The Concepts of Conduct and Causation

Considering the views expressed above, write a critical analysis of the concepts of conduct and causation as interpreted by the courts.

This paper will argue that criminal law is not a consistent and rational body of law taking conduct and causation as the basis, this will be supported by demonstrating the lack of consistency by discussing various criminal offences. This will be achieved by comparing various case law, legislation and different academic viewpoints. Although the aim is to discuss the concept of conduct and causation as interpreted by the courts, this paper will question whether law overall can be rational and coherent, or whether its an ideological viewpoint.

A necessary element for a crime is perceived to be a guilty mind, when translated in Latin it is referred to as Mens rea. The common law test for criminal liability is expressed as actus non facit reum nisi mens sit rea, which means “the act does not make a person guilty unless the mind be also guilty”. A “guilty mind” in conjunction with a “guilty act” which when translated into Latin is Actus reus also known as the external element or the intentional element of a crime.

Mens rea is defined as “ a state of mind that the prosecution must prove a defendant to have had at the time of committing a crime in order to secure a conviction” mens rea is established by precedent or either by the statute creating the crime, and can vary from crime to crime. Some crimes require no mens rea which are known as strict liability, some crimes require a certain circumstance as part of mens rea, a defendant cannot plead ignorance of the law, nor is it a good enough motive of def ence. The defendant can however bring evidence to state their was no mens rea present, but merely raised a general defences or a particular defence in relation to the crime, mens rea in recent years has been understood to require an advertant state of mind, therefore meaning that those offences which could be committed negligently, or for a crime which liability was strict, imposed liability on the persons who may have had done the prohibited act, or caused prohibited consequence inadvertently, but towards the end of the century, this line of separation between mens rea and negligence became blurred due to the fact that judges struggle to find to define the meaning of words in mens rea, thus being seen particularly unsatisfactory in the light of individuals serious consequence that had to attend a conviction for a criminal offence.

Actus reus is defined as an “essential element of a crime that must be proved to secure a conviction, as opposed to the mental state of the accused.” In most cases the actus reus will simply be an act, accompanied by specified circumstances. In certain cases the actus reus may simply be a state of affairs rather that an act. Each crime must be examined individually in order to determine what must be proveded to establish its actus reus. Generally however, it is necessary to know which elements of the definition of an offence comprise the actus reus. The term actus reus has a much wider meaning than the ‘act’ prohibited by the law, which it implies. A useful working definition is that it comprises all the elements of the definition of the offence except those, which relate to the mental element (mens rea) required on the part of the accused. Criminal law does not seek to punish people for their evil thoughts or intentions. If the defendant has the mens rea for a particular offence but does not bring about the actus reus, he is thereby not guilty of committing that particular offence, whatever its nature. This is illustrated in the case Deller 1952, whereby the defendant believed that the car he was selling was subject to a hire purchase agreement but said that it was “free from encumbrances”. In fact this was probably true. The Court of Appeal in this case allowed the defendants appeal. Although the defendant had mens rea (believing that his statement was false), the jury was entitled to conclude that the statement was not, in fact, false, so that the actus reus was missing. There were, accordingly, no false pretences because it may be quite accidentally and, strange as it may sound, dishonestly, the appellant had told the truth. The defendant had quite clearly intended to make false representations but the representations he made were true, while he had mens rea, there was no actus reus. If such facts were to recur the correct charge would be attempting to obtain property by deception.

A crucial element of the actus reus is causation, it must be established that a defendant’s acts or omissions cause the prohibitive consequence. As Jefferson observes, “ there is no more intractable problem in the law than causation” in accordance to Hart and Honore, it is deemed that what “makes the difference” between disaster and normal functioning are the defendants acts. It is also said that when academics are called to give account of casual principles “they often resort to obscure metaphors of ‘casual potency’, the ‘exhaustion’ of causes, and the ‘breaking of chains’” the causation test carries two limbs, the first outlines that the defendant’s conduct must cause the prohibited consequence, thus the second limb states that a defendant’s conduct must in law cause that consequence. An establishment of these two limbs must be fulfilled prior to the harmful consequence being attributed to the defendant, thus being regarded as a complex part of law, therefore the “but for” test is habitually used to determine factual causation, but is not deemed acceptable practice and should not be applied in isolation, as many defendants would proceed a correspondence between resultant causes, which would be far too remote, therefore there is a need of common sense to be applied.

