ECRL MOD 1-4 Flashcards
Definition of Crime
- A crime is an act (something done) or
omission (something not done) that is
against the law and punishable upon
conviction. - Something is a crime if declared as such by statute or by common law.
- It is harmful not only to some individual but also to a community, society or the state.
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Objectives of Criminal Law
- Retribution – criminals ought to suffer in
some way.
- Deterrence – individual deterrence is
aimed toward the specific offender.
- Incapacitation – to keep criminals away
from society in order to protect the public.
- Rehabilitation – aims at transforming an
offender into a valuable member of society.
- Restoration – to repair any injury inflicted
upon the victim by the offender.
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American Model Penal Code
- To forbid and prevent conduct that
unjustifiably and inexcusably inflicts or
threatens substantial harm to individual or
public interests.
- To subject to public control persons whose
conduct indicates that they are disposed to
commit crimes.
- To safeguard conduct that is without fault
from condemnation as criminal.
- To give fair warning of the nature of the
conduct declared to be an offence.
- To differentiate on reasonable grounds
between serious and minor offences.
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Elements of Crime
- Actus Reus – guilty act (conduct)
- Mens Rea – guilty mind (intent)
- Concurrence – actus reus and mens rea
MUST occur at the same time
- Causation – the guilty act MUST result in
actual harm
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Types of Offences
Crimes against the person, e.g. assault,
battery, false imprisonment, harassment,
intimidation, manslaughter, murder.
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Types of Offences
Sexual offences, e.g. incest, obscenity,
rape, sexual assault.
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Types of Offences
Crimes against property, e.g. arson,
burglary, criminal damage, fraud, robbery,
theft.
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Types of Offences
Crimes against justice, e.g. perjury,
perverting the course of justice.
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Types of Offences
Crimes against the public, e.g. terrorism,
riot, obstruction of highways.
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Types of Offences
Crimes against animals, e.g. animal fight,
cruelty to animals.
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Types of Offences
Crimes against the state, e.g. treason,
espionage.
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Types of Offences
Participatory offences, e.g. accomplice,
joint enterprise, inchoate offence.
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Summary Trial
- It takes place in a magistrates’ court.
- It is a quicker and less expensive alternative to a full trial.
It works best when the defendant agrees on
the facts but disagrees on what the result
should be based on those facts.
Evidence is provided to the judge in the
form of affidavit which is a written
statement sworn to be true from an
individual.
The judge will review the affidavits and
will make a final order based on the
information.
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Trial on Indictment
- It takes place in the Crown Court.
- The defendant is tried before a judge and a
jury.
- An indictment is the formal document
outlining a specified indictable offence.
- It is more time-consuming and expensive,
so it is reserved for more serious crimes.
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Triable Either Way
- It is a trial of summary or indictable
offences.
- A criminal offence that can be heard in a
magistrates’ court or the Crown Court.
- If the magistrates decide their sentencing
powers are sufficient to deal with the
offence, the defendant may elect to have it
dealt with summarily in the magistrates’
court or on indictment (trial by jury) in the
Crown Court.
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Charge
- It is a formal allegation made by the
prosecution against a person accused of
having committed a specific criminal
offence.
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Undercharging – it refers to a situation
where the prosecutor charges a suspect with
a criminal offence that is less severe or
carries a lower penalty than the crime he
has allegedly committed. It happens mostly
because the prosecutor does not have
sufficient evidence to support a more serious charge. Undercharge is easier to prove and may encourage a guilty plea. The prosecution of summary trial is less costly and more efficient because it may enable the case to be heard summarily rather than on indictment. However, it may lead to a situation where a suspect faces inadequate legal consequences for his actions, potentially resulting in an unjust outcome and undermining public confidence in the criminal justice system.
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- Overcharging – it refers to a situation
where the prosecutor charges a suspect with a criminal offence that is more serious or carries a higher penalty than the crime he has allegedly committed. It happens mostly because the prosecutor misinterprets the evidence or wants to exert pressure on the suspect. Facing the prospect of severe charges, the suspect may be more inclined to negotiate a plea bargain for lesser charges, even if he believes he is innocent. Overcharging can be problematic because it can lead to inflated penalties, wrongful convictions, undermining public confidence in the criminal justice system. Defendants may be unfairly punished for crimes they did not commit or for actions that do not merit such severe consequences.
