Chapter 2 - Objective elements of the offence (Actus reus)

Question 1

What are the 3 objective elements of the actus reus of an offence

Answer 1

I. conduct = element of the crime
II. circumstances = makes the act wrongful
III. consequences = e.g. manslaughter –> death of another

Question 2

Framework Bipartite

Answer 2

1. Actus reus
   - was there an act/omission?
   - was it unlawful?

2. Mens rea 
descriptive aspect:
- was there intention/negligence?
normative element: 
- was he to blame?

Question 3

Framework Tripartite

Answer 3

1. Offence description = legal elements of the offence
   a) objective element = Actus reus = was there an act/omission/conduct/consequences/circumstances
   b) subjective element = Mens rea = was there an intention/negligence/fault element (descriptive aspect)
2. Unlawfulness = wrongdoing
3. Blameworthiness (normative element)

Question 4

Actus Reus (Criminal conduct)

Answer 4

Traditionally = a willed bodily movement
Excluded are: thoughts, feelings, desires, ideologies
Furthermore: All conduct not controlled by the will e.g. reflexes, spasm, sleepwalking

Question 5

Conduct (GER/NL)

Answer 5

1. fulfill the legal elements of an offense
2. be unlawful and
3. there must be guilt on the part of the defendant

If 1 is fulfilled then 2 and 3 are presumed unless there are justifications or excuses

Question 6

Theories of conduct - the causal theory of action (the ghost in the machine)

Answer 6

• criminal act consists a willed bodily movement
• based on 19th century dualist concept => man as creatures of animus + corpus = human will as the cause of physical action as willed bodily movement
• theory is in the English penal system still accepted
• used to be the prevalent theory in GER + NL
• the content of the will plays no role

Question 7

Theories of conduct - The theological theory of action

Answer 7

• the content of the will (aim) constitutes an element of the very concept of action
• human conduct is “seeing” not blind
• nature + meaning of human action cannot be understood unless one also knows the actor’s purpose e.g copying banknotes: joke vs. trying to betray people

Problem:

• omissions do not fit the description of conduct bc. of strict focus on human behavior and willed bodily movements
• description of conduct (willed bodily movement) is unworkable by corporate wrongdoing

Question 8

Theories of conduct - The social theory of action

Answer 8

• conduct needs to be interpreted in social context in which the act occurred (is not fixed and social negotiated) = determines its relevance for the attribution of criminal liability
• prevails in GER + NL penal systems
• In E more and more acceptance in the evaluation of actus reus

Problem:
- By omission/negligence liability it is difficult to claim that the person acted in a goal orientated way

Question 9

Purpose of omission liability

Answer 9

Imposes basis for criminal liability (especially in a risk society)

Question 10

On what are the duties of care based?

Answer 10

1. Close personal relationship
   => duty for parents
   => spouses in medical need
   => no duty for adult siblings + friends (but adult siblings can be creation of dangerous situations)
2. undertaken duties/mutual trust
3. specific qualities of offender (e.g doctor)
4. ownership or responsibility = source of danger
5. creation of dangerous situations

Question 11

Good samaritan offences

Answer 11

• should we be obliged to act?
• No statutory offence in E/Wales bc. of individual autonomy
• GER: § 323c StGB = Unterlassene Hilfeleistung
• NL: Art. 450 DCC = omission to effect an easy rescue

Question 12

Good samaritan offences - difference GER/NL

Answer 12

• G: concept of legality is much more strictly

- warns citizens that omission can be bases for criminal liability

Question 13

Commission by Omission/Improper Omission

Answer 13

• NL + ENG = based on case law
• GER: § 13 StGB
• NL: Art. 307 DCC killing = also letting die
• principle of legality requires that we have clear and strict interpretation that the scope of liability is defined
• is the bystander not helping a person in need criminal liable for (negligent) manslaughter
• Duties of care

Question 14

Commission by Omission GER

Answer 14

• statute

- Distinction between supervisory and protector

Question 15

Commission by Omission NL

Answer 15

• criminal liability can arise from failure to act

- unproblematic, flexible act requirement

Question 16

Commission by Omission

Answer 16

• accepted only where the general duty outweighs the individual autonomy
• interpretive approach

Question 17

Dennis case 2007

Answer 17

• Close personal relationship Parents
• Parental duty also covers abuse cases
• Parents have strong duty to protect

Question 18

R v Hood 2003

Answer 18

• Close personal relationship spouses in medical need = matrimonial duties

Question 19

R v Evans 2009

Answer 19

• Creation of dangerous situation

- No duty for sister that overdosed due to close relationship but for creation of dangerous situation

Question 20

Lewin v Crown Prosecution Service 2002

Answer 20

• Friendship as the duty of care
• No duty based on Friendship => death not foreseeable
• But creation of dangerous situation possible

Question 21

Jomanda Case (NL) 2009

Answer 21

• specific qualities
• not liable bc. no medical profession
  Employers, civil servants, doctors: conduct has to be judged by the standard of a reasonable person from the same profession

Question 22

Act/Omission distinction

Answer 22

Criminal liability requires a positive act or an omission

a) pos. action + mens rea etc. = liability
b) omission + mens rea etc. + violation of duty of care = liability

Question 23

Different doctrinal approaches

Answer 23

I. Ontological approach
=> Focus on (absence of) bodily movements (but while we fail to act we may do lots of other things)

II. Normative approach
=> is the emphasis of the reproach based on action or omission (value judgement which cannot be reviewed objectively)

III. Semantic case by case approach
=> can conduct best be described as act or omission? No obj. criteria = digression of courts

Question 24

Switching of life support England

Answer 24

N.H.S. Trust v Bland 1993

may doctors lawfully discontinue treatment?

