Core Principles Flashcards
What are the key elements of criminal liability?
Actus reus + mens rea + absence of valid defence
What is the legal burden of proof and who is it on?
Prosection to prove all elements of the offence (including, in most cases, disproving a defence)
What is the evidential burden and who must discharge it?
P to prove sufficient evidence for each element (but can switch to D for certain defences)
eg: diminished responsibility
What is the standard of proof?
Beyond reasonable doubt
When the burden to raise a defense falls on D, what is the standard of proof?
Balance of probabilities (>50%)
What is the actus reus?
The guilty act/omission
What are the 4 types of AR?
- Conduct - offences only require certain acts to be committed – conduct itself is criminalised, result irrelevant (eg: perjury)
- Result - action must lead to specified consequence (eg: murder)
- Circumstances - need for particular surrounding circumstances (eg: drunk driving or property belonging to another)
- Omissions - some exceptions
What is the difference between factual and legal causation?
- Factual = acts/omissions of accused were the cause of the consequence suffered by D
- Legal = acts/ommissions of accused were a legal cause of that consequence
How is factual causation proved?
The but for test
What happens if you peform an act (e.g. poisoning) but they die of something else (e.g. heart failure)?
- No factual causation; no causal link between action and consequence
- But accelerating death can be a cause e.g. throwing child with meningitis down the stairs
How is legal causation proved?
Substantial and operating cause of the consequence
Must the consequence be attributable to a culpable act/omission?
Yes –R v Dolloway [D driving horse and cart without holding reins, child ran in front and killed. However, even though act was culpable, it did not cause child’s death (as it couldn’t be avoided)]
Fill in the blank: The culpable act must be _ _ _ cause of the consequence
More than minimal cause of the consequence
Ie: more than trivial or minimal
R v Pagett – D held girlfriend in front of him as a human shield when police fired at him. Action ‘contributed significantly’ to her death.
Does D’s act need to be the only cause of the prohibited consequence?
No
E.g. woman pulls gun on a man who runs into road and is hit by a van and dies = woman can still be a substantial cause even though not just her
How must you take your victim?
As you find them –thin skull rule (eg: Jehovah’s witnesses)
What is a novus actus interveniens?
A subsequent event/act of either the victim or TP which breaks the chain of causation = D not criminally liable
What are the 3 ways in which the chain of causation may be broken?
- Where the victim acts in a particular way
- Where a TP intervenes
- Where some event occurs
Can medical negligence break the chain of causation?
Very unlikely - unless negligent treatment was so independent of his acts and in itself so potent in causing death
R v Jordan –V’s injuries mainly healed – medical treatment was ‘palpably wrong’ and D’s liability was transferred to the medical professional
What if medical treatment was the immediate cause of death?
No – treatment must be so overwhelming as to make the original wound merely part of history – only then can it be said that death does not follow from the original wound
What if V is dropped twice on their way to the hospital and was given inadequate treatment?
Not necessarily –if original injury is still an operating and substantial cause of death
Will acts of third parties break the chain of causation?
D no longer liable if TP’s intervening act is either:
1. Free, deliberate and informed; or
2. Is not reasonably foreseeable
E.g. Pagett - D shot at police first, used pregnant girlfriend as shield who was shot by police and died. Officer’s response was not voluntary (was acting in self defence) and not reasonable foreseeable (D was shooting at officer) –> police absolved of criminal liability
What is the rule for victim’s breaking the COC?
- If they do something after the initial act but before the consequence occurs; and
- That intervention is free, deliberate and informed (ie: voluntary)
Will the victim break the chain of causation in ‘fright and flight’ cases?
Where under attack from D and V tries to escape
Only if victim’s act was so ‘daft’ that no reasonable person could have foreseen it; must beproportionality between gravity of threat and action in seeking to escape from it - but consider particular characteristic of the victim and that in agony of moment he may have acted without thought
ie: Court will consider how foreseeable V’s response was
I.e. victim can do wrong/stupid thing and still not break chain
Eg: A puts B under duress to pay 10 extra taxi fee. B decides to jump out of the moving vehicle and suffers head injuries. Response is not reasonably forseeable
If the victim refuses medical treatment, does this break the chain of causation?
