is not an offence. In the way, a wicked thought or bad mind without more may not constitute a crime
Activity
Suppose Ojo, intending to steal Amaka’s umbrella, later finds out that the umbrella, which he stole in fact is his.
Describe Ojo’s mind Describe Ojo’s act
Are Ojo’s act and Ojo’s mind congruent; do they concur; are they contemporaneous?
An overt act may be incomplete. It suffice that is constitutes a step towards the completion of an offence. Such would be the actus reus in offences of “attempt” , or ‘incitement’.
Description of Actus Reus
Smith and Hogan states:
It is a fundamental principle of Criminal law that a person may not be convicted of a crime unless the prosecutions have proved beyond reasonable doubt both:
- that D has caused a certain event (in a result crime) or that responsibility is to be attributed to him for the existence of a certain state of affairs (in a conduct crime), which is forbidden by criminal law, and
- that D had a defined state of mind in relation to the causing of the event or the existence of the state of affairs
Event or State of Affairs
The event or state of affairs from the external element of an offence and are referred to as the Actus reus.
The Event or Conduct:
The event which forms the actus reus, is external to the physical activities of the suspect. It is the result, the consequences of the defendant’s act or omission.
If D shoots and kills V, the physical act of D is shooting, the result of such shooting is the killing of V. The factual cause of the killing is D’s shooting – the actus reus.
State of Affairs:
This is a condition which has been found to exist with little or no participation from the defendant. There may even be no ‘act’ at all.
Examples are as follows:
- being found drunk in a public place
- being in possession of articles used for house breaking
- being in possession of a controlled drug
- membership of a proscribed
State of affairs type of actus reus arises often in conduct crimes, public nuisance etc.
In a charge of dangerous driving, the actus reus is itself the dangerous driving. It is a state of affairs brought about by the defendant. What the defendant did itself constitutes the actus reus.
It is obvious by now that actus reus is not just a guilty act. It is more than that. It extends to a state of affairs.
Identifying the Actus reus
Each definition of crime contains he element of its actus reus. As these are numerous kinds of offences in our statute books, it becomes impracticable to state every kind of actus reus. One has to examine the definition of an offence in order to determine the requisite actus reus.
Illustration;
Stealing has been defined as the fraudulent taking of anything capable of being stolen, or fraudulent conversion to ones own use or to the use of any other person, anything capable of being stolen, with intent permanently to deprive the owner of the thing of it.
(Criminal Code , section 383).
Under the Penal code, whoever intending to take dishonesty any movable property one at the possession of any person, without that person’s consent, moves that property in order to take it is said to commit theft.
Whoever dishonestly abstracting, diverts, consumes or uses any electricity or electric current also commits theft. See section 286, Penal Code.
In either case, the terms ‘fraudulent (or fraudulently)’ intention to permanently deprive or intending’ dishonestly refer to the state of mind (Mensrea)
Act of “taking” (conduct) the “property of another” (circumstance) pertain to actus reus
You can understand why some writer define actus reus as all the element of an offence except the mental element (mens rea)
See the following cases : Winzar v Chief Constable of Kent (1983) In any case, actus reus must be proved R v Deller (1952)
Commission
The general rule in Criminal law is that there can be no liability for omission to act, unless at the time of the omission to act, the defendant may have a legal duty to act or take positive action. A moral duty to act is not enough. One is not his brother’s keeper in Criminal law. See the case of R v Akanni, R v Speck (1977)
Note that the decision in this case would have been different if the defendants were employed as a pool attendant employed to ensure the safely of pool users.
Legal Duty:
Legal duty to do an act and liability for failure to act, may be derived from common law or statute .
A statute may impose upon the defendant a legal duty to take some positive actions. Example:
The Children and Young Persons Act 1933 imposed on parents or persons in loco parentis the duty to provide food and medical care for their wards and created the defence of willfully neglecting a child.
The Road Traffic Act imposes on motorists, a duty to report accidents to the police.
See Re A (Children (Conjoined twins: surgical Separation (2004)
Contractual Duties
The term of a contract may be such as to impose a duty on one of the parties and that other party or families have accepted or acquiesced.
