The Actus Reus
Introduction and preface to the article:
This topic, difficult at times in terms of identifying causation, requires looking at various issues related to the legal tenet.
For example, closely related issues such as the requirement to have a voluntary act, what categories include a non-voluntary action – such as reflex actions, automatism and somnambulism – and, pertinently, liability for omissions such as the duty to act and causation itself?
This topic bridges law with many aspects of medical science. A considerable amount of time has been spent in researching the subject and, as readers will note, a significant number of case-law histories have been identified for inclusion as proof within the journal.
Where references have been made to external sources the author will identify these within a bibliography at the end of the work.
© Copyright MarkDowe 2007: all rights protected
PART 1:
The voluntary act requirement -
Ladies and gentlemen, in my last delivery on Scots Criminal Law (The nature and administration of Scots criminal law), I ended that article stating that it is a fundamental requirement for liability under Scots criminal law that there is some form of voluntary act.
It is often stated, there can be no conviction for a "thought crime" alone without a related criminal act. 'Thought crimes' are instances where a person has had a criminal thought but has done nothing to put it into effect. That act may amount to very little, for example an attempt to commit a crime which fails to come to fruition. Nonetheless, there has to be some form of act which moves beyond preparation and does show the accused's criminal intent sufficiently to provide a basis for conviction. There appears to be two main reasons for refusing to punish 'pure thought crimes':
1. It is impossible for the prosecuting authorities to know what someone was thinking at a particular time, unless those thoughts were put into action and,
2. Even if those thoughts were evil, it is likewise impossible to predict whether they will necessarily lead to criminal actions.
- It is often felt that the legal system cannot justify interfering with a person's freedom simply because his thoughts are such that he might behave criminally in the future.
What is required is an act which shows that the accused is capable of actually harming society and which is prohibited under criminal law. Thus, the combination of criminal act and criminal state of mind gives the legal system its justification for intervention.
There are two classifications of crimes, depending on the type and duration of the conduct involved. A crime which is encompassed within a single event is know as a conduct crime. For example, the law prohibits the possession of illegal substances under the Misuse of Drugs Act 1971. The mere fact of possession, which is an aspect of the accused's conduct, is sufficient enough for conviction. Specifically, there is no need for a result to flow from that possession and thus deemed a conduct crime. However, some crimes require a specific result to flow from conduct in order to make that conduct the subject of the particular crime. In such cases, these are known as result crimes. The classic example is murder. If the accused commits murder, he is guilty. However, it is the unlawful result (the killing of the victim) that secures conviction. It does not matter what form of conduct the accused has engaged in order to achieve that result. He may, for instance, have stabbed, beaten or poisoned the victim, but the conviction will still be the same, because the crime of murder simply looks for a resultant unlawful killing by the accused.
Although it is not possible to convict for a guilty mind without a criminal act, it is possible to convict an individual on the basis of a criminal act without any intention. These are known legally as 'strict liability offences'. It is not my intention at this moment in looking too closely at strict liability offences, suffice to say that such offences will be examined later under a separate journal posting of statutory offences.
On finding that the accused has committed an act of some kind, it must amount to a voluntary act. This should not be confused with an act which the accused wanted to perform. A voluntary act is one over which the accused has exercised control, or one of which he is aware. There are established categories of voluntary and non-voluntary actions, which will be looked at in the next chapter.
PART 2:
