2) Key elements of criminal liability Flashcards
What is the quote from D J Lanham
Three ingredients that make up a crime
* Actus Reus = omission / failure or act
* Mens Rea
* Absence of defence.
What was Edward Coke’s Institutes
An act does not make a person guilty, unless their mind is also guilty.
Key elements of criminal liability
- Actus reus
- Mens rea
- Absence of a valid defence
Types of Actus Reus
- Conduct
- Result
- Circumstances
- Ommissions
What does Actus Reus usually refer to?
- Actions prohibited by law
What are conduct offences?
Offences will only require certain acts to have been committed by the defendant to satisfy the actus reus
eg Fraud by false representation
eg Blackmail - demand with menaces
eg Theft - no need to deprive victim of property
s21 Theft Act 1968
Blackmail = demand with menaces
= A conduct offence
s1 Theft Act
Example of a conduct offence, victim does not need to be deprived of their property for Actus Reus to be satisfied
Fred punches Jim, can this be both a civil and criminal law?
Crime = battery
Civil law = tort of trespass to the person
(Private matter between parties)
What is the difference between civil and criminal law?
One is a public wrong, the other is a civil wrong
To what standard to crimes need to be proved?
Beyond reasonable proof
Woolmington v DPP
When might the defence have to bear the burden of proof in criminal law?
Eg diminished responsibility
In this instance, the standard of proof = on the balance of probabilities
What are the key elements of criminal liability?
- Actus Reus (guilty action)
- Mens Rea (guilty mind)
- Absence of a valid defence
What are the four types of actus reus
- Conduct
- Result
- Circumstances
- Omissions
Actus Reus: Conduct offences
That certain acts have been committed by the defendant to satisfy the actus reus.
eg s2 Fraud Act requires a false representation to be made
eg s1 Theft Act victim need not be deprived of their property
Actus Reus: Result offences
Crimes require more than just the defendant’s action. Action must lead to specified consequences
It must be proved that the action caused the result
Actus Reus: Circumstances
Can include the need for surrounding circumstances.
eg s1(1) Theft Act - the Actus Reus of theft requires property to “belong to another”
Actus Reus: Ommissions1
Can be held to have committed an offence without action. eg if there was a legal obligation to act (lifeguard)`
Although the general rule is that there is no liability for failure to act.
What is the Actus Reus of Criminal Damage
- Damage or destruction
- Property
- Belonging to another
- WIthout lawful excuse
What is the actus reus of theft?
- Appropriation
- Property
- Belonging to another
Is motive necessary for criminal liability?
No
Chandler v DPP
Theft Act 1968 s1
‘A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it.’
What do result crimes require?
That the defendant’s conduct caused a particular result.
eg murder, manslaughter, criminal damage, and assault.
What is the causation part of result offences?
The actus reus… the guilty act
The actus reus of result crimes
Result Crime
Factual Causation
Legal Causation
What is meant by factual causation?
The jury must be satisfied that the acts or ommissions of the accused were in fact the cause of the relevant consequence.
Legal causation
Must be established that the acts or omissions of the accused were a legal cause of that consequence.
Actus Reus: Killing
“unlawful killing of a human being under the King’s Peace”
Is murder a result crime?
Yes - requires killing.
What is the test for factual causation
The “but for” test, the acts or ommissions of the accused would not have occurred in the way that it did.
R v White
R v White - Facts
The “but for” test
* W put poison into a drink intending to kill his mother.
* She was found dead
* Not clear she had drunk any liquid.
* Medical evidence showed heart failure rather than poisoning.
R v White - HELD
Acquitted of murder as no causal link between the consequence and his act.
Was guilty of attempted murder
R v Dyson - FACTS
- Meningitis was not curable
- Child had meningitis
- Threw child down the stairs
R v Dyson - HELD
Any action which accelerates death is a cause
Legal causation
Will require the defendant is the “operating and substantial” cause if the prohibited consequence.
R v Pagett
R v Pagett
Defendant is the “operating and substantial” cause of the prohibited consequence
R v Pagett
What are the key legal causation principles?