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Roles of Judge
- He is the trier of law, interpreting and
applying the law.
- He preside over the trial and maintains
order in the courtroom.
- He provides instructions to the jury
regarding the applicable law and legal
standards.
- He decides what evidence can be admitted
and presented to the jury.
- If the defendant is found guilty, he is
responsible for imposing a sentence.
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Roles of Jury
- The jury is a group of jurors who take up
the role of fact finders (i.e. triers of fact).
- They listen to the evidence presented in
court by the prosecution and the defence.
- They determine whether the defendant is
guilty or innocent based on the evidence.
- After the trial, they retire to deliberate in
private to reach a verdict.
- Deliberation involves discussions, analysis of the evidence, and consideration of legal instructions provided by the judge.
- They are expected to remain impartial,
unbiased, and free from any preconceived
notions or biases that could affect their
judgment.
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Jury Direction
- The judge will guide the jury on what
evidence is admissible.
- The judge will sum up and review the facts
for the jury.
- The judge will tell the jury that the standard
of proof is beyond reasonable doubt and the
burden of proof is at all times on the
prosecution unless it is reversed.
- The judge will then explain to the jury what
the law is and the facts they have to find to
sustain a conviction.
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Appeal
- If the judge makes a mistake in directing
the jury or applies the wrong law or
principle, this can be appealed on the
ground of misdirection.
- Appeals from the Crown Court are heard
by the Court of Appeal (criminal division).
- Appeals from the Court of Appeal are heard
by the Supreme Court.
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Sources of Criminal Law
- Criminal law derives from traditional
common law of crimes, so it was once
judge-made law, known as common law
offences.
- However, the majority of criminal offences
have now been codified in statute as
statutory offences.
- Those that were not codified in statute have
largely been abolished but some of them
are still effective.
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Codification of Criminal Offences
- Common law offences were seen as
unacceptably vague and open to
development by the courts in ways that
might create certainty.
- The Law Commission is an independent
body set up by Parliament to keep the law
under review and to recommend reforms.
- Its codification of criminal law aims to
abolish all the remaining common law
offences and replacing them with offences precisely defined by statute.
- However, neither the Law Commission nor
the UK Parliament have completed the
necessary revisions of the law, so some
common law offences still exist.
- In England and Wales, unless a specific
maximum sentence has been codified,
common law offences are punishable by
unlimited fines and unlimited
imprisonment
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Principles of Criminal Law
Principle of minimal criminalisation –
Conduct should be criminalised only when
absolutely necessary. Only offences that are
seriously enough should be criminalised,
rather than trivial ones.
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Principles of Criminal Law
Principle of proportionality – punishment
for a given crime should be proportional to
and reflect the seriousness of the crime.
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Principles of Criminal Law
Principle of fair labelling – the description
of the offence should match the wrongdoing and reflect distinctions in the nature and seriousness of the crime.
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Principles of Criminal Law
Principle of certainty – the law must be
clear, precise and unambiguous so that its
legal implications can be foreseeable.
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Principles of Criminal Law
Presumption of innocence – every
defendant is presumed innocent until
proven guilty by the prosecution beyond a
reasonable doubt.
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Principles of Criminal Law
Double jeopardy – a person should not be
tried twice for the same offence after being
acquitted or convicted.
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- Criminal Liability
CRIMINAL LIABILITY
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Elements of Crime
Mens Rea – it is the mental element of a
person’s intention to commit a crime (i.e.
guilty mind, criminal intent).
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Elements of Crime
Actus Reus – it is the external element of a
person’s unlawful conduct or omission of
an act (i.e. guilty act, criminal act).
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Elements of Crime
Concurrence – mens rea and actus reus
must occur simultaneously to constitute a
crime, except for crimes of strict liability
where only actus reus is enough to impute
guilt.