See R v Pithhwood (1002) and R v Benge (1865)
Family Obligation
A parent owes his/her child a duty to feed him or her. This duty probably extends beyond parent – child and may cover the aged person over where one is responsible or whose there is established a relationship of reliance between parties: R v Instan (1893); R v Stone and Dobinson (1977)
Unwilled Acts
The effect of section 24 of the Criminal Code is to relieve a defendant from responsibility for unwilled act or from its consequences ensuring through no ones fault. Examples are:
Where something is done by the defendant’s muscles without the control of his mind (i.e when his actions are “automatic” and arise from spasms, reflex actions, sleep walking nightmares, fits etc).
This may not apply if the state of automatism is self induced as whose defendant voluntary consumes a large quantity of alcohol or other drugs. (R v Bacley (1983).
Problem of defining Actus Reus
- Different actus reus
Actus reus may differ from crime to crime This may in part be the ause or effect of conceptual clarification surrounding ‘actus reas.
Illustration:
Offence ActusReus
Murder Causing death
Burglary Breaking and entering a building or part of a building without the consent of the owner.
Stealing or theft appropriating the property of another.
- Sameness of Actus reus
Conversely, the same kind of actus reus may suffice for a number of offencs.
For example causing death is the actus reus for each of the following offences:
Murder Manslaughter Infanticide
Other homicide offences
- Situational Actus reus
Suppose, there is an arson. Somebody’s house is burnt down; causing damage to the property of another.
Damage constituted in the offence of arson and arising from the situation of arson is an actus reus.
Proof
Actus Reus requires proof:
Let us explain this duty by reference to decided cases.
R v Deller (1952)
D took his car to a trade-in. he represented that there was no money owing on it. He believed that there were payments outstanding. It looked as if he had made a false pretence. He was arrested and charged with false pretence.
The evidence before the court was that he had a loan on the car; the loan was void and in law did not exist . In essence, he did not own any debt. His representation turned out to be true, though he mistakenly believed it to be false.
The Court of Criminal Appeal quashed the defendant’s conviction on the ground that the prosecution had failed to prove that the pretence was false.
You can see that in Criminal law, you cannot be guilty of an offence simple because you believe that you are guilty. It is for your accused (prosecution) to prove the whole of the actus reus.
The defendants’ guilt in this case is in the realm of though; and that won’t do. A belief cannot make a lawful act unlawful.
R v Dadson (1850)
In this case, a constable guarded a corpse from which wood had been stolen on several occasions in the past. The constable saw the victim came out of the corpse, carrying wood. The victim had stolen the wood. The constable shot at and injured him, and was charged with shooting with intent to cause grievous bodily harm.
Court
At that time, stealing was felony only if a person had two previous convictions and it was lawful for a constable to shoot an escaping felony.
The Court found that the victim had two previous convictions but the constable not known. The constable was convicted.
The court of Criminal appeal held that an accused did not have a defence unless he was aware of the facts justifying the defence at the time of the offence.
This case is over 150 years old. Its importance lies on:
- The policy that you should ask questions first and shoot
- Authoritative proportion that circumstances of justification or excuse are part of the mental element, not actus reus of part of it
Activity
Identify the element that is absent in :
- Deller’s case
- Dadson’s case
Identify the required actus reus in
- Deller’s case
- Dad’s case
Self Assessment Exercise
It has been contended that Dell and Dadson are in all years identical, that in both cases there was no actus reus and Dadson is wrongly decided. Comment
Caveat
Dadson may be decided differently to day. In Nigeria it is legitimate to use force to effect an arrest if the victim was committing. One when he was arrested.
If he was not in the act of committing an offence, a reasonable ground for suspecting that the victim has committed a felony suffices’.
Conclusion
Separation of elements of crime into actus reus and mens rea is for convenient of exposition and discussion of crime. In practice crime is considered holistically as there may be inter mixture in that definition of several crimes.
Summary
Actus reus or the actus act is the external element of crime. It is the residual in the definition of crime after you have removed the mens rea. It may be an event, a state of affairs or the result of an act or omission. Ii is either an act or omission.
Tutor marked Assignment
- (a) Define Actus Reus
- Separate the elements of the offence of “Conspiracy” into
- mens rea
- actus Reus
- Is it true that Actus Reus differs from Crime to crime?
References
Slapper; G : The English Legal System, 7th Ed, Cavendish Publishing Ltd India
FGN: - The Criminal Code
- The Penal Code
The Constitution of the Federal Republic of Nigeria. 1999