As law Flashcards
Actus reus and omissions - As law
- Actus reus is the physical element required for a criminal offence- also known as the guilty act.
- The actus reus must be a voluntary act- because if D had no control over his actions then there is no AR
- Seen in the example of Hill v Baxter where the judge provided a hypothetical example of a driver who lost control of his car when attacked by a swarm of bees, and stated that in such a case there would be no criminal liabilty.
- most cases the AR is a positive act but there are circumstances where omissions can be the basis of AR, the the law only makes a person liable for his failure to act where he had a duty to act.
- Duty arises in many ways
- Contractual duty; R v Pitwood where he had a contractual duty to close the gate which he failed to perform resulting in a man dying.
- Voluntary duty; stone and dobinson where D voluntarily assumed responsibility and failed to perform the duty as he failed to get medical help needed.
- Official position; dytham ; where police officer who stood by while V got kicked to death. D had a duty through his official position.
Causation - As law
- Causation is the link between Ds guilty act and the criminal consequence. Here the prosecution must prove both factual and legal causation
- The key test for factual causation is the ‘but for test’ as illustrated in Pagett where D used pregnant GF as a human shield- held she wouldnt have died but for his acitons.
- Once established factual causation- prove legal causation where the key test is the original injury must be the operative and substantial cause. illustrated in Smith where the wounding was the operative and substantial cause.
- Link between act and the consequence is called the chain of causation which must remain unbroken for criminal liability. It can be broken by a new interevening act (NIA) which included the acts of a 3rd party- (jordan) where d was recovering but despite nurses knowing reaction gave overdose of antibiotics.
- Or broken by victims own act- seen in WIlliams where it was unreasonable as he jumped out of the car at the fear of being raped.
- However chain remains unbroken where the thin skull rule applies as d should take his victim as he finds him.
Mens rea of As law
- MR is defined as the mental element required for criminal liability.
- Highest level is direct intention- meaning d has the aim, desire and purpose to bring about a directly intended prohibited consequence. illustrated in Mohan where d swerved towards a police man intending the consequences 3. Next level is oblique intent where D saw his actions as having a virtual certainty consequence as seen in Matthews and Ayleen where they knew v couldn’t swim.
- Lowest level is subjective recklessness where D has the conscious of taking a unjustifiable risk and proved that realised the risk but decided to take it anyway. Illustrated in Cunningham where D removed the gas metre not intentionally harming the neighbouring house.
state of affairs
- State of affairs are circumstance crimes where Ds actions are beyond their control.
- Where D find themselves in a position thats no fault of their own
- These can be possession crimes such as having stolen goods, drugs and fire arms
- Can also be where D is drunk and in charge of a vehicle.
- example is Larsoneur 1933 where though at no fault of his own she was forced back to England from Ireland charged with being an illegal alien.
Coincidence of AR and MR - as law
- General principle is that the AR and MR of a crime should occur at the same time. If they don’t there is no criminal liabilty. This is called the contemporaneity rule
- The courts have modified this rule by saying a series of linked acts can be treated as one long continuing act.
- As established in Fagan v mpc 1969, where D acciendently drove car on polices foot and refused to move it. Leave the car on the foot (AR) was seen as a continuing act - which later coincided with the MR which formed later when he refused to move it - therefore coincide of MR and AR formed
- Sometimes the continuing act is a series of connected acts ( chain of events ) as established in thabo meli 1954
D hit victim over the head intending to kill him. He tried to make it look like an accident and threw him of the cliff. The mens rea continued throughout as he set out to kill him and the AR was the series of continuing acts. - In Kaitamaki ; D charged with rape. AR of rape was the continuing act and when he realised she didn’t consent he formed the MR by carrying on.
Transferred malice - as law
- Occurs when Ds mens rea is transferred from intended victim to actual victim.
- Mitchell 1983- argument in post office queue where man got pushed into women who died from injuries. Although no direct contact between V and D she was injured due to Ds actions as the MR transferred to V
- Latimer 1886; swinging a belt- aiming to hit someone but ended up hitting an innocent bystander. MR transferred from intended victim to actual victim.
- Pembilton 1884; threw a stone which hit a window instead of the person.
Malice doesn’t transfer between person and object - so no MR transferred. So cannot be guilty of criminal damage based on that MR.
Strict liability- As law
- strict liability is an offence where only the AR is needed and the MR isnt required. They are referred to as ‘no fault offences’ and comes from statue law.
- Offences guilty of SL are those that deal with public safety, social concern and regulations such as in alpha v woodward. Where D was charged with polluting the river as pipe connected was blocked, D was unware of this but it was a matter of public concern.