HoL:

• Switching of life support = omission to treat
• focus on doctor’s duty of care
• doctor’s do not have a duty to continue treatment that is no longer in the patient’s best interest

Problem: If switching life support is considered to be an act then
=> doctors would be liable for murder
=> distinction of act/omission is arbitrary
=> ethical debate: individual autonomy vs sanctity of human life

HoL: If an intruder (Eindringling) switches off life support = act => liability for murder will arise

Question 25

Switching of life support GER

Answer 25

BGH NSt 2010, 630 Paradox: How can one conduct be an act & an omission? => If it's an omission by doctors it must be an omission by everyone else? => therefore decision of BGH: switching off life support = act => But conduct is justified due to "withdrawal of treatment" defence = therefore not an wrongful act

Question 26

Which crime distinctions does it give?

Answer 26

I. conduct crimes | II. result crimes

Question 27

What are conduct crimes?

Answer 27

- crimes of harmful actions | - wrongdoing is inherent to the conduct => no result required e.g rape/theft

Question 28

What are result crimes?

Answer 28

- crimes of harmful consequences | - connecting a certain conduct with a certain result = causal link e.g homicide, arson (Brandstiftung)

Question 29

Why does causation matter

Answer 29

- protection of individual autonomy - connecting D's wrongful conduct with the occurred harm Problems: - causing or accident? - Problem of breaking the chain of causation by unforeseen/extraordinary events or by foreseeability

Question 30

Conditio sine qua non

Answer 30

- "but for test" - conduct in question must have been an indispensable condition for the result - no causal relationship if the result would have occurred without conduct - assumption for factual cause: notion of causality applied in natural science would apply in law as well but scientists starting point = lawyer's end point - In science the cause leads to a hypothesis which has to be experimentally confirmed <=> in criminal law confirmation is not required and stops with a formulation of a hypothesis

Question 31

Proximate-cause

Answer 31

- can limit many remote causal factors - cause closest to result is the relevant one - in E reflected in novus actus interveniens (a new intervening act) It is an act or event that breaks the causal connection between a wrong or crime committed by the defendant and subsequent happenings. The new event relieves the defendant from responsibility for the happenings => breaks the chain of causation => based on individual autonomy

Question 32

Adequate causation

Answer 32

- Most adequate cause of result - A condition is the adequate cause of a consequence if it has a tendency according to human experience and in the ordinary cause of events to be followed by such a consequence - goal: was the end result reasonably foreseeable?

Question 33

Causation as a Meta-physical concept

Answer 33

- linked to notions of causation outside the law | e. g logic, natural science, heart-attack

Question 34

Causation as a legal concept

Answer 34

- Causation in criminal law should provide a attribution of liability => establishing criminal liability

Question 35

Causation test NL

Answer 35

- theory of reasonable attribution (=a legal concept but traditional test still shines through) - includes a normative judgement - D's conduct need not to be the sole cause of the harm => preconditions rarely matter = take the V as it is found 3rd party: - third party conduct may contribute to the result - Non-voluntary conduct of 3rd parties do not break the chain (Girlfriend as shield case)

Question 36

Causation test GER

Answer 36

- necessary conditions are causes of result that cannot be dominated without eliminating the result - causality as a meta-physical concept - D's conduct need to be the sole cause of the harm - preconditions rarely matter = take the V as it is found - all necessary conditions have equal value 3rd party: third party conduct may contribute to the result - Non-voluntary conduct of 3rd parties do not break the chain (Girlfriend as shield case)

Question 37

Causation test ENG

Answer 37

- Common sense is used to determine the cause - contributory conditions excluded - Accidents vs things going as usual - preconditions rarely matter = take the V as it is found - Predisposition (Neigung) rarely breaks the chain of causation 3rd party: third party conduct may contribute to the result - Non-voluntary conduct of 3rd parties do not break the chain (Girlfriend as shield case)

Question 38

NL; GER; ENG natural events

Answer 38

- extraordinary and not foreseeable natural events break the chain of causation - extraordinary but foreseeable natural events do not break the chain of causation

Question 39

NL; GER; ENG medical intervention (voluntary conduct)

Answer 39

- medical treatment corresponding with the legis artis does not break the chain of causation - chain is broken only if the treatment was grossly negligent

Question 40

Conduct NL

Answer 40

- V's conduct after D's act - Refusing a life saving surgery does not break the chain of causation if it's the lesser of two evil (e.g extreme injury)

Question 41

Conduct GER

Answer 41

- V's conduct | - chain not broken unless the conduct of V draft

Question 42

Conduct ENG

Answer 42

- V's conduct | - V preconditions and conduct do not break the chain of causation (take the V as it is found)