Causation

Question 1

what is the importance of mens rea for determining criminal liability

Answer 1

must be a clear connection between the agent and the actus reus

Question 2

what are some scenarios in which the mens rea isn’t required in our jurisdiction

Answer 2

• Strict liability
• Vicarious liability
• Corporate Criminal liability

Question 3

what is the general rule in regards to common law offences

Answer 3

courts must decide if mens rea has been established ‘beyond all reasonable doubt’

Question 4

what is the general rule in regards to statutory offences

Answer 4

legislation criminalises conduct, and the extent and definition of liability relating to statutory offences is set down in the statute

Question 5

briefly explain Statutory offences and mens rea

Answer 5

one or more of the elements of the offences in the actus reus don’t require mens rea to be proven

Question 6

what was held in Gammon (hong kong) Ltd v Attorney General of Hong Kong 1985

Answer 6

If the court is satisfied that parliament really did not wish mens rea to be considered, this principle may yield

Question 7

what must the crown prove in regards to statutory offences

Answer 7

only needs to establish that the accused carried out the actus reus of the offence, no need to prove mens rea

Question 8

what was held in Sweet v Parsley 1970

Answer 8

Mens rea is essential unless some ingredient can be found for holding that it is not necessary

Question 9

definition of Strict liability offences

Answer 9

• Prohibited in the public interest
• To ‘control certain forms of anti-social activity’

Question 10

briefly explain vicarious liability

Answer 10

• Situation where there is no mens rea but the accused can still be held criminally liable for the actions of another person
• Usually limited to cases of licensing offences
• And to cases where there is a clear and appropriate relationship between accused and agent

Question 11

how may vicarious liability be determined

Answer 11

by reference to the statute creating the offence – expressly created or implied from a consideration of the words and the object of a statute

Question 12

briefly explain Corporate Criminal Liability

Answer 12

No traditional mens rea, as the person who commits the offence is a corporation – either have derivative liability or tailor the liability to the sorts of organisations that corporations are

Question 13

for what crimes may corporate bodies be held liable for

Answer 13

• for statutory crimes, and some common law crimes
• Offences of strict or vicarious liability can also be pursued against corporations
• Can commit statutory ‘permitting’ offences that require mens rea

Question 14

what was held in Transco v HM Advocate 2004

Answer 14

• Liability depends upon an identifiable human agent’s criminal responsibility for both the AR and MR, following the ‘controlling mind’ fiction
• Principles apply to attributing criminal liability to a corporate body when the offence involves mens rea

Question 15

what was held in the Corporate Manslaughter and Corporate Homicide Act 2007

Answer 15

Creates a single offence of ‘corporate homicide’ that is punishable by a fine and indictable only in High court

Question 16

how may an organisation be guilty of an offence of ‘corporate homicide’

Answer 16

If their activities;
- Cause a person’s death
- Amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased

Question 17

What is causation

Answer 17

Linking of a particular result or consequence to a prior action, behaviour, state of affairs, or event

Question 18

Why is causation important

Answer 18

Creates a link between the actions of the accused and the results of those actions - so causation is important for result crimes

Question 19

what are the two elements when determining causation for criminal liability

Answer 19

• Factual causation
• Legal causation

Question 20

how is factual causation proved

Answer 20

‘but for’ test, expressed in negative terms

Question 21

how is legal causation proved

Answer 21

judging which factually contributing causes are relevant to the completion of the actus reus – various factors which guide that judgement

Question 22

what are Novus Actus Interveniens

Answer 22

actions which break the casual chain and so impede the construction of an actus reus

Question 23

what are the downsides of the But for test

Answer 23

• Can be problematic
• Difficult to establish when there are multiple casual factors, or concurrent causes (Hendry v HM Advovcate)

Question 24

briefly explain Direct or Legal causation

Answer 24

• Factors which determine whether the factual cause can be attributed as a cause in law
• No single test, can be difficult to determine
• Looks at proximity, foreseeability and principles of legal causation

Question 25

what is the thin skull rule

Answer 25

• take the victims as they are
• Accused will be criminally liable, even if death or injury results from some pre-existing weakness or condition of victim

Question 26

cases for the thin skull rule

Answer 26

• physical; Bird v HM Advocate
• psychological; R v Blaue

Question 27

briefly explain Novus Actus Interveniens and breaks in the causal chain

Answer 27

Intervening acts and events that can break the causal chain, eliminating criminal liability for the results or consequences of the action

Question 28

briefly explain intervening acts of the Victim/ Victim’s contribution and what the principle is in Scotland

Answer 28

• Victim makes a significant act which is considered to break the causal chain
• In Scotland, a general principle has been accepted that a victim is not under any legal duty to mitigate the effects of the injuries inflicted upon them

Question 29

what was held in R v Roberts (Kenneth Joseph) (1971)

Answer 29

Reasonableness of the behaviour of the victim can affect the causal chain

Question 30

what was held in Khaliq v HMA1984 and Ulhaq v HMA 1991

Answer 30

cases highlight that the breaking of the causal chain by intervening acts of the victim is very much a case-by-case, there is no consistent general rule for its application

Question 31

what is the general rule of intervening acts of third parties

Answer 31

acts of third parties break the causal chain if they’re voluntary – supersedes the original conduct of the accused

Question 32

what was held in R v Pagett 1983

Answer 32

The accused may still be guilty as an accessory or an attempter, even where causal chain is broken

Question 33

case for grossly negligent medical treatment that could break the causal chain

Answer 33

R v Jordan

Question 34

what are the courts views on Intervening negligent medical treatment/ Malregimen

Answer 34

• Extremely rare and courts would be very reluctant to apply
• Courts are reluctant to shift responsibility for death or further harm to those doing the best to help the victim, even if negligent