Criminal Law - AR, MR, Causation Flashcards
What is the common law test for dishonesty?
(1) ascertain (subjectively) the actual state of D’s knowledge or belief as to the facts; and
(2) determine whether their conduct was honest or dishonest by the (objective) standards of ordinary, decent people.
Note that, when deciding if the accused is dishonest, the court should:
(1) first determine if the dishonesty is clear, for example, a shoplifting scenario. If so, that is the end of the matter and the defendant will be guilty of theft.
(2) If not, the court will then refer to the partial definitions contained in s 2 of the TA 1968 for guidance;
(3) only if these do not assist should the jury or magistrates turn to the common law test from the Ivey case.
What is the test for recklessness?
Is it a subjective or objective test?
The test for recklessness has two elements - both are subjective:
(1) D foresees a risk of harm and takes it anyway;
(2) In the circumstances known to D, it was unreasonable to take the risk.
An awareness of any level of risk, however small, is sufficient.
What is the test for negligence?
D falls below the objective standard expected of a reasonable person. Individual considerations such as the defendant’s motive for acting as they did, or lack of experience, are not taken into account. Therefore, D may be negligent even if D is not aware of the unjustifiable risk.
Explain factual and legal causation in detail.
What if there are multiple causes of a criminal consequence, e.g. a killing? How, if at all, will D satisfy the test for “legal causation”?
Factual causation: “But For” test.
Legal causation: D must be the “operating and substantial cause”.
– D’s acts must be more than a “de minimis / minimal” cause (R v Hughes).
– D can be one of many causes of the consequence (e.g. death) and still be guilty (R v Benge).
Example: D stabs V but V is later dropped by the ambulance. D remains the legal cause unless the drop is an intervening (“novus actus”) event.
What are intervening events? Please list all of the possible intervening events.
- Medical Negligence
- Acts of Third Parties
- Acts of the Victim
- Thin Skull Rule
- Natural Events
How is medical negligence treated in causation?
It rarely breaks the chain of causation.
Must be “so potent” and “so independent” of D’s actions that they make D’s acts “insignificant” (R v Cheshire).
When do the actions of third parties break the chain of causation?
TP’s acts must be “free, informed and deliberate”
(R v Paggett) - D used V as a meat-shield and the police continued attacking. The police’s acts were NOT free, deliberate and informed because they were acting to protect themselves.
When do the actions of victims break the chain of causation?
Could V’s actions [means of escape] be reasonably foreseen by the reasonable man?
(R v Roberts) - yes, in this case V jumped out of a car to avoid ABH/sexual assault.
When will refusing medical treatment break the chain of causation?
What about the Thin Skull Rule?
Thin Skull Rule cannot break the chain of causation based on V’s special characteristic (R v Blaue). D’s take their victims as they find them, in mind and body.
Test: Were D’s actions a “operating and significant cause of the [death]”?
In R v Dear, D was found guilty but argued V died by suicide. Even after V re-opened their wounds after medical treatment, D causing the initial wounds made it possible for the jury to find him guilty.
Can suicide be a novus actus that breaks the chain of causation? (i.e. D will not be liable)
It is a question of fact for juries (R v Wallace) but some examples could include:
- V’s injuries from D have healed but V goes on to commit suicide.
- It was a free, informed and voluntary action that V took (e.g. drug overdose - R v Kennedy)
Suicide would not break the chain of causation (i.e. D would remain guilty of his offence) where:
- V would have died anyway from the injuries inflicted by D (“but for” cause),
- V’s suicide was reasonably foreseeable, e.g. a talented sportsman is paralyzed by D’s offence,
- D is still the “operating and substantial cause” of V’s death.
Explain what is meant by “transferred malice” rule and how it applies?
You can transfer D’s mens rea from Victim 1 (ABH) to Victim 2 (GBH) if the offences are of a similar type, e.g. would not work for criminal damage.
The harm can be greater in the transferred crime, so long as the type of crime is the same (R v Mitchell)
(In this case, a man pushed an old man who fell, hitting an old lady who broke her leg. She subsequently died. Manslaughter conviction was upheld).
Explain what is meant by a “continuing act”?
Usually, D’s actus reus and mens rea occur at the same time. However, courts employ a flexible rule whereby D’s actions in a chain of events can constitute the actus reus, even if D’s mens rea was formed before or after.
For example: D assaults V and, believing V to be dead, throw him off a cliff. V later dies by exposure to the cold conditions. D’s actions are treated as one continuing act and D is guilty of murder (R v Thabo Meli).
To rely on the partial defence to murder of diminished responsibility, who bears the legal burden of proof and the evidential burden?
D
To rely on the partial defence to murder of loss of control, who bears the legal burden of proof and the evidential burden?
D bears the evidential burden but the prosecution bears the legal burden to disprove
To rely on self-defence, who bears the legal burden of proof and the evidential burden?
D bears the evidential burden but the prosecution bears the legal burden to disprove
