Core principles

Question 1

Purposes of sentencing under Sentencing Act 2020, s 57(2)

Answer 1

(a) Punishment of offenders
(b) Reduction of crime (incl. by deterrence)
(c) Reform and rehabilitation of offenders
(d) Protection of the public
(e) Reparation by offenders to persons affected by their offences

Question 2

Burden of proof in criminal cases

Answer 2

It is for the prosecution to prove every aspect of the crime beyond reasonable doubt (Woolmington v DPP)

Question 3

Usual direction to the jury regarding standard of proof

Answer 3

‘If after considering all the evidence, you are sure the defendant is guilty, you must return a verdict of guilty. If you are not sure, your verdict must be ‘not guilty’’

Question 4

What is the standard of proof in rare situations where the defendant has burden of proof? e.g. diminished responsibility defence

Answer 4

On the balance of probabilities (e.g. more likely than not that the defendant killed under diminished responsibility)

Question 5

Types of offences

Answer 5

(1) Summary only offences
(2) Either way offences
(3) Indictable only offences

Question 6

Summary only offences

Answer 6

Least serious crimes - can only be tried in Magistrates and punishment is subject to the maximum magistrates can impose (£5000 fine and/or 6 months imprisonment, or up to 12 months for sentences running consecutively on 2 or more offences triable either way)

Question 7

Either way offences

Answer 7

Can be tried either in the Magistrates of Crown Court. Also known as ‘indictable offences’.

Question 8

Indictable only offences

Answer 8

Most serious crimes - can only be tried by a judge and jury in the Crown Court. Maximum penalty is that imposed by the statute creating or regulating the offence.

Question 9

Who makes the initial decision on who should try the case?

Answer 9

• Initially made by the Magistrates, in whose court all criminal cases start.
• If they decide their sentencing powers are sufficient, they will offer summary trial. The defendant then has the right to choose trial by jury.
• If the facts indicate the penalty will be in excess of their powers, they decline jurisdiction and the defendant loses the right to choose, they have to go to the Crown Court

Question 10

Does the classification of offences apply to youths?

Answer 10

No; the classifications are only relevant to adults. With youths, the potential sentence determines where their trial is held.

Question 11

What are the key elements of criminal liability?

Answer 11

(1) Actus reus
(2) Mens rea
(3) Absence of a valid defence

Question 12

What is the actus reus?

Answer 12

The actions of the defendant that are prohibited by law. This is an essential element of the offence.

Question 13

Four types of actus reus

Answer 13

(1) Conduct
(2) Result
(3) Circumstances
(4) Omissions

Question 14

What are conduct offences?

Answer 14

Offences that only require certain acts to have been committed by the defendant to satisfy the actus reus e.g. the conduct required for blackmail in s 21 Theft Act 1968 is that the defendant makes a demand with menaces.

Question 15

What are result offences?

Answer 15

The actus reus of result crimes requires more than just the defendant’s action; the action must lead to a specified consequence, e.g. murder, where the actions of the defendant must cause the death of the victim. Causation is part of the actus reus.

Question 16

What are circumstances?

Answer 16

The actus reus can also include particular surrounding circumstances e.g. Theft Act 1968 s 1(1); property appropriated must be ‘belonging to another.’

Question 17

What are omissions?

Answer 17

Where a defendant can commit the actus reus of an offence despite taking no action at all e.g. some gross negligence manslaughter

Question 18

What are the two elements of causation?

Answer 18

(1) Factual causation

(2) Legal causation

Question 19

What is the test for factual causation?

Answer 19

It must be proved that ‘but for’ the acts or omissions of the accused, the relevant consequence would not have occurred in the way that it did (R v White)

Question 20

R v White summary

Answer 20

W put poison in a drink, intending to kill his mother. Medical evidence showed she had died from heart failure, not the poison. W was acquitted of murder, as there was no causal link between his act and the consequence.

Question 21

R v Dyson summary

Answer 21

The victim, a child, had meningitis. Dyson threw her down the stairs and she died. It was argued that she was going to die in any event, and so there was not factual causation. It was held that any action which accelerates death is a cause.

Question 22

What is the test for legal causation?

Answer 22

The defendant’s act must be the ‘operating and substantial’ cause of the prohibited consequence (R v Pagett)

Question 23

Legal causation - definition of ‘substantial’ cause

Answer 23

Must be a significant cause, i.e. not de minimus/minimal. Doesn’t have to be the only or the principal cause (R v Hughes)

Question 24

Legal causation - ‘substantial cause’ further cases

Answer 24

R v Dalloway - Defendant was driving a horse and cart without holding the reins. A child ran in front of the cart and was killed. Evidence appeared to show that even if he had been holding the reins, he could not have stopped the cart in time. Held it was necessary to show the death was due to the culpable element in his act – the negligence of not holding the reins, and it wasn’t shown. Acquitted of manslaughter.

