Actus reus

Actus reus (from Latin, "action of the thing") is the action (or inaction, in the case of criminal negligence and similar crimes which are sometimes called acts of omission) which, in combination with the mens rea ("guilty mind"), produces criminal liability in common law based criminal law jurisdictions such as the United States, Canada and the United Kingdom. According to criminal jurisprudence, there must be a concurrence of both actus reus and mens rea for a crime to have been committed.

Incomplete crimes: attempts, conspiracy and counselling

The actus reus is often considered to be the criminal act. But what about cases where there was no actual criminal act committed? Can there nonetheless be criminal liability? There is a category of crimes that are sometimes called "incomplete crimes" where the concept of an act is interpreted to include crimes that are not only those crimes that completely carried out but are partially completed. Some might say that in just planning to commit a crime there is no act. However, it is possible to consider that the planning of a crime involves the "act of planning."

The first group of incomplete crimes are the attempted crimes, such as attempted murder such as when someone points a gun, fires and does not hit the intended victim, killing no one. Even though the actus reus has not been completed, the intent and the attempt — which is considered a criminal act in itself — are sufficient to impose criminal liability. Section 24 of the Canadian Criminal Code defines being guilty of attempt as follows: 'any one who, with the intent to commit an offence, does or omits to do anything for the purpose of carrying out his intention is guilty...'. Compare this with section 5.01 of the Model Penal Code or the vague definition in the Revised penal law of New York of 1967 section 110, "conduct which tends to effect the commission of .. the crime".

The problem with all definitions of attempted crimes is that the question of what act is sufficient to make the attempt more than just the expression of a thought to commit a crime, i.e. the remoteness of the act from the crime, in order to impose criminal liability. There may also be criminal liability even when the attempt to commit a crime is impossible, such as attempting to steal from an empty cash register or an empty pickpocketed wallet. A classic example is the attempt of someone to steal their own umbrella (thinking it was someone else's umbrella). As Lord Dilhorne stated in the House of Lords case of Haughton v. Smith [1973] 3 All ER 1109, [1974] 3 W.L.R. 1 at 19:

A man taking his own umbrella from a club, thinking it the property of someone else, does not steal. His belief does not convert his conduct into an offence. In my view, it matters not that the crime cannot be committed as a result of physical impossibility, e.g. the absence of the property he wants to steal, or of legal impossibility. In either case he cannot be convicted of an attempt when he could not be convicted of the full offence if he had succeeded in doing all that he attempted to do. Conduct which is not criminal is not converted into criminal conduct by the accused believiing that a state of affairs exists which does not.

Under the ancient common law when two or more people plan to commit a crime their act of planning, i.e. conspiracy, may create criminal liability. The English Court of the Star Chamber decided in the 17th century that only an agreement was needed between two people for conspiracy to be found. In the federal and state jurisdictions of the United States 'conspiracy to commit a crime' is a criminal act. In United States v. Shabani (1994), the Supreme Court ruled: "...Congress intended to adopt the common law definition of conspiracy, which does not make the doing of any act other than the act of conspiring a condition of liability..." Note that a "conspiracy", under laws in the United States does not require there to be more than one person involved for a finding of criminal liability.

"Counselling to commit a crime" "incitement to commit a crime" or 'facilitation to commit a crime" may each also be considered crimes in different jurisdictions.

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