- “Substantial” cause - R v Hughes
- Consequence must be caused by the defendants culpable act R v Dalloway
- Defendant’s act need not be the only cause of the prohibited consequence R v Benge
R v Hughes - key principle for legal causation
Defendant act must be the substantial cause of the prohibited harm
R v Dalloway - Key legal causation principle
Consequence must be caused by the defendant’s culpable act
R v Benge - Key legal causation principle
Defendant’s act need not be the only cause of the prohibited consequences of
R v Hughes - wording
Must be a “substantial cause”
“Where there are multiple legally effective causes…. suffices that it is a significant or substantial…..not de minimis”
R v Dalloway - FACTS
- Defendant driving horse and court without holding rails.
- Child run over.
- Even if holding reins ….could not have stopped
R v Dalloway - HELD
- Dalloway had not been driving the cart, child would not have been killed
- Needed to show the death was due to culpable elements in his act.
- Not guilty
R v Benge - FACTS
Foreman of some railway tracklayers
Thought train wasnt due for a few hours. Sent a man down the track with red flag.
Did not go correct distance - crashed.
R v Benge - HELD
Defendant’s negligence = mainly or substantially caused accident
Irrelevant that it might have been avoided if others had not been negligent
novus actus interveniens
A subsequent event or act of either the victim or a third party which renders the defendant’s part in the consequence very small, breaking the chain of causation and meaning that the defendant is not criminally liable.
Types of intervening acts.
Medical negligence
Acts of a third party
Acts of the victim
Thin skull rule
natural events
Medical negligence cases
R v Smith
R v Cheshire
R v Smith - FACTS
- Stabbed victim in barracks
- Soldior dropped twice.
- Medical negligence.
- DIed
R v Smith - HELD
Convicted of murder
Smith’s actions - substantial and operating cause.
Medical negligence was not a sufficient cause to sever chain.
R v Cheshire - FACTS
Shot victim twice.
Respiratory problems during surgery.
Scar tissue over tracheotomy.
Dismissed by medics as anxiety.
Original wound had healed at time of death.
R v Cheshire - HELD
CoA held that poor medical treatment did not break chain of causation
Acts of a third party case
R v Pagett
R v Pagett - FACT
- Pregnant girlfriend as shield
- Killed in return fire
- Police acted in self defene / performance of their dutied
R v Pagett - HELD
Pagett convicted
May only be a break in the chain of causation if actions of third party were free, deliberate and informed
What are the three types of act of the victim?
- Fright and flight
- Refusing medical treatment
- suicide
Fright or flight - novus actus interveniens?
- Whether the escape was forseeable by the reasonable person
- If not, defendant is entitled to an acquittal.
- No longer deemed to be legal cause
Fright and flight - CASES
R v Roberts
R v Williams & Davis
R v Roberts - FACTS
Victim was a passenger in Roberts car
Terrified of unwanted sexual advances.
Jumped from moving car
R v Roberts - HELD
Roberts was convicted of assault occasioning actual bodily harm
Natural result of something the assailant did or said.
Not so “daft” or unexpected… that no reasonable man could forsee.
R v Williams & Davis - FACTS
Appellants gave a lift to a hitchiker and tried to rob the hitchiker.
Victim jumped from moving car.
R v Roberts - HELD
Appellants were convicted of manslaugter.
LJ Stuart Smith in Williams & Davies
Must be proportionality between gravity of threat and the action of the deceased toa escape from it.
Test in R v Williams & Davis
1) Reasonably forseeable that some harm, albeit not serious harm, was likely to result from the threat.
2) Whether deceased reaction was within the range of responses which might be reasonably expected from a victim.
Bearing in mind any agony or act without deliberation.
Cases to consider for refusal of medical treatment
R v Blaue
R v Holland
R v Dear
R v Blaue - FACTS
Woman stabbed and pierced lung. Refused blood transfusion for religious reasons - died.
R v Blaue - HELD
Argument was rejected - defendants must take vicitms as they find them
whole person = body and mind
R v Holland - FACTS
Deceased was attacked by Holland and suffered number of wounds = severely cut finger.
Neede amputating, refused. Died of tetanus.
R v Holland - HELD
No defence
Did not matter that wound was not instantly mortal, or whether it later became so.
R v Dear - FACTS
12 year old daughter sexually assaulted.
Appellant slashed victim. Wounds opened up and died.
Argued that had died by suicide or wounds opened up naturally.
R v Dear - HELD
Were the injuries by the defendant an operating and significant cause of death.
Suicide - Case
Suicide case
R v Wallace
R v Wallace - FACTS
- Defendant through acid over ex boyfriend, paralysed and in constant pain.