R v Benge - Foreman ordered track to be taken up. Signalman did not go correct distance to warn the trains, train crashed and many killed. If the defendant’s negligence mainly caused the accident, it it irrelevant that it might have been avoided if other persons had not been negligent. A defendant can still be liable when other causes are present.

Question 25

Legal causation - definition of ‘operating’ cause

Answer 25

Absence of an intervening act (novus actus interveniens) which breaks the chain of causation

Question 26

Contexts in which courts have considered the chain of causation to be broken

Answer 26

• Medical negligence
• Acts of a third party
• Acts of the victim
• Thin skull rule
• Natural events

Question 27

Novus actus: medical negligence - cases

Answer 27

R v Smith - Smith stabbed the victim and pierced his lung. Another soldier carried him but dropped him twice. At the medical station, he received harmful treatment and died. Smith was still convicted of murder; ‘only if the second cause is so overwhelming as to make the original wound merely part of the history can it be said that death does not follow from the wound.’

R v Cheshire - Cheshire shot the victim twice. Poor medical care following surgery meant that his windpipe became blocked and he died. At the time of death, his original wounds had healed. Held that poor medical treatment did not break the chain of causation; the jury should not regard it as excluding the responsibility of the defendant ‘unless the negligent treatment was so independent of his acts, and in itself so potent in causing death, that they regard the contribution made by his acts as insignificant.’

Question 28

Novus actus - overall approach of courts to medical negligence

Answer 28

Courts are reluctant to allow medical malpractice to break the chain of causation.

Question 29

Novus actus: acts of a third party - case

Answer 29

R v Pagett - Pagett shot at the police and used his pregnant gf as a shield. The police returned fire and killed her. Trial judge directed the jurors that they had to be sure he had fired first, causing the officers to fire back and kill her. They had to be satisfied that in doing so, the police acted reasonably. CoA held that there may only be a break in the chain of causation if the actions of the third party were ‘free, deliberate and informed.’

Question 30

Novus actus: acts of the victim - 3 types of act to consider

Answer 30

(1) ‘Fright and flight’ cases
(2) Refusing medical treatment
(3) Suicide

Question 31

Novus actus: acts of the victim - Fright and flight

Answer 31

Question is whether the escape was foreseeable by the reasonable person. If it is not, then the defendant is entitled to an acquittal.

R v Roberts - Victim was a passenger in Roberts’ car and jumped out of the moving car out of fear of unwanted sexual advances. CoA said the victim’s reaction would only break the causation if it were an act that was ‘so daft’ that no reasonable person could have foreseen it. This was not; convicted of assault occasioning ABH.

R v Williams & Davis - Appellants gave a lift to a hitchhiker then tried to rob him at knife point; the victim jumped from the moving car and died. Convicted of manslaughter. ‘The jury should consider two questions: (1) whether it was reasonably foreseeable that some harm was likely to result from the threat itself: and (2), whether the deceased’s reaction…was within the range of responses which might be expected from a victim placed in the situation’ (proportionate)

Question 32

What should be taken into account when determining whether a ‘fright and flight’ response is a novus actus?

Answer 32

• The jury would have the same knowledge as D had at the time D committed the act (R v Roberts)
• ‘The jury should bear in mind any particular characteristic of the victim and the fact that in the agony of the moment he may act without thought and deliberation’ (R v Williams & Davis) - characteristics which would be visible to a reasonable man at the time of the defendant’s act

Question 33

Novus actus: acts of the victim - Refusing medical treatment

Answer 33

R v Blaue - Blaue stabbed a woman and pierced her lung. The victim refused a blood transfusion due to religious beliefs, and died. Held that defendants must take their victims as they find them, and that meant the whole person, both mind and body.

R v Holland - Deceased was attacked by Holland and suffered a severely cut finger. Surgeon advised it to be amputated otherwise would become infected. The deceased ignored the advice and died of tetanus. Held that it did not matter whether the wound was instantly mortal or whether it became the cause of death because of the refusal of treatment.