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Elements of Crime
Causation – the actus reus must
proximately cause actual harm, except for
inchoate offense where the criminal attempt
is not complete but actual harm would be resulted upon completion.
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Elements of Crime
Criminal Liability
- There must be a criminal act or omission
for the imposition of criminal liability to
the actor.
- If the law imposes a duty to act, a failure to
do so will result in criminal liability (i.e.
criminal omission).
- The most important element for a crime is
actus reus, without which no criminal
liability can be imposed because there will
not be concurrence and causation.
- Only mens rea can never constitute a crime,
as a person cannot be held liable for just
thinking about committing a crime.
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Blameworthy States of Mind
Direct intention – the actor has a clear
foresight of the consequences of his
actions, and desires those consequences to
occur. It is his aim, purpose or intent to
achieve this consequence, e.g. murder.
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Blameworthy States of Mind
Oblique intention – it is the indirect intent
of the virtually certain consequence of the
defendant’s actions, and that the defendant
appreciates that such was the case.
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Blameworthy States of Mind
Knowledge – the actor knows, or should
know, that the results of his conduct are
reasonably certain to occur.
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Blameworthy States of Mind
Recklessness – the actor foresees that
particular consequences may occur and
proceeds with the given conduct, not caring
whether those consequences actually occur
or not.
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Blameworthy States of Mind
Criminal negligence / carelessness – the
actor did not actually foresee that the
particular consequences would flow from
his actions, but a reasonable person, in the
same circumstances, would have foreseen
those consequences.
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Criminal Defences
- Some criminal acts are not wrongful under
special circumstances or are reluctantly
conducted under threats
- Therefore, it would be unfair to punish the
defendant without considering those
circumstances which can mitigate or
eliminate criminal liability.
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Criminal Defences
Diminished responsibility – a partial
defence to a crime committed due to
impairment of mental functions.
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Criminal Defences
Insanity – a deranged state of mind that
makes the defendant unable to understand
what he was doing.
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Criminal Defences
Automatism – a state where the muscles
act without any control by the mind, or
with a lack of consciousness.
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Criminal Defences
Intoxication – substance intoxication
leading to diminished responsibility.
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Criminal Defences
Mistake of fact – a misunderstanding of
some fact that negates the mental element
of the crime.
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Criminal Defences
Duress – involuntary criminal conduct due
to the circumstances or threats of another.
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Criminal Defences
Necessity – necessary conduct to prevent
some greater harm.
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Criminal Defences
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Criminal Defences
Provocation – it is a mitigating factor in
sentencing that the defendant was incited to
act.
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Criminal Defences
Self-defence – use of reasonable force to
defend one’s own life or the lives of others.
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Criminal Defences
Defence of property – use of reasonable
force to protect one’s own property.
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Criminal Defences
Consent – when the victim voluntarily
agrees to the proposal or desires of another.
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Criminal Defences
Entrapment – a law enforcement agent
induces a person to commit a crime that he
would have otherwise been unlikely or
unwilling to commit. It is not a criminal
defence in itself but an abuse of the process
of the court for state agents to lure a person
into committing an illegal act and then seek
to prosecute him for doing so. In this case,
there is good reason to question the
credibility of the evidence and argue that
the case should not be brought at all.
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Burden of Proof
- A person is considered innocent until
proven guilty.
- The burden of proof is generally on the
prosecution.
- The prosecution must prove all the
elements that constitute the crime for which the defendant is prosecuted, as in Woolminton v DPP (1935).
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Criminal Standard of Proof
- The prosecution must prove each element
of the offence beyond reasonable doubt.
- This means that the evidence presented
must be so convincing that no reasonable
person could have any doubts about the
defendant’s guilt.
- The jury or magistrates must not convict
unless the prosecution has made them sure
that all the elements of the offence are
present and proved beyond reasonable
doubt.
