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Actus reus and mens rea, are two very widely used criminal law maxims that once were essential for the clarification of intention, but sadly over the passage of time, the former has become victim to legal abuses by lawyers seeking to bend a virtue that perhaps warrants review after hundreds of years of application.
In this matter, the accused was a homeless man, who after drinking a reasonable amount of alcohol, entered a vacant home, before taking up occupancy in an empty room. After lighting a cigarette, he then fell asleep on a mattress, at which point the cigarette began to ignite the mattress fibres, thereby causing it to slowly smoulder.
Upon waking, the appellant saw what was happening, but chose to simply get up from the mattress and walk into an adjacent room, before returning to sleep. It was not until the arrival of the local fire brigade, that he awoke again to discover that the room he had since left was now ablaze, and that significant fire damage had resulted from his failure to extinguish the burning mattress.
Upon summary, the appellant stood accused of recklessness causing criminal damage to another’s property, that in turn led to a conviction of arson under s.1(1)(3) of the Criminal Damage Act 1971. While under appeal, it was argued that both mens rea and actus reus are key elements to a criminal conviction, and that because the appellant had left the room, he could not be found liable through inaction, as opposed to action (actus reus), while further arguing that he was under no obligation to extinguish the burning mattress, and that his mens rea was ultimately irrelevant to the proceeding fire.
The crux of this defence misdirection is that while actus reus explores the actions of a defendant, the reality of life is that inaction by its own virtue, is an equally destructive process when the party in question can see very clearly that it was his previous actions that initiated the root offence, and that there were sufficient steps available to the defendant to prevent the damage from spreading (including seeking the assistance of third parties to that effect). Therefore, a defence based upon the interpretation of a word does nothing to circumvent the social responsibility of those faced with potentially (yet avoidable) damaging situations.
While the appeal was dismissed, it was again put before the House of Lords who listened intently to a bargaining application for the quashing of an arson charge, before succinctly explaining that with no quarter for doubt, it was evident that the appellant had elected to recklessly avoid his personal obligation to prevent the fire from growing, in favour of distancing himself from his original action, regardless of the foreseeable consequences that followed.
“The habit of lawyers of referring to the “actus reus” suggestive as it is of action rather than inaction, is no doubt responsible for any erroneous notion that failure to act cannot give rise to criminal liability in English Law.”
“[I]t is the use of the expression “actus reus” that is liable to mislead, since it suggest that some positive act o the part of the accused is needed to make him guilty of a crime and that a failure or omission to act is insufficient to give rise to a criminal liability unless some express provision in the stature that creates the offence so provides”
“I see no rational ground for excluding from conduct capable of giving rise to a criminal liability, conduct which consists of failing to take measure that lie within one’s power to counteract a danger that one has oneself created.”
“[I]n case where the relevant state of mind is not intent but recklessness i see no reason in common sense ad justice why mutatis mutandis a similar principle should not apply to impose criminal liability upon him.”
“I cannot see any good reason why, so far as liability under criminal law is concerned, it should matter at what point of time before the resultant damage is complete a person becomes aware that he has done a physical act which, whether or not he appreciated that it would be at the time when he didi it, does in fact create a risk that property of another will be damaged…”
“I would commend the use of the word “responsibility” rather than “duty” which is more appropriate to civil than to criminal law, since it suggest an obligation owed to another person, i.e. the person to whom the endangered property belongs, whereas a criminal statute defines combinations of conduct and state of mind which render a person liable to punishment by the state.”