No - Ds must take victims as they find them in both mind and body; did not matter whether wound instantly mortal or later became cause of death due to refusal of treatment
Will the victim’s suicide break the chain of causation?
If it was reasonably foreseeable/D’s unlawful act was significant and operating cause of death e.g. removing pianist’s fingers, paralysing sports person - but not if it was a voluntary and informed decision on victim to act of injuries from D healed
What is the effect of the thin skull rule?
As D must take victim as they find them, they cannot escape liability if the victim suffers greater harm than usually expected owing to a pre-existing infirmity/peculiarity
Hayward - chased wife into road who collapsed and died from abnormal thyroid condition = had to take condition as he found it
Will natural events (Acts of God) break the chain of causation?
Only if they are ‘extraordinary’ (eg: a gas explosion) and not reasonably foreseeable e.g. D knocks V unconscious on beach, tide drowns V = D legally caused V’s death as it was foreseeable
What is the general rule on omissions?
D cannot be criminally liable for a failure to act as there is no general duty to prevent harm
But when is a legal duty to act and what are the duties?
Necessary to secure conviction based upon a failure to act
1. Statutory duty (eg: failure to provide specimen of breath in Road Traffic Act or for parents to care for children under Children Act)
**Common Law offences ** = general rule is that duty only arises if D was under a positive duty to act:
2. Duty arising out of contract (eg: railway worker failing to put down barrier; train collided and killed people – worker had contractual duty to protect public)
**3. Special relationship **(eg: parent and child)
4. Voluntary assumption of DOC (eg: a sister assuming responsibility for other sister)
5. D creates a dangerous situation (eg: D fails to put handbrake down, car rolls down a hill and kills children)
- Legal duty to act - public office holder
Can employees/heathcare professionals be liable for homicide if they fail to take steps to prevent those in their care from suffering harm?
Yes, also for:
- Doctors and nurses (to take care of patients)
- Members of emergency services (to safeguard public)
- Lifeguards (to ensure safety of swimmers)
When will a special relationship make a D liable for omission?
Legal duty to act
Doctors/patients, parents/children, spouses
- Husband liable for failing to summon medical assistance for wife after fall
- Starving own child
- Might be guilty by failing to separate conjoined twins who could both die
When will a voluntary assumption of a DOC make a D liable for omission?
Legal duty to act
- Failing to execute assumed responsibility of infant, mentally ill etc.
- Failing to summon medical assistance/care for a deteriorating family member (for whom they have assumed responsibility)
- Failing to summon medical assistance for a friend you have taken drugs with after trying to revive them
Must be substantial
E.g. putting blanket over face of someone you have just hit with your car is not enough to assume care (MCQ)
When will a breach of contractual duty make a D liable for omission?
Legal duty to act
Pittwood - being under contractual duty to close a gate when train was coming; result is death
When will a creation of a dangerous situation make a D liable for omission?
Legal duty to act
- Setting a room on fire and only moving to another room to avoid
- Supplying drugs to someone and then not calling ambulance when they are dying
Not expected to risk life to save others
When D creates a dangerous situation, what duty do they have?
Duty to take reasonable steps to avert the danger –depends on circumstances
When will a legal duty to act make a D liable for omission?
Legal duty to act
As a policeman, witnessing an attack and not trying to stop
What is mens rea? Does it mean someone is guilty?
Means guilty mind, but only means that in law D had required mental element for crime
What are the different types of mens rea?
- Intention (direct or oblique)
- Recklessness - unjustifiable risk that D appreciates but goes ahead anyway
- Knowledge and belief - aware of existnece of circumstances or at least possibly aware e.g. theft
- Dishonesty - mostly to do with theft
- Negligence - actions fall below standard of reasonable person (disregard for life and safety of others)
What is direct intention?
D wanting to achieve something or having a specific purpose/outcome, even if chances of success are slim
Should be given ordinary meaning
What is oblique intention? Is it a different type of intention?
- Where consequence is not D’s purpose but is virtually certain to happen (objective) and D appreciates this (subjective)
- Is not a different type of intention, but rather evidence of intention (a way of finding it)
R v Woollin – D was angry and threw child against wall. Didn’t intend to kill, but it was a virtually certain consequence. However, D is unlikely to have foreseen it, and was therefore convicted of manslaughter.