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Reversing Burden of Proof
- When there is enough circumstantial
evidence to prove the guilt of the
defendant, the burden of proof is reversed
to the defendant to disprove his guilt. - For example, the defendant with a weapon
in hand was seen running away from the
crime scene, and the weapon was found to
be tainted with blood of the person who
was killed in a murder. - Even if no one witnessed the murder, this
circumstantial evidence is enough to allow
the jury to infer that the defendant was the
murderer. - In this case, the defendant needs to prove
that he is not the murderer. - Once the burden of proof is reversed, the
standard of proof is a balance of
probabilities (i.e. it is more likely that the
defendant did not kill the person), which is
a standard of proof in civil cases.
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STRICT LIABILITY CRIMES
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Strict Liability Crime
- It does not require the proof of the mental
element of crime, i.e. mens rea.
- The defendant is presumed to have the
mens rea for the offence.
- It only requires voluntary act or omission
of an act to constitute actus reus for
conviction.
- Strict liability crimes are primarily
statutory offences.
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Absolute Liability Crime
- Many so called strict liability crimes in fact
require some form of mens rea.
- The element of mens rea is often specified
in statute, such as ‘willfully’, ‘knowingly’,
‘recklessly’, ‘carelessly’.
- Therefore, this mental state needs to be
proved even though it is a strict liability
offence.
- However, for absolute liability crimes,
proof of mens rea is not required at all.
- The prosecution just needs to prove the actus reus for conviction.
- Absolute liability crimes are primarily
regulatory offences, also known as quasicriminal offence.
- In English criminal law, the distinction
between strict liability and absolute liability
is not always clear, and many absolute
liability crimes are simply referred to as
strict liability crimes.
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Disadvantages of Strict Liability
- Crimes of strict liability may lead to
controversial convictions as a person may
be liable even if he is not at fault or has
taken reasonable care. - It may sometimes be unjust and unfair to
the defendant as he may not have the
blameworthy state of mind or may not be
aware of the risk. - In Callow v Tillstone (1900), despite having
followed the food safety procedure, a
butcher was convicted of selling unfit meat
which was a strict liability crime at that
time. - In Environment Agency v Empress Car
(1998), the company unaware of the leak caused by a hidden defect in a seal was held liable for the pollution caused. - In R v G (2008), a 15-year-old boy was
found guilty of the offence of rape of a
child under 13 after raping a 12-year-old
girl though he had reasonable grounds to
believe that she was 15.
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Advantages of Strict Liability
- Despite its controversy, strict liability is
generally accepted as it brings a number of
practical benefits, such as the need to
ensure that the health and safety of the
public are properly protected.
- Crimes of strict liability are easier to prove
because mens rea is not required, saving
the prosecution and courts a lot of time and
resources.
- As defences to crimes of strict liability are
more difficult, it promotes compliance with
laws and regulations by making clear what
acts should not be committed or omitted
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Solutions to Problems of Strict Liability
- For crimes that are statute-based, whether
the defendant is strictly liable often
depends on statutory interpretation.
- In order to strike a balance between the
pros and cons of strict liability, courts
generally presume that mens rea is required
unless specified in statute or case law.
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Sweet v Parsley (1970)
- The court established the presumption that
criminal offences require mens rea for
conviction. - If the statue is reasonably capable of two
interpretations, the one that is most
favourable to the defendant must be
adopted. - If there is a lack of clear indication in the
Act as to whether the offence is an absolute
offence, it is necessary to go outside the
Act to find out the intention of Parliament.
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Gammon v A-G of Hong Kong (1985)
- The court reaffirmed the presumption that
mens rea is required for criminal offences.
- The presumption is particularly strong
where the offence is a true crime (i.e.
crimes that are not quasi-criminal
offences).
- The presumption can be displaced if the
Act clearly, or by necessary implication,
indicates strict liability.
- The presumption can also be displaced if
the issue is of social concern, such as
public health and safety.
- The presumption stands unless strict
liability can better achieve the objective of
the statute.
- If one subsection of the Act creates an
offence of strict liability, this does not mean
the other section will follow.
- The presumption can be displaced if the
offence is a regulatory offence or carries a
small penalty.
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Nurse and Anor v Republic of Trinidad and Tobago (2019)
- The court reaffirmed the presumption that
mens rea is the ingredient of every offence.
