Criminal Law- Booklet 1- General Elements of Liability

Question 1

Actus reus

Answer 1

‘Guilty Act’
Consists of four things:
- State of affairs (‘being’ rather than ‘doing – R v Larsonneur = french national brought to UK, found of ‘being illegally in UK’, Winzar v CC Kent = D drunk in hosptal, police removed him and found him guilty of ‘being drunk on the highway’)
- Conduct (requires a particular conduct, consequences are irrelevant)
- Result (particular result needed)
- Omissions (failure to act- not generally an offence unless under a duty to act)

Types of omissions where the person is under a duty to act:
- Statute – when a statute says to do something it is an offence not to do it – e.g. Road Traffic Act (1988)
- Contract – R v Pitwood
- Duty arising under special relationship (e.g. parent-child) – R v Gibbins and Proctor (daughter-starvation)
- Assuming responsibility for another person (e.g. someone disabled) – R v Stone and Dobinson (anorexia, died)
- When someone has inherently created a dangerous situation, becomes aware of it and fails to act to remedy it – Miller (cigarette, mattress)

Difference between a positive act + omission
Airedale NHS v Bland = removal of a feeding tube from patient to allow him to die naturally was an omission. Euthanasia would be a positive act (actually doing something to cause their death)

Question 2

Mens rea

Answer 2

Guilty mind
Mental element
‘Fault’ element of the crime
Mens rea is either defined in statute law or case law
(Not needed in strict liability)

Three types of mens rea:
1) Intention
2) Recklessness
3) Negligence

1) Intention
Always subjective– particular D
Vickers – mens rea of murder can be implied from an intention to cause GBH
Two types of intention:
(I) Direct intention– where the defendant has a clear foresight of the consequences of an action and desires those consequences
(II) Oblique intention– defendant may not have desired the consequences, but could foresee them to a virtual certainty and carried out the act regardless
Laid out in case of Nedrick, confirmed by Woolin

2) Recklessness – when the D is aware of a risk, but takes that risk anyway
Recklessness is subjective - __R v G and other__
First use of ‘subjective recklessness was in Cunningham, “was the risk in the D’s mind at the time the crime was committed?” (meter- mother-in-law- he didn’t intent to cause harm + he hadn’t realised the risk)
But have gone back and forth- Caldwell- objective recklessness as reasonable person would have realised risk setting fire to a hotel would cause (even tho he was drunk)
Subjective recklessness = D took an unjustifiable risk

3) Negligence – Falling below the standard of a reasonable person
Objective

Question 3

Coincidence of actus reus and mens rea

Answer 3

Coincidence states that the actus reus and the mens rea needs to exist at the same time.
There are two exceptions:

1) Continuing Acts - where even if the mens rea wasn’t present when the act was initially carried out, the defendant can still be guilty if the mens rea appears at any moment – Fagan v Metropolitan Police Commissioner (D drove over a policeman’s foot unintentionally, but failed to move the car when the officer asked him)

2) Single transaction of events - if there is one unbrokable transaction of events, the actus reus and mens rea need not occur at the same time. Thabo Meli (tried to kill V, didn’t, died of cold exposure when they chucked his ‘dead’ body off a cliff)

Question 4

Transfer of Malice

Answer 4

This states the mens rea can be transferred from an intended victim to an unintended one.
Latimer (hit v no.1 with belt- recoiled on v no.2)

Question 5

Causation

Answer 5

Factual Causation
(I) ‘But for’ test – ‘but for’ the D’s actions would the victim have been harmed when and in the way that they did? - R v White (poison-mum-heart attack-no time to take affect)
(II) De minimis rule – the orignal injury caused by the D must be more than a minimal cause of death
Pagett (D- preg. girlfriend-human shield- ‘but for’ his actions + his actions contributed significantly to her death)

Legal Causation
(I) Operating and Substantial cause of death – D’s harm must be the leading/main cause of the V’s harm – R v Smith (soldier-stabbed-dropped-poor med. treatment- not enough to break chain of caus- orig. stab wound ‘operating and substantial cause of death’
R v Jordan (allergic-antibiotic-original stab wounds nearly healed– medical negligence can only break chain of causation where it’s “palpably wrong”
Cheshire – neg. treatment won’t break c of c unless it was so independent it rendered the D’s actions insignificant

For the victim’s actions to break the c of c, their actions must be unreasonably forseeable
R v Roberts (car- sexual advances)
Williams v Davies (wallet-car- unreasonable)

(II) ‘Thin Skull Rule’ – D must take their V as they find them, any harm made worse by a pre-existing condition is the fault of the D –
R v Blaue (Jehova’s witness)
(III) Novus actus interviens – is there an intervening act that breaks the chain of causation?
Jordan, R v Roberts