R v Dear - Subsequent to receiving medical treatment, the victim’s wounds opened up and they died. D claimed chain of causation broken because V had committed suicide, either by reopening his wounds or when they reopened naturally, failing to take steps to stop blood flow. CoA rejected appeal: defendant’s conduct was still an operative and significant contribution to the death

Question 34

Novus actus: acts of the victim - Suicide cases

Answer 34

R v Wallace - D threw sulphuric acid over D, leaving him completely paralysed and in a permanent state of unbearable pain. The immediate cause of death was voluntary euthanasia by lethal injection. CoA held that it was open to the jury to find that the acts of the victim and doctors who administered were not voluntary acts. The questions for legal causation were (a) are you sure D’s unlawful act was a significant and operating cause of death?, (b) if yes, are you sure that at the time of the acid attack it was reasonably foreseeable that the victim would commit suicide as a result of the injuries?

Question 35

Situations where a victim’s suicide may NOT break the chain of causation

Answer 35

(1) Victim nonetheless dies from original wound (R v Dear)
(2) The act (of suicide) was reasonably foreseeable (R v Roberts, R v Williams & Davies) e.g. where the defendant causes a brilliant pianist to lose her fingers, a keen sportsman to be paralysed
(3) D’s unlawful act was a significant and operating cause of death and at the time of the attack it was reasonably foreseeable that the victim would commit suicide (R v Wallace)

Question 36

Situations where the victim’s suicide MAY break the chain of causation

Answer 36

(1) The injuries inflicted by the defendant have healed, but the victim goes on to commit suicide (distinguishing R v Dear)
(2) It was a voluntary and informed decision of the victim to act (R v Kennedy - HoL decided that a person who supplies a drug to another has not caused the drug to be administered when the other injects it)

Question 37

Novus actus - the thin skull rule

Answer 37

A person who inflicts harm on another cannot escape liability if the victim, owing to some pre-existing infirmity or peculiarity, suffers greater harm than would have been expected (R v Hayward - Hayward threatened his wife and chased her down the road. She died because she had an abnormal thyroid condition, meaning any combination of physical exertion and fear might lead to death. Hayward had to take her condition as he found it.)

Question 38

Novus actus - Natural events

Answer 38

Will only break the chain of causation if they are ‘extraordinary’ and not reasonably foreseeable.

Question 39

Omissions - general rule

Answer 39

A defendant cannot be criminally liable for a failure to act. ‘Omission, without a duty, will not create an indictable offence.’ (R v Smith (William))

Question 40

Omissions - what the prosecution needs to prove

Answer 40

(i) Crime is capable of being committed by omission. Some offences can only be committed by an act e.g. unlawful act manslaughter (R v Lowe)
(ii) Accused was under a legal duty to act
(iii) Accused breached that duty
(iv) Breach caused the actus reus to occur
(v) The accused has the required mens rea

Question 41

Common situations where a defendant will be under a legal duty to act

Answer 41

(a) Statute
(b) Special relationship
(c) Voluntary assumption of responsibility
(d) Contract
(e) The defendant creating a dangerous situation
(f) Public office

Question 42

Omissions - statutory duty

Answer 42

Many examples in less serious/summary only offences, e.g. Road Traffic Act 1988 s 6(4): an offence to fail to provide a specimen of breath

Question 43

Omissions - special relationship

Answer 43

Common ones: doctors and patients, parents and children, spouses

R v Hood - D held liable for the manslaughter of his wife; failed to summon medical assistance to help her when she fell. Basis of liability stemmed from marriage.

R v Gibbons and Proctor - Gibbons’ girlfriend, Proctor, deliberately starved their child to death, and Gibbons did nothing. Convicted of his daughter’s murder based on breach of duty as a father not to neglect her.

Re A (Children (Conjoined Twins)) - Both children were certain to die in the absence of surgical separation. The operation would save one twin, but the parents refused to give consent. The judge said the parents had a legal duty to the twin who could be saved, otherwise they might be guilty of killing her.

Question 44

Omissions - voluntary assumption of a duty of care

Answer 44

R v Nicholls - ‘If a person chooses to undertake the care of a person who is helpless either from infancy, mental illness or other infirmity, he is bound to execute that responsibility and if he by gross negligence allows him to die he is guilty of manslaughter.’

R v Gibbons and Proctor - Proctor was also convicted of murder on the basis that she was Gibbons’ de facto wife

R v Instan - Instan lived with her elderly aunt, who gave her money to provide both of them with food. Instan used the money to buy food for herself but not her aunt, and she did not summon medical assistance for her aunt’s gangrene. Instan was convicted of manslaughter when she died due to voluntary assumption of care.

R v Stone and Dobinson - Stone lived with his mistress Dobinson. They were both of low intelligence and accepted into their home Stone’s elderly, weak sister. They tried to eat but gave up and failed to get medical assistance; she died. Held guity of manslaughter as they had voluntarily assumed responsibility.