- If the Act lacks a clear indication that the
offence is intended to be absolute, it is
necessary to go outside the Act to establish
this was the intention of Parliament.
- If there are two reasonably capable
statutory interpretations, the one that is
most favourable to the defendant must be
adopted.
- Serious penalties militate against (prevent)
offence being of strict liability.
- Whether it is a regulatory offence and the
severity of the penalty should be
considered when deciding whether mens
rea is required.
- Some offences, in same context, may
require mens rea whilst others do not.
- Potential for unfairness to luckless victims
weighs against strict liability.
- Strict liability may be warranted for
offences of public interest.
- In deciding whether presumption of mens
rea is rebutted, the court must consider the
requirement for mens rea in other respects
or other offences in the same sections,
severity of penalties and stigma of
conviction, and importance in public
interest.
- The public interest factor can outweigh the
other factors.
- Offence only imposes absolute liability if
none of its elements requires mens rea.
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ACTUS REUS
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Elements of Actus Reus
- Conduct (always required)
- Any circumstances necessary to render that conduct wrongful (if any are required)
- Result (if any is required)
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Act Requirement
- There can be no criminal liability if the
defendant has done nothing.
- The act alone may be criminal regardless of
the result of the act, i.e. strict liability.
- Common conduct crimes where an act is
required include perjury, theft, making off
without payment, rape and possession of
drugs or a firearm.
- For conduct that meets the act requirement,
the act must be voluntary.
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Involuntary Act
- It is conduct which is done by the muscles
without any control by the mind.
- It tends to incur no criminal liability.
- It can be resulted from diminished
responsibility, insanity or automatism.
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Automatism
- It refers to conduct performed by someone who has no control over.
- It is commonly defined as spasms, reflexes,
convulsions or acts committed in a state of
unconsciousness, such as sleepwalking in R
v Burgess (1991).
- But it can also be a dissociative state due to
external factor such as post-traumatic stress
disorder from being raped, as in R v T
(1990).
- It is divided into sane automatism and
insane automatism, both of which can be
used as a defence to criminal liability.
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How to Identify Actus Reus
- Find the definition of the crime.
- Distil the actus reus from that definition.
- Identify the act of the defendant which you
are to rely on in establishing that actus reus.
- For example, under S67(1) of the Sexual
Offences Act 2003, the offence of
voyeurism is committed if for the purpose
of obtaining sexual gratification, a person
observes another person doing a private act.
- In this case, the act of observing is the
actus reus of the offence of voyeurism.
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Crime without Act Requirement
- It is a conduct crime that does not require
proof of harm.
- It requires proof of some form of wrongful
conduct.
- It does not require anybody to be hurt.
- Crimes without the act requirement include
situational crimes, crimes of possession,
crimes of omission.
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Situational Crime
- It is a criminal offence for a person found
to be in a prohibited situation.
- A person is liable for being an illegal alien
(i.e. illegal immigrate), as in R v
Larsonneur (1933).
- A person is liable for being drunk in charge
of a car in Duck v Peacock (1949).
- A person is liable for being found drunk on
the highway in Winzar v Chief Constable of
Kent (1983).
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Crime of Possession
- It is a criminal offence for a person found
to be in possession of a prohibited article.
- A person is liable for possession of
firearms, as in R v Deyemi (2008).
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Crime of Omission
- An omission can amount to the actus reus
of a crime.
- This is commonly a statutory strict liability
offence for regulatory purposes, but it can
also be a common law crime.
- It is a criminal offence for a person not to
act where there exists a duty imposed by
law or by statute.
- A person has a statutory duty to act as the
statute requires, but this duty can also be
imposed by common law.
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Crime of Omission
In R v Miller (1983), the defendant had
created a dangerous situation and owed a
duty to call the fire brigade upon becoming
aware of the fire. He was therefore liable
for his omission to do so.
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Crime of Omission
In R v Stone & Dobinson (1977), the
defendants were held liable for the death of
the sister of one of the defendants as there
was an assumption of responsibility for
them to look after her, including providing
medical help she needed.
