5.1: Understanding and analysing criminal liability Flashcards by Harriet Hudson-Brightmore

What is the standard of the burden of proof?

Beyond reasonable doubt

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Actus reus means

Guilty act

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Mens rea means

Guilty mind

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Offences are broken down into

Elements

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Related offences may share

Elements - the more serious version of an offence may have more elements than the lesser offence

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s18 and 20 of Offences
Against the Person Act 1861 share what elements

Both offences share the element of causing or inflicting grievous bodily harm. However, the offence under s 18 is more serious because of the added need to prove intention
to cause grievous bodily harm and this is why s 18 carries a maximum life sentence.

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S20 of the OAPA carries

Element of causing or inflicting grievous bodily harm but does not require an intention (unlike section 18) and therefore the maximum sentence is only 5 years imprisonment

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What are the ‘duty’ situations where liability will be found if a D commits an omission

a contractual duty to act
a familial duty to act ie. Mother and daughter
where one person has assumed the care of another, and
where one person has created a dangerous situation that knowingly puts another at risk.

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Why is the law not keen on imposing criminal liability for failing to act?

To place an obligation on everyone to positively act at all times would be impossible to police

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What are the three main types of mens rea:

Intention, recklessness, and negligence

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Negligence involves (mens rea)

Negligence involves judging the actions of the defendant against what a reasonable person placed in the same situation would have done.

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Criminal offences require what in terms of negligence

As criminal liability leads to more serious consequences than civil liability, criminal offences tend to require gross negligence, for example, gross negligence manslaughter. This is a level of negligence that is so serious that compensation or other such tortious remedies are insufficient

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What offences do not require a mens rea requirement?

Strict liability offences

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Give an example of strict liability offences?

Driving without insurance
Speeding offences

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Coincidence of actus reus and mens rea

Means that the defendant must have the necessary mens rea at the same time that they commit the actus reus

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Assault and battery are governed by

Common law

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The OAPA governs

Non-fatal offences against the person
Offences against the Person Act 1861

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Common assault is a term used to refer to

The common law offences of assault and battery

Offences of common assault are charged under

s 39 of the Criminal Justice Act 1988

Common assault is used interchangeably to describe

Assault and battery

What is the actus reus and mens rea of Assault?

Actus reus: causing the victim to apprehend immediate unlawful physical
force
Mens rea:
* intention to cause the victim to apprehend immediate unlawful physical
force, or
* recklessness as to causing the victim to apprehend immediate unlawful
physical force.

If the person does not think there is an actual threat or feel the immediate apprehension of a threat there can be

no assault

A battery encompasses

A battery involves the physical application of unlawful force to another person.

There is no need
for any injury to have been sustained; it is enough that force is inflicted.

What is the actus reus and mens rea of battery?

Actus reus: application of unlawful physical force Mens rea: intention to apply unlawful physical force or recklessness as to the application of unlawful force

What does ‘the mens rea for battery includes the intention to apply unlawful physical force or recklessness as to the application of unlawful physical force’ mean?

the defendant must either intend to apply unlawful physical force or FORSEE that there is a risk that their actions will result in the application of unlawful physical force

What is the actus reus of Assault occasioning actual bodily harm (OAPA s 47)

actus reus of assault or actus reus of battery occasioning actual bodily harm

What is the mens rea of Assault occasioning actual bodily harm (OAPA s 47)

* mens rea of assault, or * mens rea of battery.

What are the actus reus elements for assault occasioning actual bodily harm (s470

- assault / battery - occasioning - (which means causing) - actual bodily harm which is defined as an injury which interferes with the health of the victim

Inflicting grievous bodily harm or a wound

OAPA Act s 20 The defendant does not have to intend or forsee grievous bodily harm or wounding

OAPA Act s 18

Causing grievous bodily harm or a wound with intent

What is the difference between s18 and s20?

s20 has a different mens rea because it requires intent. A person will only be guilty of a s 18 offence (either a wound or GBH) if they intended to cause grievous bodily harm, meaning really serious harm.

All of the non-fatal offences involve 'unlawful force.' What does this mean in terms of defences?

Consent can be a defence

For consent to be a valid defence it must be?

- valid (age and capacity to do) ie. cannot be drunk or suffer from a mental disorder - informed - freely and genuinely given

Examples of intended harms that a person can consent to:

* medical treatment * playing in sports matches - along as its not beyond what is reasonable or fair in the game * tattooing and ear piercing, and * religious acts.

If grievous bodily harm was intended or foreseen as part of the activity, consent will

act as a defence

A person can also consent to

the risk of unintended harms

What is an unintended harm?

- sports or games - rough play that involves risks - dangerous exhibitions (such as stunts and dangerous magic tricks)

If a person is injured in a sports match beyond what is in the rules, can it be that they have consented to the unintended harm?

No - if the conduct is significantly outside of the rules of the sport, a criminal conviction is still possible

The test for factual causation

we ask ourselves whether the consequence would have happened but for the defendant’s act. This is known as the “but for” test: R v White [1910] 2 KB 124.

To be criminally liable also require

Legal cause

What is the test for legal causation

The legal test is to ask if it was an “operating and substantial” cause of the result: R v Smith [1959) 2 QB 35.

If the defendant’s act has been the factual and legal cause of the consequence - they will be?

Criminally liable

novus actus interveniens

intervening act which breaks the chain of causation

What is the thin-skull principle?

provides that the defendant must “take his victim as he finds him.' This means that, if the victim has an unusual or unknown condition that means they are more vulnerable to harm than others, then the defendant cannot escape liability by blaming the condition for the injury rather than their particular action.

Reasonable foreseeability will not

Break the chain of causation - if their action is a result of something that the defendant has done, then (provided the victim’s response was reasonably foreseeable) the chain of causation is not broken by the victim’s action and the defendant remains responsible

The chain of causation can be broken by

various intervening acts such as third party actions, natural events