1.9Further reading
Ashworth, ‘Is the Criminal Law a Lost Cause?’ (2000) 116 LQR 225.
Ashworth, ‘Punishment, Compensation and the State’ (1986) 6(1) OJLS 86
Ashworth, and Blake, ‘The Presumption of Innocence in English Criminal Law’ [1996] Crim LR 306.
Ashworth, Sentencing and Criminal Justice (6th edn, 2015).
Baker, ‘The European Union’s “Area of Freedom, Security and (Criminal) Justice” Ten Years On’ [2009] Crim LR 833.
Bingham, ‘A Criminal Code: Must We Wait Forever?’ [1999] Crim LR 694.
Chalmers and Leverick, ‘Fair Labeling and Criminal Law’ (2008) 71 MLR 217.
Ferguson, ‘Codifying Criminal Law: The Scots and English Draft Codes Compared’ [2004] Crim LR 105.
Gardner, ‘Reiterating the Criminal Code’ (1992) 55 MLR 839.
Glazebrook, ‘Should We Have a Law of Attempted Crime?’ (1969) 85 LQR 27.
Hare, ‘A Compelling Case for the Code’ (1993) 56 MLR 74.
Hirsch and Roberts, ‘Legislating Sentencing Principles: The Provisions of the Criminal Justice Act 2003 Relating to Sentencing Purposes and the Role of Previous Convictions’ [2004] Crim LR 639.
Husak, ‘The Criminal Law as Last Resort’ (2004) 24(2) OJLS 207.
Lamond, ‘What Is a Crime?’ (2007) 27 OJLS 609.
Murphy, ‘The Principle of Legality in Criminal Law under the European Convention on Human Rights’ (2010) EHRLR 192.
Roberts, ‘Taking the Burden of Proof Seriously’ [1995] Crim LR 783.
Smith, ‘The Human Rights Act and the Criminal Lawyer: The Constitutional Context’ [1999] Crim LR 25.
Stevenson and Harris, ‘Simplification (of the Criminal Law) as an Emerging Human Rights Imperative’ (2010) 74 J Crim L 516.
Williams, ‘The Definition of a Crime’ (1955) 13 CLJ 107.
•The criminal law refers to the study of criminal liability.
•Liability simply refers to the requirements that need to exist in order for a person to be guilty of a criminal offence.
•The criminal law functions to protect society, enforce rules and punish rule-breakers.
•The criminal law is built on a number of principles, including autonomy and welfare.
•Substantive criminal law must be distinguished from procedural law and evidential law.
•The elements of any offence are made up of the actus reus, mens rea and a lack of defence.
Essay
‘The criminal law is designed to promote individual autonomy and fair warning. In its present state, it fails in its task’.’
Critically consider this statement in light of the so-called ‘principles’ of criminal law.
chapter 2 Actus Reus: The External Element of Crime
study points
After reading this chapter, you will be able to understand:
•what elements are required to form criminal liability
•the term actus reus and explain how it applies in criminal cases
•the circumstances when a failure to act (or omission) may result in criminal liability
•the operation of causation in criminal law
•the principle that the defendant must ‘take his victims as he finds them’
•how to critique the law of actus reus with reference to reasoned and thoughtful arguments.
2.1Introduction to actus reus
As you will now know, from Chapter 1, the actus reus (plural: actus rei) is a legal term describing the external elements of a criminal offence (ie anything that is not the mens rea). It is concerned not only with the acts and conduct of the defendant, but also with certain surrounding circumstances and end results. Although the actus reus can be characterised as such, this does not mean that the actus reus is standardised. Each criminal offence bears with it a separate and distinct actus reus. Of course, this does not mean that a particular act or conduct on the part of the defendant can fulfil the actus reus of one crime but not the other. This ultimately depends on the circumstances or result that follows.
Suppose Jack shoots Jill. Should Jill survive, Jack is likely to have part of the actus reus for grievous bodily harm (GBH). Should Jill die, Jack has the same part of the actus reus for murder. The point is that the defendant’s behaviour can be characterised as the same in both cases, but the offence charged against the defendant will ultimately depend on the consequence of the defendant’s actions.
2.1.1Finding the actus reus
We find the actus reus and know what the actus reus of an offence is by observing the common law and statute.
Table 2.1Finding the actus reus
| Example of offence | Type of offence | Where can the actus reus be found? |
| Murder | Common law | The definition long cited is that of Sir Edward Coke CJ who defined murder as the ‘unlawful killing of a human being under the Queen’s peace with malice aforethought, express or implied’. The actus reus in that definition includes: •unlawful killing; •of a human being; •under the Queen’s peace. |
| Theft | Statutory | The definition is provided in s 1 of the Theft Act 1968 as the dishonest appropriation of property belonging to another with the intention of permanently depriving the other of it. The actus reus in that definition includes •appropriation; •of property; •belonging to another. |
There are, of course, certain offences that do not fall neatly into these categories. Take, for example, the offence of common assault.
According to DPP v Taylor; DPP v Little [1992] QB 645, common assault is a ‘statutory offence’. This means that when charged with an offence, the defendant would be charged ‘contrary’ to s 39 of the Criminal Justice Act (CJA) 1988. However, s 39 does not provide a definition of assault; rather it simply provides:
Common assault and battery shall be summary offences and a person guilty of either of them shall be liable to a fine not exceeding level 5 on the standard scale,