- Eg of virtually certain: Playing russian roulette
- Eg: Striking miners throwing bricks from bridge in an attempt to block the road, but it kills a taxi driver
Is not desired and might even regret
the ‘a’ is later on in both the word ‘virtuAlly’ and ‘certAin’ - how to remember that Appreciates is second part (subjective is second part)
Do you consider what a reasonable person would have foreseen for oblique intention?
The test is technically what D themselves foresaw –but what a reasonably person would have foreseen is good indication of what D did foresee
When should oblique intention be used?
Where intention is the only form of MR for the murder e.g. if offence allows MR in form of intention or recklessness you should not refer to oblique intent
Is intention the same thing as motive?
Can intend both ends but they are not the same
E.g. D puts bomb in airplane he has insured: his motive in placing bomb comes from intention to claim on insurance. The destruction of airplane is his direct intention and the death of the pilot is his oblique intention
Can motive be used as evidence of intention
Yes
What guidance to the meaning of ‘intention’ should be given?
Its ordinary use in everyday language; leave it to common sense of jury
What is the test for recklessness?
When a person sees the risk but goes ahead anyway and harm results
- D foresaw risk of harm and went ahead anyway (subjective) and
- In circumstances known to D it was unreasonable / unjustified to take risk (objective)
Unintentional but blameworthy
“That was S(ubjective)O(bjective) reckless!”
When would a risk taken be justifiable?
If there is social utility/value to the activity against amount of harm that might happen
Justification of risk assessed according to the standards of a reasonable people
Russian roulette = no social utility = slightest possibility of harm is enough
Surgical operation = high social utility = high probability of grave harm necessary
What degree of risk is necessary and how carefully must D consider the risk re subjective part of the test (foreseeing the risk of harm)?
- The degree of risk; foresight of any risk is sufficient
- How carefully D considers presence of risk; some foresight of risk all that is required, however fleeting it might be
Standard was diff for crim damage –but now everything is consistent
Looks at whether D ACTUALLY foresaw the risk (not whether D should have or whether a reasonable person would have)
Eg: R v Cunningham – D broke a gas pipe. Gas leaked next door and D was guilty of maliciously administering noxious substances, but no oblique intention found as D was not aware of gas escaping and endangering others
Whose mind foresees the risk?
D or reasonable person?
The D, not reasonable person
I.e. D with schizophrenia made fire and may not have been aware of risk
What will the jury consider when deciding if D’s risk was unreasonable?
The social utility of D’s conduct; if no social utility at all = tiny risk is unjustified
What circumstances should jury ignore when considering the reasonability of taking the risk?
Those unknown to D e.g. bin contains flammable fluid put there by someone else and D throws lit cigarette into it
Summary of Recklessness
What is the difference between recklessness and negligence?
- Recklessness is the conscious taking of an unjustifiable risk
- Negligence is inadvertent
Negligence only occurs for a few criminal offences –eg: gross negligence manslaughter
What is the test for negligence for careless driving?
s.3 RTA 1988
Driving must fall below what would be expected of a competent and careful driver
NOT CONCERNED WITH STATE OF MIND, ONLY STATE OF DRIVING
Consequences are also irrelevant – the conduct itself (careless driving) gives rise to criminal liability
Summary of Negligence
What are strict liability offences?
Where it is not necessary to prove MR or negligence in respect to at least 1 element of AR
Aim is to discourage incompetance
Examples of strict liability offences
- Speeding
- Driving under the influence
- Food safety
- Consumer protection
- Misuse of drugs
- The environment
- Road safety
- Health and safety
If statute wording is silent, can presumption in favour of MR be established?
Yes – but is rebuttable
Should D have the relevant MR at the precise moment he commits the AR?
Must there be a ‘coincidence’ of AR and MR?
Generally yes, but there are 2 interpretations to get around this:
1. Continuing act theory
2. The one transaction principle
What is the continuning act theory?
D can be guilty of the offence if they fom the MR at some point during the AR continuing
Fagan - D refused to move car after driving onto policeman’s foot; formed MR after doing this not when doing it
What is the one transaction principle?
Is enough for D to have MR at some point during a series of acts which make up one single transaction
I.e. did not have MR at time of doing exact thing but did overall
Thabo Meli - D struck V on the head intending to
kill him. As part of the plan to make the death look like an accident and believing V to be dead, D rolled the body over a cliff. In fact, V died of exposure some hours later. D was convicted of murder on the basis that it was ‘impossible to divide up what was really one series of acts in this way. formed single transaction and was enough that MR existed at some point
What is the difference between the continuing act theory and one transaction principle?