R v Ruffell - Victim was taking drugs with R, became unconscious. R left V sitting on R’s doorstep, and V died. CoA upheld conviction on basis of voluntary assumption.

Question 45

Omissions - contractual duty

Answer 45

R v Pittwood - Level crossing gatekeeper who failed to close the gate when a train was coming and a man was killed by the train. Failure to close the gate could amount to the actus reus of manslaughter because he was under a contractual duty to do so when a train was approaching.

Question 46

Omissions - defendant creates a dangerous situation

Answer 46

If a person creates a dangerous situation, they have a duty to take reasonable steps to counteract it (the steps need only be reasonable).

R v Miller - Miller, a squatter, fell asleep whilst holding a cigarette in bed. He realised that his cigarette started a fire, but just moved rooms and went back to sleep. He was convicted of arson. ‘I see no rational ground for excluding from conduct giving rise to criminal liability, conduct which consists of failing to take measures that lie within one’s power to counteract a danger that one has oneself created.’

R v Evans - Gemma Evans purchased heroin and supplied her 16 year old sister, Carly. Evans and their mother Townsend were heroin addicts and aware of signs of overdose but did not seek medical help for Carly, who died. The mother was convicted on the basis of the familial relationship (older siblings do not count in this), and Evans on the basis of the creation of the dangerous situation (this overlooks the fact Carly injected herself).

Question 47

Omissions - Public office holders

Answer 47

R v Dytham - D was a police constable, on duty and in uniform, and saw a man being evicted from a club and kicked so badly he died. D did not attempt to stop the disturbance. He was guilty as he wilfully neglected to perform his duty.

Question 48

Omissions and causation

Answer 48

• If the defendant had acted, the defendant could have made a causal difference.
• The defendant cannot cause by omission.
• The defendant can fail to uncause when the defendant has a duty to uncause.

Question 49

Mens rea

Answer 49

‘Guilty mind’ - most offences require that the defendant not only commits the act, but also in some way has a guilty mind. The required mental element for the crime.

Question 50

Mens rea - intention

Answer 50

Some offences require that the defendant must have intended a specified result e.g. murder, the defendant must intend to kill the victim or cause the victim serious harm (R v Vickers)

Question 51

Two types of intention

Answer 51

(1) Direct intention

(2) Indirect/oblique intention

Question 52

Direct intention

Answer 52

The aim or purpose of the defendant’s act (R v Moloney)

Question 53

Indirect/oblique intention

Answer 53

Where the consequence is not the defendant’s purpose but rather a side effect that the defendant accepts as inevitable or certain. ‘a virtual certainty…and that the defendant appreciated that such as the case.’ (R v Woollin)

Question 54

Mens rea - knowledge and belief

Answer 54

e.g. s 22 Theft Act 1968: a person is guilty of handling stolen goods if, ‘knowing or believing them to be stolen’, the person receives the goods.

Has been held to allow for the defendant who is absolutely certain, or is at least possibly aware, that the particular circumstance exists.

Question 55

Mens rea - dishonesty

Answer 55

see Ivey v Genting Casinos if the defendant is required to have been dishonest

Question 56

Mens rea - negligence

Answer 56

When the defendant’s actions fall below the standard of a reasonable person.

• Statutory offences in which negligence is the basis of liability e.g. careless driving
• Negligence as an element of mens rea e.g. gross negligence manslaughter

R v Bateman - ‘in order to establish criminal liability the facts must be such that, in the opinion of the jury, the negligence of the accused…showed such disregard for the life and safety of others as to amount to a crime against the state’

Question 57

When can you use oblique intent?

Answer 57

• Only when the facts require it and when intention is the only form of mens rea e.g. murder, causing GBH with intent
• If the rules of the offence allow mens rea in the form of intention or recklessness, do not use oblique intent.

Question 58

Relationship between motive and intention

Answer 58

R v Moloney - explained by Lord Bridge, example of D putting a bomb in an aeroplane they have insured, with the bomb timed to go off mid-flight. It is D’s aim/direct intention to claim for the aircraft on his insurance. That is also his motive. The destruction of the aeroplane is the means of achieving this aim, so is also his direct intention, but is not his motive. The death of the pilot of the plane is an inevitable side effect, so neither his motive nor direct intention, but his oblique intention.

