Causation Flashcards
what is the importance of mens rea for determining criminal liability
must be a clear connection between the agent and the actus reus
what are some scenarios in which the mens rea isn’t required in our jurisdiction
- Strict liability
- Vicarious liability
- Corporate Criminal liability
what is the general rule in regards to common law offences
courts must decide if mens rea has been established ‘beyond all reasonable doubt’
what is the general rule in regards to statutory offences
legislation criminalises conduct, and the extent and definition of liability relating to statutory offences is set down in the statute
briefly explain Statutory offences and mens rea
one or more of the elements of the offences in the actus reus don’t require mens rea to be proven
what was held in Gammon (hong kong) Ltd v Attorney General of Hong Kong 1985
If the court is satisfied that parliament really did not wish mens rea to be considered, this principle may yield
what must the crown prove in regards to statutory offences
only needs to establish that the accused carried out the actus reus of the offence, no need to prove mens rea
what was held in Sweet v Parsley 1970
Mens rea is essential unless some ingredient can be found for holding that it is not necessary
definition of Strict liability offences
- Prohibited in the public interest
- To ‘control certain forms of anti-social activity’
briefly explain vicarious liability
- 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
how may vicarious liability be determined
by reference to the statute creating the offence – expressly created or implied from a consideration of the words and the object of a statute
briefly explain Corporate Criminal Liability
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
for what crimes may corporate bodies be held liable for
- 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
what was held in Transco v HM Advocate 2004
- 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
what was held in the Corporate Manslaughter and Corporate Homicide Act 2007
Creates a single offence of ‘corporate homicide’ that is punishable by a fine and indictable only in High court
how may an organisation be guilty of an offence of ‘corporate homicide’
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
What is causation
Linking of a particular result or consequence to a prior action, behaviour, state of affairs, or event
Why is causation important
Creates a link between the actions of the accused and the results of those actions - so causation is important for result crimes
what are the two elements when determining causation for criminal liability
- Factual causation
- Legal causation
how is factual causation proved
‘but for’ test, expressed in negative terms
how is legal causation proved
judging which factually contributing causes are relevant to the completion of the actus reus – various factors which guide that judgement
what are Novus Actus Interveniens
actions which break the casual chain and so impede the construction of an actus reus
what are the downsides of the But for test
- Can be problematic
- Difficult to establish when there are multiple casual factors, or concurrent causes (Hendry v HM Advovcate)
briefly explain Direct or Legal causation
- 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
what is the thin skull rule
- 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
cases for the thin skull rule
- physical; Bird v HM Advocate
- psychological; R v Blaue
briefly explain Novus Actus Interveniens and breaks in the causal chain
Intervening acts and events that can break the causal chain, eliminating criminal liability for the results or consequences of the action
briefly explain intervening acts of the Victim/ Victim’s contribution and what the principle is in Scotland
- 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
what was held in R v Roberts (Kenneth Joseph) (1971)
Reasonableness of the behaviour of the victim can affect the causal chain
what was held in Khaliq v HMA1984 and Ulhaq v HMA 1991
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
what is the general rule of intervening acts of third parties
acts of third parties break the causal chain if they’re voluntary – supersedes the original conduct of the accused
what was held in R v Pagett 1983
The accused may still be guilty as an accessory or an attempter, even where causal chain is broken
case for grossly negligent medical treatment that could break the causal chain
R v Jordan
what are the courts views on Intervening negligent medical treatment/ Malregimen
- 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