- Continuing act = MR formed at some point during AR continuing
- One transaction = did not have MR when doing exact thing but did overall
Is the one transaction principle limited to cases where there is prior planning?
Prior planning like Thabo - hit V over head with intent to kill, rolled body of cliff etc…
No - can view first act (done with MR) as the cause of subsequent acts (not done with MR but caused by the act done with MR)
Le Brun - D assaulted wife and knocked unconscious, then dropped her and fractured skull killing her - unlawful act and act causing death were all part of same transaction
What happens in the one transaction principle when it is not clear which of D’s acts is the AR?
E.g. cut throat and pulls up stairs with rope around neck - stabbing or strangulation??
Unnecessary to prove which act caused death - D must have MR for relevant crime when D does each of acts which could constitute MR
What is transferred malice?
Where D’s intention or recklessness to commit a crime against a person is transferred to an unintended victim and combines with AR to complete the offence
E.g. D shoots intending to kill X but misses and kills Y instead
R v Latimer – D strikes A with belt, but it ricocheted off and hit a woman nearly. D was found guilty of assault under transferred malice
Does transferred malice apply where D stole or damaged the ‘wrong’ property?
Yes
Eg: intended to scratch her husband’s car but damages colleague’s car by mistake
What can transferred malice not be used for?
Where D has MR for one crime and AR for another; D must have MR for crime charged
Pembilton - D threw stone at crowd but missed and broke glass window; could not be charged under criminal damage as MR was intention to injure a person (not damage property)
Where is transferred malice unnecessary?
Where the offence may be committed recklessly
Eg: A intends to throw stone at B but hits C instead. Can use transferred malice, but can also use recklessness (if she foresaw risk and took it anyway)
Will ignorance of the law (not knowing it) avoid liability even if ignorance is reasonable?
No - ignorance no excuse
Bailey - D convicted of offence created by statute when on high seas; could not possibly have known
Can a mistake as to element of AR negate MR?
E.g. taking umbrella from restaurant thinking it is theirs
Yes - mistake does not have to be reasonable (but may be claim in civil)
Unless MR requirement is negligence meaning mistake must be reasonable
What does a valid defence do to D’s liability?
Renders D not criminally liable
Are all defences available for all crimes?
- General defences available to almost any crime (e.g. self-defence, intoxication)
- Some defences only operate re specific crimes (e.g. loss of control and diminished responsibility both only available for murder)
Is intoxication a valid defence?
With drugs or alcohol
Drunken intent is still intent but…
* Defence more likely if involuntarily intoxicated i.e. drugged
* If voluntarily intoxicated, D can be deemed reckless if they would have foresaw risk of harm if sober
Is consent a valid defence?
- If ABH or above, consent is not available unless public interest exception applies (medical treatment, sport, tattooing)
- If offence is assault or battery, consent available if (D honestly believed that) V consented
When will self-defence be a successful defence?
If
1. D honestly believed full force was necessary and
2. The force used was objectively reasonable in the circumstances as D believed them to be
What is the difference between a strict liability and absolute liability offence?
- Strict = do not require proof of MR (e.g. do not need to prove D was reckless in breaking speed llimit)
- Absolute = no MR required at all, so long as no valid defence (state of affairs crimes; set of circumstances exist)
What are the 3 classification of offenses?
- Basic intent
- Specific intent
- Ulterior intent
What are crimes of basic intent?
Crimes which can be committed either intentionally or recklessly
eg: Simple criminal damage
Can voluntary intoxication be used as a defence for all classifications of offence?
No – not for basic intent crimes
What are offences of specific intent?
Can only be committed intentionally:
eg: Murder (intention to kill/cause GBH), or theft (intention to permanently deprive)
What are offences of ulterior intent?
Where MR required goes beyond AR, so prosecution have an ‘extra’ element of MR to prove
- Burglary (ulterior intent to steal, inflict GBH or cause damage inside building)
- Aggravated criminal damage (intention/recklessness as to endangering life by damage/destruction)
More detailed examples of offences of ulterior intent