- Euthanasia by doctors.
- Judge withdrew murder - as victims choice to die was free, informed and broke chain of causation
R v Wallace - HELD
CoA held it was open to find that this death was not voluntary.
1) Unlawful act = significant and operating cause of death.
2) Reasonably forseeable victim would die by suicide as a result?
When may a victims suicide break the chain of causation
- Injuries inflicted by defendant had healed. (distinguishin R v Dear)
- Voluntary and informed decision of the victim to act (R v Kennedy)
R v Kennedy
Heroin overdose
Person who supplies a drug has not caused that drug to be administered
Thin skill rule
Person who inflicts harm on another cannot escape liability if the victim suffers greater harm than would have been expected as a result of a pre -existing condition.
Take the vicitm as they find them
R v Hayward - FACTS
Threatened wife and chased her.
Wife died from thyroid condition, meaning fear and phys exertion lead to death.
R v Hayward - HELD
Hayward caused her death because he had to take her condition as he found it.
Natural events will only break the chain of causation if….
They are extraordinary
They are not reasonably forseeable.
R v Girdler
Use of common sense when deciding which test to use.
In exceptional cases will the chain of causation be broken due to negligent medical treatment?
Yes
R v Jordan
The general rule relating to omissions
Defendant cannot be criminally liable for a failure to act, as there is no general duty to act to prevent harm
- R v Smith (William)
What must the prosecution prove to secure a conviction based on a failrue to act?
1) Crime was capable of being committed by an omission.
2) Accused was under a legal duty to act
3) Breached that duty
4) Breach = actus reus
5) Mens rea if offence requries
What are common situations where a defendant will be under a legal duty to at?
- Statute
- Special relationship
- Voluntary assumption
- Contract
- Defendant creating a dangerous situation
- Public offence.
What is an example of an offence that can only be committed by an act?
Statutory Duty
Under statute many offences can be caused by omission.
eg offence to fail to provide a speciment of breath (RTA s6(4))
Special Relationship creates legal duty to act
Doctors and patients, parents and children, spouses
R v Hood
R v Hood
Liable for manslaughter when wife died from broken bones, and he failed to summon assistance.
Liability stemmed from relationship on the basis of marriage.
R v Gibbons and Proctor - FACTS
Gibbons lived with cirlfriend, together with child and girlfriends children from prior relations.
Gibbons gave money for food.
Girlfriend starved boyfriends child to death.
R v Gibbons and Proctor - HELD
Lived in same house, must have been aware of condition.
Gibbons convicted of murder.
Re A (Children (Conjoined Twins)
Certain to die due to absence of procedure.
Parents would not give consent.
Parents had a legal duty and may be guilty of killing her under Gibbons and Proctor
Voluntary assumption of a duty of care
Not generally under a duty to care for another in distress.
But if voluntarily assume duty - will be liable if fail to carry out that duty.
R v Nicholls
If a person chooses to undertake care for a helpless person, they are bound to execute that responsibility.
Will be guilty of manslaughter if die by gross negligence.
R v Gibbons and Proctor - Voluntary Assumption
As de facto wife, she was looking after the house and children = voluntary assumption
convicted of murder
R v Instan
Instan lived with her aunt who was 73 years old
Gave money to provide them both with food.
Gangrene in leg
Used money for her own food, did not five medical assistance or food.
Aunt died = manslaughter
R v Stone and Dobinson
Low intelligence. Looked after anorexic sister. Gave up trying to make her eat, confined to bed and died.
Convicted of manslaughter - had assumed responsibility.
R v Ruffell
Taking drugs, became unconscious. Telephoned mother the next day. Left him on door stop, died.
Was a friend, had attempted to revive him.
= Assumed duty.
Contractual duty
A duty can be owed by the defendant either to the party with whom the defendant is contracted or to a third party
R v Pittwood
R v Pittwood
Level crossing gatekeeper. Failed to close gate, man killed.
= actus reus of manslaughter by omission, as was under a contractual duty to close gate.
Dangerous situation
Duty to take reasonable steps to counteract the dangerous situation created.
Reasonable steps only.
R v Miller
Squatter fell asleep with a lighted cigarette.
Moved rooms to sleep in another.
Convicted of arson under CDA 1971
Inaction or omission to prevent further damage - actus reus of criminal damage.
