Act and omission in criminal law

To establish a criminal liability, the expression "actus non facit reum, nisi mens sit rea" is important, which means that "an act alone is not criminal, unless the mind also be guilty". Therefore, this arises two elements of criminal offences, namely actus reus and mens rea. Actus reus comprises all the "external elements" of a criminal offence, including the prohibited conduct, the relevant circumstances and the harm or consequence to the victims. In this essay, we will look into actus reus and analyse the two major "prohibited conducts" of it: act and omission.

We will try to find the rationales differentiating act and omission in criminal law and discuss how an individual can be criminally liable for an omission. Actus Reus The actus reus comprises all the "external elements" of a criminal offence, including the prohibited conduct, the relevant circumstances and the harm or consequence to the victims. In order word, actus reus is everything which must generally be proved in order to establish criminal liability except the state of mind of the accused. Act

Mostly, the basis of an offence was the commission of an act or activity, i. e. something actively done by the accused. Either simple or complex acts could be an offence, once they are voluntary mentioned above. For example, a blow with the hand and a murder by driving a motor vehicle could both constitute to offences. In some circumstances, the actus reus only attached to acts which are prohibited. For example, sexual intercourse is only rape if performed without the consent of the victim; the appropriation of property is only theft if the property belongs to another.

Although the precise nature of the act will not always be set out in the statute, this must be determined by applying the rules of statutory interpretation and the precedent cases. Criminal Liability by Omission In Common Law, it is a general rule that a mere omission or failure to act arises no criminal liabilities. According to Judge Stephen J1, he illustrated that an omission cannot make a person guilty – he highlighted this statement with his scenario: "A sees B drowning. A does nothing to help B. B drowns.

A is in no way responsible for failing to help or to summon help. " In the above scenario, A has committed no offence as his failure to act failed to fulfill the matters of voluntariness, causation and attribution, which are essential for establishing criminal liabilities:- 1. If A had not seen B drowning, A has not conducted himself in any way that could justifiably be used to attribute criminal liability to A. In order words, the minimum requirement of 'voluntary conduct' is not satisfied and thus no actus reus arose in the incident.

Even if A was present at the scene and saw B drowning, it appears that all the factual circumstances leading to B's death by drowning were already in place and was not by A's failure to act, no matter it was voluntary or not. However, there are exceptions to the general rule. Firstly, an offence may explicitly impose liability for an omission or failure to act, i. e. this creates a statutory duty to act inevitably. In s. 170 of Road Traffic Act 1988, it is an offence to fail to stop and give various details in connection with a road traffic accident involving personal injury or property damage.

"Assisting in the retention" of stolen goods in s. 22(1) of the Theft Act 19682 is an other example of particular words in the definition of an offence have been interpreted and applied to failure to act. 1 Digest of the Criminal Law, 4th edition, 1887 2 See Pitchley (1973) 57 Cr App R 30 Some of the Hong Kong laws expressly impose a statutory duty to act in a particular manner. For example, s. 80(1) of Inland Revenue Ordinance3 stipulates that a failure to file a tax return is an offence. According to s.

56(3)(6) of Road Traffic Ordinance4, criminal liability will arise if the individual fails to report a motor vehicle accident. Criminal liability may also be imposed for an omission or failure to act under certain ordinance in Hong Kong: – s. 37 of the Offences Against the Person Ordinance5 stipulates that it is an offence for a "person over the age of 16 years who has the custody, charge or care of any child or young person under that age … [to] … willfully neglect"; – According to s. 38 of the Road Traffic Ordinance, "careless driving" is the neglect itself which gives rise to criminal liability.

Apart from statutory duties, criminal liabilities may still arise in the circumstances that the accused owes a specific legal duty owed to the victim. There are several circumstances in which the duty will arise, although it appears open to the courts whether to impose a duty to act or not. 1. Contractual duties. A duty to act may arise as the result of a contractual obligation. In Pittwood6, a railroad crossing guard failed to shut the gate onto the railroad was a breach of his contract of employment, which led to a conviction for manslaughter after a person was killed when a train hit a hay cart.