5.1 and 5.2 Criminal Liability Offences

Question 1

What is the AR and MR in criminal liability?

Answer 1

AR - Actus Reus (guilty conduct)
MR - Mens Rea (guilty mind - determined subjectively / objectively

Question 2

How is ‘intention’ determined as Mens Rea?

Answer 2

Subjective
What was the defendant thinking at the time (aim, desire, purpose)

Prosecution has the burden of proof

Question 3

How is ‘recklessness’ determined as Mens Rea?

Answer 3

The taking of an unjustified risk
Subjective (Cunningham)

1) Was D aware that there was a risk that his or her conduct would cause a particular result?

2) Did the defendant foresee the risk and go ahead and take this risk anyway?

Question 4

How is ‘negligence’ determined as Mens Rea?

Answer 4

Objective
1) What would a reasonable person placed in the same situation have done?
2) Foresaw a risk and unreasonably concludes that it does not exist

Question 5

What is the rule with strict liability?

Answer 5

The defendant is guilty, regardless of intent (e.g. drunk driving)

Question 6

What is the rule with ‘transferred malice’?

Answer 6

The AR and MR should be for the same offence

Question 7

Describe the AR and MR of Simple Criminal Damage

Answer 7

AR: Damage or destruction / Of Property / Belonging to another without lawful excuse

MR: Intention / Recklessness to damage and knowledge / recklessness as to whether property belongs to another

Question 8

Describe the AR and MR of aggravated criminal damage

Answer 8

AR: Damage or destruction / of property / belonging to SELF OR OTHER and without lawful excuse

MR: Intention / reckless to damage PLUS ulterior MR (intention / recklessness as to endangerment of life by the destruction or damage)

Question 9

Describe the AR and MR of simple assault

Answer 9

AR: Causing the victim to / apprehend / immediate and / unlawful personal force

MR: Intention / recklessness to cause such apprehension

Question 10

Describe the AR and MR of battery

Answer 10

AR: The infliction of / unlawful personal force / upon the victim

MR: Intention / recklessness to cause such infliction

Question 11

Describe the AR and MR of actual bodily harm (ABH)? s.47 OAPA

Answer 11

AR: Assault / Occasioning / ABH
MR: Intention / Recklessness as to the assault

**No need for defendant to have intended / foreseen ABH - assault is enough.

Question 12

Describe the AR and MR of grievous bodily harm (GBH)? s.20 OAPA

Answer 12

AR: Wounding or / causing GBH
MR: Malicious intention / recklessness to ABH

**Some level of harm, not necessarily actual level of harm (GBH)

Question 13

Describe the AR and MR of grievous bodily harm (GBH)? s.18 OAPA

Answer 13

AR: Wounding / Causing GBH
MR: Intention to cause GBH or / Intention to prevent or resist lawful apprehension of any person (resisting or preventing arrest)

Question 14

What is the definition of murder?

Answer 14

Specific intent crime - the unlawful killing of a reasonable creature in being under the King’s peace with malice aforethought

Question 15

Describe the AR and MR of murder

Answer 15

AR: Unlawful killing of / a living person / in the King’s peace

MR: Malice aforethought (direct/indirect intention to kill or cause GBH)

Question 16

Describe what is meant by direct intention?

Answer 16

Defendant desired something to happen - it was his aim, purpose or goal

Question 17

Describe what is meant by indirect intention (applicable to murder)?

Answer 17

Defendant’s primary aim or desire was not the forbidden consequence (death, GBH) but he foresaw the consequence as virtually certain.

Question for jury: If D foresaw the consequences as virtually certain, he did intend it.

Question 18

What is meant by unlawful (and dangerous) act manslaughter?

Answer 18

The act was unlawful and dangerous and killed a living person (causation required).

Death but MR of intention is lacking.

Question 19

What is the MR of unlawful act manslaughter?

Answer 19

The defendant committed an unlawful and dangerous act (causation required).
*The defendant does not need to have foreseen death, harm or death does not need to be reasonably foreseeable as long as the act is dangerous.

Question 20

What is meant by gross negligence manslaughter?

Answer 20

Gross negligence manslaughter causes death but the MR of intention is lacking

Question 21

Describe the AR and MR of gross negligence manslaughter

Answer 21

AR: Duty of care to victim / breach poses risk of death / breach causes death (causation required)

MR: Breach of duty (negligence) / breach was ‘grossly negligent’

Question 22

What is meant by ‘common assault’?

Answer 22

Common assault is simply a term used to capture both the offences of assault and battery that fall under the remit of the most minor of assaults. (s.39 CJA 1988)