R v Evans
Sister and mother drug addicts. Daughter took heroin and OD’d. They didnt do anything.
She died = gross negligence.
Mother owed familial duty. Sister created a dangerous situation and did not remedy it.
Do siblings owe a familial duty?
No, adult siblings are not regarded as the constructive guardian of younger siblings.
On what basis was Evans convicted?
She helped create a dangerous situation by supplying deadly drugs, she was aware that her sister had ODd and did nothing.
Public Office Case
R v Dytham
R v Dytham
Police constable on duty, saw a man being kicked badly. Later died. Did not attempt to stop the disturbance and drove off.
Guilty of willfully neglecting to preform his duty
Relationship between omissions and causation
If the defendant had acted, they could have made a causal difference
Mens Rea meaning
Guilty mind - meaning that in law the defendant has the required mental element for the crime.
Is mens rea always the same no matter the crime?
The state of mind that the prosecution must prove will vary from crime to crime.
What are the different types of mens rea
Intention
Recklessness
Knowledge and belief
Dishonesty
Negligence
Mens rea - intention
Some offences require that the defendent intended a certain result
eg murder.
Mens rea in murder
Defendent must intend to kill the victim or to cause serious harm
R v Vickers
What are the two types of intention (Mens Rea)
1) Direct intention - the aim or purpose (R v Moloney)
2) Indirect / oblique intention - rare but where defendent does something manifestly dangerous then someone dies, although not the primary aim.
Indirect / oblique intention
Rare but where defendent does something manifestly dangerous then someone dies, although not the primary aim.
Mens rea - Recklessness
Unjustifiable risk, aware of the danger that the prohinited harm may occur upon taking that risk.
What has “maliciously” been held to allow for….
Actus reus committed intentionally or in the alternative recklessly such as the Offences Against the Person Act 1861
Mens Rea - Knowledge and belief
Defendant who is absolutely certain as to the existence of a circumstance, or is possibly aware
eg handling stolen goods Theft Act 1968
Mens Rea - Dishonesty
eg required for most offences under the Theft Act 1968 - must also be found to have been dishonest….
not defined in the act
but a test was set out in Ivey v Genting Casinos
Mens Rea - Negligence
Falls below the standard of the reasonable person.
Some criminal offences have negligence as an element of mens rea - but must be gross
R v Bateman
Distinction between gross negligence and civil negligence
“Disregard for life and safety of others as to amount to a crime against the state”
R v Sheppard
- Some opinion that negligence should not feature at all.
- As involves judging a person against a hypothetical person rather than their own state of mind
The meaning of recklessness
When a person does not intend to cause a harmful result.
Sees a risk of harm and goes ahead anyway.
Risk taking must be unjustifiable.
Is something reckless if there is social utility or value to society?
Yes but not criminally so as if it is justifiable
Will be balanced against the degree of harm… only if a very high degree of probability of grave harm outweighs social utility will it be condemned as reckless.
Current definition of recklessness case
R v G and another
R v G and another
Definition of recklessness
Circumstance / result
1) aware of a risk exists or will exist (foresore risk)
2) in the circumstances known to him, unreasonable to take the risk.
in the circumstances known to him, unreasonable to take the risk
R v G
Risk must have been objectively unreasonable, but under consideration and seen.
Jury should not consider factors not known to the defendant at the time
Where does the test for recklessness come from?
R v G
What are the types of intention?
1) Direct intention
2) Oblique intention
What is direct intent
Consequence is what the defendant aims to happen.
Subjective test from the defendant’s point of view
Where does the general rule relating to direct intention come from?
R v Moloney
R v Moloney
Intention should be given its ordinary meaning… leave it to the jury’s good sense.
Differs from desire and motive.
Indirect intention
Rare cases
Act that is manifestly dangerous, and someone dies as a result, but the primary desire or motive may not have been to harm that person.
Definition of oblique intention
Consequence is not the defendant’s purpose…. but a side effect that is an inevitable accompaniment to defendant’s direct intention.
Where is the test for oblique intent laid out?
R v Woolin
R v Woolin
Jury to feel sure that the death or serious bodily ha was a virtual certainty as a result of the defendant’s action
And the defendant appreciated that this was the case.
Is oblique intention merely evidence of intention?
Case law suggest so…
R v Moloney = state of mind could only be evidence of intentin
R v Matthews and Alleyene
Foresight of virtual certainty was only evidence of intention.