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Crime of Omission
In R v Dytham (1979), an on-duty police
officer stood and watched a man beaten to
death outside a nightclub. He then left
without calling for assistance or
summoning an ambulance. He was
convicted of the common law offence of
willful misconduct in public office.
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Crime of Commission by Omission
- Omission can be the conduct that
constitutes an actus reus to satisfy the act
requirement. - The result of the crime is caused by doing
nothing, i.e. failure to act. - For example, a mother starves her baby to
death by not feeding it. - R v Morby (1882), a child was dying of
smallpox and the father refused to go for
help as he thought that prayer would be
enough, but the father was not liable
eventually because the prosecution failed to
prove beyond reasonable doubt that the
child died because of neglect.
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Liability for Failure to Act
- The conduct must be capable of
commission by omission.
- The circumstances must be such as to
create a legal duty to act.
- The failure to act must be in breach of that duty.
- The failure to act must be voluntary.
- The harm must be caused by the omission.
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How to Defense against Failure to Act
- The defendant did as much as could be
expected in the circumstances.
- The performance of the duty was
impossible.
- The failure to act can be justified by
arguing that doing so would create a
dangerous situation for other people.
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Result Crime
- Sometimes, the conduct alone is not
criminal without the result. - For example, throwing a stone is not a
crime, but if the stone hits a person, it will
become a crime. - Result crimes require both wrongful
conduct and harm. - There must also be a causal link between
the wrongful conduct and harm. - The prosecution must prove the causation
that the defendant’s conduct was the cause
of the prohibited result.
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Liability for Actus Reus
- A person voluntarily initiates a causal
sequence which ends in harm.
- He will normally be held liable unless an
act or event later renders the imposition of
liability inappropriate.
- For example, the chain of causation is
broken by an intervening act, so the actus
rea can no longer be seen as the cause of
the harm.
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English Criminal Code
- A criminal code (or penal code) is a
document that compiles all, or a significant
amount of, a particular jurisdiction’s
criminal law.
- Typically, a criminal code will contain
offences that are recognised in the
jurisdiction, penalties that might be
imposed for these offences, and some
general provisions.
- Unlike other jurisdictions such as the US,
English criminal law does not provide a
criminal code, though such an instrument
has often been recommended and
attempted.
- For example, the Criminal Code Bill 1989
was drafted and made a number of
recommendations, but it did not come to
fruition.
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What is the ‘act’ requirement’?
Generally, the rule is that to form actus reus, there must be a positive, physical act which causes the harm. (Generally, all offences have such external elements)
What are the three exceptions to the act requirement?
- Situational Liability (R v Larsonneur, Winzar v Chief Constable of Kent)
- Possession Liability (R v Warner, R v Okoro)
- Omissions (See below)
What are the conditions of liability for a crime of commission in respect of an omission to act?
-The act of commission must be capable of being committed by omission
-The situation must give rise to a legal duty to act
-The omission must be a breach of that duty
-The omission must be voluntary
-The omission must be the cause of the harm
Under what circumstances will a duty to act arise?
- Statutory situations (Children and Young person’s act 1933)
- Special Relationship (R v Lowe, R v Gibbins [R v Gibbins and Proctor]
- Voluntary Assumption of Duty (R v Instan)
- Contractual (R v Pittwood)
- Medical profession (Airedale NHS Trust v Bland)
- Public Official (R v Dytham)
- Creating a dangerous situation (R v Miller, R v Evans)
Continuing acts (Fagan v MPC)
What is the difference between an act and an omission?
An act is a voluntary, external act which causes the harm
An omission is the failure to perform a duty to act so that it causes harm.
Why is criminal liability for omissions controversial?
In brief, Criminal liability for omissions is controversial because it exposes people to liability for doing nothing. It is a delicate balance between collective interests and individualism, seen by some as an attack on personal autonomy There is also the question of overreach in assigning criminal liability to moral expectations. Finally, the crimes of commission by omission may run counter to the legality principle which should allow people the reasonable ability to know what is permitted and what is proscribed, legally.
