DEFINING THE ACTUS REUS Jafar Saeed The actus reus is a staple element of criminal law, being inextricably linked with the mens rea, together comprising the backbone of what constitutes a crime. Having been derived from Sir Edward Coke’s famous Seventeenth Century statement: ‘actus non facit reum nisi mens sit rea’, actus reus attempts to define the physical action of a crime, literally translating as ‘guilty act’ from Latin. Contrasting with the mens rea, which comprises the mental element of a crime (look out for the defining the mens rea article next issue). However, it would be a mistake to delineate the actus reus as simply an action taken by the accused that forms the practical side of the crime. Sometimes, the actus reus includes ‘states of being’ rather than actual actions, e.g. being in a state of drunkenness in a car (as in Duck v Peacock 1949), particularly in state-of-affairs crimes. Similarly, the actus reus includes possession (of an illegal substance/item). Although it could be argued that being in a certain state or being in possession of something is as a result of a physical action taken by the accused, and therefore the actus reus as an act, is still present (a conclusion reached in the 1843 American Regina v Dugdale case). Also, on one hand, involuntary actions (e.g. spasms or forced actions) are excluded from the definition of actus reus whereas omissions (i.e. failure to act) are included.
This is a serious deficiency in how the omission aspect of the actus reus is defined. It contradicts the very moral foundations upon which the criminal law is based; the entire justice system is based on the protection of society and the obviation of acts deemed to be objectively morally contemptible. Also, it discourages members of society from taking actions to help others and prevent criminal acts. If the duty-to-act principle is extended to all of those who are able, and under some form of moral responsibility to take action to prevent a crime; then it will stimulate individuals to do so, under fear of prosecution. (This is similar to the role of strict liability offences in encouraging individuals to take precautions to prevent a possible consequence of an unintended crime.) Defining a culpable action may not be an as laborious process as attempting to prescribe a definition to the enigmatic mens rea, yet the disparity between its simplistic literal definition and its true meaning is somewhat surprising. Unforeseeably, the signifance of Sir Coke’s statement on not only English Law, but legal systems around the world is immeasurable; as is the importance of placing precise definitions around arguably the most crucial aspect of Criminal Law, the actus reus. ●
Omissions In effect, the actus reus encompasses all of the components of a crime with the exception of the mens rea. This broader definition allows room for ‘omissions’ to be included within the actus reus title. Rather than constituting an action that directly results in a crime; an omission is rather the lack of an action that, by its inactivity, has caused a crime to be committed. It is worth noting here that an omission only becomes an actus reus if the defendant has a duty to act. Where an individual fails to act but is not in a position whereby he is duty-bound to act he may not be criminally liable, even if the failure to act was morally indispensable; in other words even if by moral standards an individual should act in a certain situation but is not required to act under law, then his failure to act will not cause him to be liable.
The Clarion-Winter 2013
The Winter 2013 issue of The Clarion - journal of Marling School law society