Causation can lead to more than one cause of consequence thus in these circumstances we need to “look further” for more stable direction. If the defendant’s act therefore can be adduced to be factual causation, then the defendant will be held to have caused that prohibited consequence only if the court finds his conduct was also a cause in law, therefore establishing legal causation. An explanation from Williams states that when causation is an issue, “ the defendants act or omission must be shown to be not only a but-for cause but also an imputable or legal cause or consequence.” there is an initial problem that affects the defendant’s responsibility between the initial act and the ultimate consequence, thus it is at times decided that the intervening the act does in fact ‘break the chain of causation’ therefore the defendant is not legally liable for the end result, interpreted in Latin it is known as novus actus interveniens and means the defendants act is no longer the cause of death, and as Jefferson outlines, “merely part of history”, examining the rule of “ take your victim as you find him” is also revealed to be a concise principle.

Differences between acts and omissions also need to be understood, as an act is when a crime has been committed whereas, an omission is when nothing has been done with regard to the crime. However, if any action was taken it could of prevented the offence in the case of Dytham, a police officer failed to act as he watched a member of the public get violently assaulted while he was on duty; the police man was subsequently found to be guilty of misconduct. In the case of Stone v Dobson, failure to provide medical attention resulted in the defendants being charged with manslaughter, even though they were described as “inadequate” and below average intelligence, thus resulting in omissions amounting to the Actus Reus element of a crime. In the case of Miller, a voluntary act to leave a mattress alight, was also regarded as arson, even though he was asleep when the cigarette dropped on to the mattress, he made an active decision to leave the scene. In contrast to these cases, it was regarded that in Airdale NHS Trust v Bland, when doctors made a decision to turn off a life supporting machine, the courts held that this was a legal omission, this case demonstrates inconsistency, as it could be argued that an act of murder had been committed. In the case of Bratty v AG, lord Denning suggested that any act that is done involuntary should not be punishable, this is referred as automatism. From the cases above it is evident that criminal law is not coherent with regard to acts and omissions, firstly in order for a crime to exist it states that both the actus reus and mens rea should exist, therefore when people are charged on the grounds of an omission, it could be argued that they only suffice one element; the atus reus, thus inconsistent with regard to other offences.

The criminal offence of attempt also demonstrates inconsistency, although the element of mens rea is fulfilled, the actus reus, in unfulfilled, therefore if one was to look at this doctrinally there would be no conviction as mental events alone do not suffice. However this is disregarded with respect to attempts, the defendant may be charged with an attempt to commit a specific crime. The Criminal Attempts Act, sets out the grounds upon one may be charged with attempt, S.1 (3) states that even if an act is impossible, this factor does suggest irrationality, as one may argue that if an act was never going to be carried out, then why should one get punished. In the case of Gullefer the defendant’s conviction of attempted theft was quashed on appeal, as it was held that the jumping upon the track did not go beyond mere preparatory. In R v Jones, the defendant was convicted of attempted murder, the defendant appeald and suggested, that the acts did not go beyond preparatory, as he hadn’t removed the safety catch and pulled the trigger. The courts dismissed the appeal and stated that the natural meaning should be given to the words “more than merely preparatory” in contrast in R v Geddes, it was held that an attempt could only exist if it was shown that the defendant was actually trying to commit the whole offence, however in R v Nash the Court of Appeal upheld convictions in this case, even though the act that was committed was far from the intended offence. It has also been suggested that there are means of discretion within the criminal legal system, which are not adequately highlighted; this is supported by the lack of mention with regards to plea-bargaining and the unpredictability of sentencing.

It could be argued that Criminal law is irrational, if no evidential or presumption is found the jury make the decision, thus creating a complex system. There are two cases that demonstrate inconsistency with regard to consent, in Lartner the victim was asleep whilst sexual act took place, this was held as rape, in Malone the victim was drunk who was not aware whether consent has taken place, the judge said that drunken consent was still consent, it could be argued that in Malone no consent was present as the victim was drunk; thus highlighting the lack of coherence in criminal law. In the case of Mcfall, it was held that the victim did not consent subjectively; it was held that the victim only committed herself to the act because she was scared, although this could possibly be the case; it highlights the issue that Criminal law lacks consistency. The courts have extensive powers and rather than having a set body of law, there tends to be variations and exceptions. Barlow and Fellows argue that rape should be an offence of strict liability, if penetration is proved, without consent; the defendant should be convicted of rape. Furthermore they argue that consent in violent relationships should be invalid, this approach would protect those who are pressurised into carrying out an act and also those in violent marriages. By discussing sexual offences it can be deduced that there is a lack of consistency with regard to the law, especially the aspect of consent, at times consent is seen as valid whereas in similar situations it is held invalid. Moreover, an issue arises due to the fact that only men can rape, Jenifer Temkin argues that a Canadian approach should be adopted, where women can be convicted for rape. This would make criminal law in essence more just; this is because there would not be gender differentiation.