- In cases such as Harrow LBC v shah the offence wasn’t truly criminal and dealt with social concern therefore found guilty of SL. a lottery ticket given to minor despite signs
- In callow V kilston- offence dealt with public safety and so liable. Here the butcher got meat approved from vet and sold it- wasn’t fit for human consumption. Guilty as he had responsible for customers as a case to do with protecting the public and ensuring maintenance of regulation and standards.
JUSTIFICATION FOR;
- protects society by promoting public safety
- easier to prove
- less time in court
- encourages compliance with law
-hygiene in food is easier to enforce as no MR required
AGAINST;
- makes innocent people guilty
- even those who take care can be found guilty- Harrow v Shah where done to prevent sales.
Assault section 39- AR and MR
Actus reus;
Any act that causes V to apprehend immediate infliction of unlawful violence.
1. Only requires words or acts- no need for physical contact between D and v
2. The emphasis is on what V thought was going to happen.
3. The actus reus is complete when V apprehended to unlawful violence caused by D and V was sufficently frightened.
As seen in Logdon where V pointed a gun to V as a joke. V was terrified and court held V apprehended immediate physical violence.
4. The word immediate means violence must occur some time in very near future. Violence threatened must be immediate.
As seen in Smith v chief superintendent of working police where assault by actions alone as V feared immediate force even though D couldn’t reach V.
Words alone = Ireland 1997
MENS REA;
Stated in savage as intention to cause another to apprehend unlawful and immediate violence and recklessness as to cause AR (apprehension)
Battery - s39
Actus reus;
Unlawful application of force to another
1. The force used may be slight (merest touch)
2. Touching clothes can be sufficient as seen in Thomas where D touched hem of school girls skirt.
3. Also possible to cause battery by using indirect force as seen in haystead - D pushed girlfriend causing baby to fall/
MENS REA;
1. Stated in venna 1976 as proof that D intentionally or recklessly applied force to V.
Assult occasioning ABH - s47
ACTUS REUS;
1. Assault and battery must firstly be satified
2. Second element is occasioning- bringing about the consequence. The distinction between s47 and other offences is the degree of harm- vital aspect.
3. Third is ABH where it was decided in Chan fook that harm meant injury ( more than transient and trifling) and included physical and pychriatric injury.
3. in Smith said ABH included all body parts - hair
4. Miller ABH was any harm or injury that calculated to interfere with the health and comfort of V - scratched or bruises.
MENS REA-
1. D must intend to subject v to unlawful force or be reckless towards the fear v feels.
2. Roberts ; D has mens rea of battery- subsequent injuries merely consequence of unlawful act= sufficient AR and MR for s47.
3. Savage= intention to throw bear was sufficient for MR of abh.
section 20
Actus Reus ;
1. Act must be unlawful- maliciously wounding and inflicting GBH;
2. Wounding = breakage to the skin surface some blood loss but not internal bleeding
E.G JCC v Esienhower where D got shot in eye- not sufficient as no cut.
GBH= serious harm
disease can also be gbh = Dica 2004
MENS REA;
1. intention or recklessness as to some harm ‘maliciously’
2. some risk must be seen- realise some risk
= Parmenter 1991 = Found not guilty of s20 as risk not foreseen so guilty of s47.
section 18
ACTUS REUS;
wounding and causing GBH
- necessary to prove D was substantial cause.
- same as s20 - wounding and GBH
MENS REA;
1. specific intent as to cause GBH
2 essential to prove specific intent = Belfon - slashed face with razor.
3. foresight of consequence = If D acts virtually certain to cause GBH and realises this then enough for evidence for MR of s18.
Because AR of s18 + s20 are the same- can be charged with either.
The only difference is the MR issues. s18 has specific intent which is intent to cause GBH.
Direct intent or oblique intent whereby the jury would have to believe that D foresaw serious injury as being a virtually certain result in order to convict of s18.
criminal courts- summary offence
minor offences- triable in only magistrates court commen assault and driving offences maximum of 6 months 1. D is given a summon which is sent through the post setting a date for the D to attend court. 2. evidence 3. 1st apperance 4 - plea 5. bail 6. bail 7. guilty 8. not guilty
Either way offences
Could be tried in either magistrates or crown courts s47 or s20 PROCESS; 1. plea before venue applies to either way offences. 2. indicate 3 if guilty 4 if not serious 5 if not guilty 6 bail
Indictiable offences;
Crown court with the most serious offences tried on indicement only s18 1. cc 2. 1st hearing where charge is read out- trnsferred - plea 3. bail 4. guilty 5. not guilty