What has been greatly criticised by academics?
The proposition that foresight of virtual certainty can be evidence of intention, without being intention.
When is oblique intent used?
Rarely
When facts require it, intention is only form of mens rea for the offence.
Defence of intoxication
- More likely to be successful if involuntarily intoxicated.
Kingston
With involuntary intoxication, court will ask did the defendant form the mens rea even though intoxicated.
With voluntary intoxication, when will a defendant be deemed reckless?
If they would have forsaw the risk of harm sober
Coley, McGhee and Harris
Defence of consent
Availability depends on the seriousness of the offence.
Ag Reference (No 6 of 1980)
If offence is assault or battery, defence of consent is available if the victim consented, or defendant honestly believed they were consenting.
R v Brown
If D intended to cause the offence of actual bodily harm or above, consent is not available
unless some public interest exceptions apply
What are public interest exceptions to the offence of actual bodily harm?
- Medical treatment
- Sport
- Horseplay
- Tattooing / piercing
- Sexual gratification
- Accidental infliction
Defence of self defence
Cane be used in protection of yourself, another or property.
WIll be acquitted if successful.
When is a defendant entitled to rely on defence?
If defendant honestly believed the use of force was necessary.
Level of force the defendant used in response was objectively reasonable given all the circumstances.
Defence of mistake
Mistake of fact or civil law that means mens rea not fulfilled.
Is ignorance of criminal law a defence?
NO!
Motive and intention
These are distinct
Having a motive does not mean you intend to kill.
Chandler v DPP - FACTS
Demonstration against nuclear weapons - non violent immobilisation of RAF aircraft.
Charged with conspiracy to commit breach to the Official Secrets Act 1911
Chandler v DPP - HELD
Two purposes
1) immobilise aircraft
2) influence abandonment of nuclear weapons
If guilty of immediate purpose then guilty regardless of longer term benefits.
Motive - evidence of intention case
R v Hill
R v Hill
Motive can be used as evidence of intention
What are the three additional principles of criminal liability
- Coincidence of AR and MR
- Transferred malice
- Mistake
Coincidence of AR and MR
Generally AR and MR must occur at the same time
What are the courts flexible interpretations to get round the need for coincidence of MR and AR?
- Continuing act theory
- One transaction principle
Continuing act theory
If they form the mens rea at some point during the actus reus occurring, then can be found guilty
Fagan
Fagan v Met Police Commissioner
Policemans foot
Accident
But then refused to move - became mens rea
Battery continued while the care at rest over the foot.
One transaction principle
Courts will sometimes categorise the actions of the accused as a series of acts making up one transaction
Enough for the defendant to have mens rea at somepoint during the transaction
Thabo Meli
Thabo Meli
Clonked defendant over the head. Thinking they killed him, dumped body over cliff. Then died.
Mens rea at point of hitting over head, not at dumping of body - but all one transaction
Extension of the one transaction principle
To cover cases where there has been no prior planning.
Le Brun
R v Le Brun
Assaulted wife and hit her jaw, dragged her body home.
Accidently dropped her and fractured skull. Shd died.
Transaction continued so long as the defendant was trying to cover up the crime he believed he had committed
If it is unclear which of the defendant’s acts were the actus reus….
Then the defendant must have the mens rea for the relevant crime when does each of the acts constitute the actus reus.
AG’s Refs
AG’s Ref
Unclear whether victim died from strangulation or stabbing…. unecessary to prove.
Transferred Malice meaning
When defendants’ mens rea is transferred from the intended harm to the actual harm.
ie doesnt matter who you end up killing, if you meant to kill someone.
Transferred malice cases
R v Latimer
R v Mitchell
R v Latimer
Hit the wrong person with a belt.
Intention to injure the other person could be transferred.
Convucted.
R v Mitchell
Transferred malice applied to manslaughter.
Causing the wrong person to fall to their death.
Limits to transferred malice - Case
R v Pembilton
* Threw stone at crowd of people - broke glass instead.
* Quashed conviction for criminal damage as different mens rea.
Limits to transferred malice
Not possible to mix and match the mens rea of different crimes
What needs to be considered to figure out if mistake has been made?
1) Ignorance of the law
2) Mistakes that negate the mens rea
Ignorance of the law
Defendant does not know - will not escape liability
R v Bailey