The principle of legality is also a key aspect of a coherent criminal legal system, every crime should be clear and concise thus enabling the public to be aware of the choices they make, the Human Rights Act 1998 (HRA hereafter) states that the law must be capable of being obeyed, and also that the law should be readily available to the public. However Brown and Ellis argue that S.5 of the Public Order Act 1986 infringes this right and suggest that it is used to combat those who swear at police officers, as seen in the case of Materson v Holden. Under this act it is an offence to employ behaviour that may cause “harassment, alarm or distress” it could be argued that this is not very concise; one individual may find certain behaviour harassing whereas another may not. Under English law every man is innocent until proven guilty the HRA reinforces this under Article 6(2) however in both Salabiaku v France and Phillips v UK, it was held that presuming guilt does not infringe Article 6(2), thus exemplifying the lack of consistency.

The concept of proportionality discusses whether criminal sanctions reflect the crime committed, Norrie suggests that “once we go beyond the conviction, the rules and principles of criminal law evaporate and the system becomes much more discretionary.” It could be argued that the law regarding sentencing is very complex thus making it difficult for the public to access. Alldridge questions why the criminal system relies heavily upon external experts, as in R v Turner, furthermore why they are deemed capable to access other peoples state of mind. It could also be argued that their is no sufficient legal justification for the length of sentencing, Packer suggests that sentencing is deduced from the extent of the moral wrong, furthermore society is swayed in to believing that their is an “authoritative body of moral sentiment.” The argument proposed suggests that their is no stable foundation of law that can justify how the length of punishment is derived, i.e. the maximum penalty for G.B.H can potentially be life imprisonment, which is the same for rape, thus suggesting they are of equal wrong. Although the courts are not likely in reality to do so, it raises the question as to why the option still remains, suggesting that criminal law maintains illogical laws in order to give them discretionary powers. Carlen suggests that, the “criminal justice system is underpinned by imaginary representation of crimes which are more harmful.” Moreover Packer argues that crimes that are regarded as most threatening, are those that are least accepted by the majority of the public and are awarded greater sanction. This issue question, whom the courts regard as ‘majority’ and the ‘reasonable man’, questions as it is arguable that each individual may regard ‘reasonable’ totally different to another.

Sullivan critiques Norrie, and deduces that there is an unequal distribution of wealth and power within society, resulting in the apparatus of criminal law incoherent. Furthermore, the pressures of social circumstances surround that decision-making. Norrie’s Kanthon model argues that less consideration should be given to these circumstances. It has been argued that “concepts are manipulated to allow convictions or acquittals”, moreover it has been highlighted that those who socially deprived are more likely to be convicted of an offence. Finally, when discussing whether criminal law is coherent and rational, it raises the question whether coherency and rationality exists in other bodies of law, and whether it is capable of existence. Norrie argues that a “just and analytically coherent system of criminal law is an unrealistic aspiration for England and Wales.” Jackson argues that there is “no safe haven of a exclusively legal discourse” furthermore, that every legal system is a mixture of morals and facts. He discusses the ‘bucket theory’ and that “perception and memory supply basis data for reasoning”, it could be argued that every legal discourse is based upon a foundation that is built upon morals, moreover, it would be impossible to govern all situations with a single set of law, this is because certain situations can differ, resulting in a moral decision having to be made. These decisions may not be coherent or rational however, they must be made.

When acts are criminalized, the aspect of the act does not differ, however, the consequence does. An example that can be used to further this point is the offence of making off without payment. Prior to 1978 the perpetrator would only be civilly liable, however when this offence was made criminal, it resulted in the consequence changing, which meant that the perpetrator would also be criminally liable. Allen argues that “crime is then of limited usefulness, it only indicates which acts are criminal by reference to consequence, which may ensue from their consequences.”