R v Hill - motive can be used as evidence of intention. ‘It is necessary to have regard not merely to his intent with regard the effect [that will be had]…but to his whole object in acting as he has done.’ (in the context of poisoning offences)

Question 59

Mens rea - recklessness

Answer 59

A person acts recklessly with respect to:
(a) (i) a circumstance when he is aware of a risk, that it exists or will exist; (ii) a result when he is aware of a risk that it will occur
(b) and it is, in the circumstances known to him, unreasonable to take that risk.
(Lord Bingham, R v G)

Question 60

Things to consider when considering recklessness

Answer 60

• First part of the test is subjective, second part is objective.
• In considering whether the risk was reasonable to take, the jury will consider the social utility of what the defendant is doing. If there is no social utility, the jury will probably decide that even a very small risk is unjustified.
• The jury should not take into consideration circumstances not known to the accused at the time (R v G)

Question 61

Coincidence of actus reus and mens rea

Answer 61

The defendant must have the relevant mens rea for the offence at the precise moment when the defendant commits the actus reus.

Question 62

Theories developed for flexibility around the coincidence of actus reus and mens rea rule

Answer 62

(a) The continuing act theory

(b) The one transaction principle

Question 63

Continuing act theory

Answer 63

A defendant can be guilty of an offence using the continuing act theory if they form the mens rea for the offence at some point during the actus reus continuing.

Fagan v MPC: Fagan accidentally drove onto a policeman’s foot. The policeman asked him to move, but Fagan refused. He was charged with assault. At the time of driving onto the foot, however, he did not have the mens rea. Held that the actus reus was a continuing act, and it was enough that he had the mens rea at some point during its continuance.

Question 64

One transaction principle

Answer 64

The courts categorise the actions of the accused a series of acts, making up one transaction. In certain circumstances, it is enough for the defendant to have the mens rea at some point during the transaction.

Thabo Meli: The appellants hit V over the head with intent to kill him. Thinking they had done, they rolled V off a cliff to make his death appear accidental. It was later discovered he died from exposure at the bottom of the cliff. Held that the appellant’s acts were performed in pursuance of an antecedent plan to kill, the series of acts could not be divided up. It was enough that the mens rea existed at some point during the series of acts.

R v Le Brun - D assaulted his wife, knocking her unconscious, and then dragged her home. In doing so, he dropped her and fractured her skull, which is what she died from. The court held that the actions were all part of the ‘same transaction.’

Question 65

What if it isn’t clear which of D’s acts was the actus reus?

Answer 65

The defendant must have the mens rea for the relevant crime when the defendant does each of the acts which could constitute the actus reus.

AG’s Ref (No 4 of 1980) - unclear whether V died from D’s either strangulation or stabbing. Court said it was unnecessary to prove which act caused the death, as D had mens rea during both.

Question 66

Transferred malice

Answer 66

When the defendant’s mens rea is transferred from the intended harm to the actual harm, e.g. it does not make a difference that D intends to kill X, but misses and kills Y instead. The doctrine of transferred malice allows the mens rea to be transferred.

R v Latimer - L aimed a blow at C with a belt, but it recoiled and hit V in the face, wounding her severely. Intention to injure C could be transferred to V.

R v Mitchell - Transferred malice applied to manslaughter. The defendant assaulted A, causing him to fall onto B, causing her death.

Question 67

Limits of transferred malice

Answer 67

R v Pembleton - The accused threw a stone at a crowd of people, it missed and broke a glass window. He intended to hit the people but not the window. The court quashed the conviction for criminal damage; transferred malice will not assist where the defendant has the mens rea for one crime (in this case: GBH) and the actus reus for another (criminal damage).

Question 68

Mistakes

Answer 68

• Ignorance of the law

- Mistakes that negate the mens rea

Question 69

Mistake: Ignorance of the law

Answer 69

The fact that the defendant does not know they are breaking the law will not help avoid liability, even if the defendant’s ignorance is reasonable, or even if it were impossible for the defendant to know.

R v Bailey - The defendant was convicted of an offence created by a statute whilst he was on the high seas. He committed it before the end of his voyage when he could not possibly have known of the statute.

Question 70

Mistakes that negate the mens rea

Answer 70

• Mistake of fact e.g. if the defendant takes the wrong umbrella from a restaurant, believing it to be their own, there will be no liability for theft.
• If the mens rea required for the relevant element of the actus reus is intention or recklessness, there is no need for the mistake to be reasonable. If the mens rea requirement is negligence, it must be a reasonable mistake.

R v Smith - Believing them to be his own, a tenant, Smith, damaged the panels on the wall of a flat removing his stereo system. The conviction was quashed because he did not recklessly or intentionally damage property belonging to another.