•an act;
•which causes another to;
•apprehend the infliction of immediate, unlawful force.
We shall consider each of these offences separately in the forthcoming chapters; however, it remains helpful to use these offences as examples. It is essential that you understand where we find the actus reus of a certain offence, and this will be detailed clearly in Parts II and III of this text.
2.1.2Identifying the ‘three Cs’
As we identified in Chapter 1, the actus reus can be composed not simply of a defendant’s acts or conduct, but also of certain surrounding circumstances and consequences. These elements work together to create the necessary external elements of an offence (see Robinson and Grall, ‘Element Analysis in Defining Criminal Liability: The Model Penal Code and Beyond’ (1983) 35 Stan L Rev 681). For a detailed account of what each of the ‘three Cs’ means, please refer back to Chapter 1.
Using the above example in relation to common assault, the following elements of the actus reus can be identified.
Table 2.2Identifying the ‘three Cs’ in assault
| Actus reus element | Three Cs |
| An act | Conduct |
| Which causes another person | Circumstances |
| To apprehend the infliction of immediate, unlawful force | Consequences |
It is essential that these key elements are identified at an early stage to satisfy the requirement for the actus reus of the offence. Not all offences will include the three Cs; for example, conduct-only crimes (see 2.3.1) require no consequence to exist. Take the offence of theft, for example.
Table 2.3Identifying the ‘three Cs’ in theft
| Actus reus element | Three Cs |
| Appropriation | Conduct |
| Of property | Circumstances |
| Belonging to another | Circumstances |
As you will see in Chapter 11, there is no requirement for there to be a ‘stealing’ in the ordinary sense of the word for the offence of theft to exist. The defendant must possess an intention to permanently deprive the individual of their property (a part of the mens rea of the offence), but there is no requirement in the actus reus for the individual to actually be deprived of the property.
The remainder of the chapter will now go on to consider the meaning of actus reus, its extent and specific applications of the principle.
2.1.3‘Guilty thoughts’
‘Guilty thoughts’ alone cannot amount to a criminal offence. A person may often think about committing a criminal offence; indeed, a person could even intend to commit a criminal offence. However, without the presence of actus reus, no offence is committed. The actus reus may require the individual to undertake a rather simplistic act to satisfy the elements of the offence (eg for the offence of theft, an individual may be liable in circumstances where they simply touch another person’s property, so long as they did so with the dishonest intention to permanently deprive). However, there must be some sort of criminal conduct (see the ‘three Cs’ above). In summary, the law does not punish mere guilty thoughts; there must be a practical application of those guilty thoughts in order to be liable for an offence (R v Deller (1952) 36 Cr App R 184).
2.1.4Actus reus committed by a third party
An interesting question to pose at this early stage is whether a defendant can be liable in circumstances where the actus reus of an offence is committed by a third party. Ordinarily, the answer would be ‘no’; the defendant is required to satisfy the elements of the offence from his own conduct. However, there are a number of circumstances where the acts of another can form the basis of liability against the defendant. For example, an employer may be liable through the principle of vicarious liability for the conduct of their employee (see Chapter 6). Likewise, if a defendant causes the actus reus to be committed by an innocent third party (such as a child or an insane person), the defendant himself will be liable through the doctrine of innocent agency (see Chapter 4). For the majority of this text, we shall focus on the circumstances where the defendant has the relevant actus reus.
2.2Defining the actus reus
From the above, you should have noticed that the meaning of actus reus is a hotly contested matter, with academics and the courts disagreeing over the appropriate terms to be used in a given case. Two statements deserve mention.
Lord Simon in DPP for Northern Ireland v Lynch [1975] AC 653 commented in his dissenting judgment that actus reus and mens rea
have, however, justified themselves by their usefulness; and I shall myself employ them in their traditional senses—namely actus reus to mean such conduct as constitutes a crime if the mental element involved in the definition of the crime is also present (or, more shortly, conduct prohibited by law); and mens rea to mean such mental element, over and above volition, as is involved in the definition of the crime.
The most commonly cited judicial position is that of Lord Diplock in R v Miller [1983] 2 AC 161, who recounted that
it would I think be conducive to clarity of analysis of the ingredients of a crime that is created by statute … if we were to avoid bad Latin and instead to think and speak … about the conduct of the accused and his state of mind at the time of that conduct, instead of speaking of actus reus and mens rea.
The Law Commission’s draft Criminal Code of 1989 (Law Com No 177, 1989) followed the statement of Lord Diplock and advised the use of the term ‘external elements’ in place of actus reus and ‘fault element’ in place of mens rea. The Criminal Code was not, however, implemented.
Despite these criticisms, the author takes the view that such a debate is unproductive, and instead it should be accepted that the term is now used simply as a form of ‘shorthand’ for lawyers. Probably the best exposition of this point was provided by Perkins (‘A Rationale of Mens Rea’ (1939) 52 Harv LR 905), who argued:
Some years ago the mens rea doctrine was criticised on the ground that the Latin phrase is ‘misleading’. If the words ‘mens rea’ were to be regarded as self-explanatory they would be open to this objection, but they are to be considered merely as a convenient label attached to any psychical fact sufficient for criminal guilt … This includes a field too complex for any brief self-explanatory phrase, and since it is important to have some sort of dialectic shorthand to express the idea, this time-honoured label will do as well as any.