The general basis for imposing liability in criminal law is that the defendant must be proved to have committed a guilty act whilst having had a guilty state of mind. The physical elements are collectively called the actus reus and the accompanied mental state is called the mens rea. It is the fundamental duty of the prosecution to prove both of these elements of the offence to the satisfaction of the judge or jury beyond reasonable doubt. In the absence of such proof the defendant will be acquitted.
An actus reus consists of more than just an act. It also consists of whatever circumstances and consequences are recognised for liability for the offence in question - in other words all the elements of an offence other than the mental element. The term actus reus has been given a much wider meaning by Glanville Williams in his criminal law. He says : When he use the technical tern actus reus we include all the external circumstances and consequences specified in the rule of law as constituting the forbidden situation. Reus must be taken as indicating the situation specified in the actus reus as on that, given any necessary mental element, is forbidden by law. In other words, acus reus means the whole definition of the crime with the exception of the mental element – and it even includes a mental element in so far as that is contained in the definition of an act. Actus reus includes negative as well as positive elements. For example, as stared earlier, the actus reus of murder is the causing of death of a person. It also includes circumstances, such as the person whose death has been caused was not as a consequence of a sentence or death given to him or that the death was caused within the territorial jurisdiction of the state.
OMISSIONS IN CRIMES
Omissions are controversial for two main reasons_ first, whether and to what extent it is justifiable omissions rather than acts; and secondly, whether liability for omissions rather than act requirement in criminal law. Pursuing the second point here, much has been made above of the importance of requiring proof that the defendant voluntarily did something to produce prohibited conduct or consequence. In so far as this can be termed an ‘act requirement’, are omissions a true exception to it? If they are, is this another argument against criminalizing them? One much-discussed preliminary question is the distinction between acts and omissions. Sometimes it is argued that certain verbs imply action and therefore exclude liability for omissions, and that the criminal law should respect. The distinctions flowing from this. English courts have often used this linguistic or interpretive approach. It has led to a variety of decisions in different statutes, without much discussion of the general principles underlying omissions liability. The law commissions considerably draft criminal code may be said to signal the continuation of this approach, by redefining the homicide offences in terms of ‘causing death’ rather than ‘killing’, and refining the damage offences in terms of ‘causing damage’, rather than ‘damaging’, so as ‘to leave fully open the courts the possibility of so constructing the relevant (statutory) provisions as to impose liability for omissions’. The draft cod would therefore remove any linguistic awkwardness in saying, for example, that a parent killed a child by failing to feed it; but it does so in this specific instance, and without proclaiming a general principle, that the act requirement may be fulfilled by an omission of a duty can be established. Attachment to the vagaries of the language is no proper basis for delineating the boundaries of criminal liability. In some situations the courts, following the linguistic approach, have nevertheless found themselves able to impose omissions liability. In Speck (1977)3 the defendant was charged with committing an act of gross indecency with or towards a child. The...