Elements of a Crime

Question 1

What is Actus Reus?

Answer 1

Physical/Guilty Act: An act, a failure to act (omission) or can arise from a state of affairs.

Question 2

What is Voluntary Nature (case too)?

Answer 2

The act or omission must be voluntary on the part of the defendant.
Hill v Baxter [1958]

Question 3

What is State of Affairs Crimes (case too)?

Answer 3

Exception to general rule on voluntary acts.

Refers to the conditions surrounding a person and/or their environment in relation to a criminal offence.

Defendant will be convicted even if they didn’t act voluntarily.
R v Larsonneur [1933]

Question 4

What are omissions?

Answer 4

General Rule is that the defendant must commit a positive act, which is prohibited by law, in order to commit the actus reus of a crime.

Question 5

What are (Omissions) Statutory Exceptions? (Case too).

Answer 5

In some cases, it is possible for an omission to form part of the actus reus of a crime.

An Act of Parliament can create criminal liability on a person by way of an omission.
e.g. s.170 Road Traffic Act 1988.

Also apply in more serious crimes, such as murder.
e.g. s.5 Domestic Violence, crime and victims act 2004.

Question 6

What are (Omissions) Common Law Exceptions?

Answer 6

For common law crimes an omission is only sufficient for the actus reus where there is duty to act.

Question 7

Contractual Duty. Case.

Answer 7

A contract may give rise to a duty to act.

This duty can extend not just for the benefit of the parties to the contract, but also those who are not party to the contract, but are likely to be injured by failure to perform it. (like other staff for a lifeguard)

R v Pittwood [1902]
R v Adomako [1995]

Question 8

Duty of Relationship. Case.

Answer 8

Special relationships tend to be implied between members of the same family.

An obvious example of a special relationship giving rise to a duty to act is that of parents to their children.

The same will apply where a person is looking after their elderly parent.

R v Gibbins and Proctor (1918)

Question 9

Voluntary Duty. Case.

Answer 9

People may choose to take on responsibility for another person.
They will then have a duty to act to protect that person if the person falls into difficulty.

R v Stone and Dobinson [1977]

Question 10

Duty of Official Position. Case.

Answer 10

A duty through official position is usually demonstrated in statutory law.

It is very rare for common law to impose a duty. It is basically a duty to act based on a person official position (public office), e.g. a police officer is under a duty to prevent crime.

R v Dytham [1979]

Question 11

Duty Through Causing a Dangerous Situation

Answer 11

Where a person is aware or ought to be aware that he or she has created a dangerous situation and does nothing to prevent the relevant harm of death may be criminally liable under omission.

The creator must only take reasonable steps to prevent the danger.

R v Miller [1983]
R v Evans [2009]
DPP v Santana-Bermudez [2003]

Question 12

The Duty of Doctors

Answer 12

If this discontinuance of treatment is in the best interests of the patient then it is not an omission which can form the actus reus.

Airedale NHS Trust v Bland [1993]

Question 13

What are the three elements the prosecution must prove- Actus Reus Causation.

Answer 13

The defendant’s conduct was the factual cause of that consequence.

The defendant’s conduct was in law the cause of that consequence.

There was no intervening act which broke the chain of causation.

Question 14

What is Causation (Actus Reus)?

Answer 14

Where a consequence must be proven the prosecution must show that the defendant’s conduct was the cause of that consequence.

Question 15

What is Factual Causation? Case.

Answer 15

Defendant will not be held liable unless the victim’s consequence was caused by the defendant’s actions or omissions.

To determine the factual cause of the victim’s consequence, courts use the ‘but for’ test.
“But for the defendant’s actions or omissions, would the victim have suffered the consequence?”

If the answer to the question is no, the defendant will be criminally liable.

R v White [1910]
R v Pagett [1983]

Question 16

What is Legal Causation and the De Minimis Principle? Case.

Answer 16

Once factual causation has been established the judge must direct the jury as to whether the defendant’s acts or omissions are sufficient to amount in law to cause the consequence.

De minimis Principle – the defendant’s conduct must be more than the minimal cause of the consequence.
R v Kimsey [1996]

To establish the legal cause, the courts ask one question:
Was the defendant’s actions or omissions an operative and substantial cause (or significant contribution)?
R v Smith [1959]

Question 17

Novus Actus Interveniens

Answer 17

There must be a direct link between the defendant’s actions or omissions and the consequence caused. Chain of causation

Sometimes a secondary act may intervene and break the chain of causation.

If this happens, the defendant may not be held criminally liable for the consequence on the victim.

Question 18

What are the three ways in which a chain of causation can be broken?

Answer 18

An act of a third party.

The victim’s own act.

A natural, but unprecedented, event.

Question 19

Acts of a Third Party. Case.

Answer 19

In order to break the chain of causation the intervening act of a third party must be so sufficiently independent from the defendant’s conduct and sufficiently serious enough.

Where the defendant’s conduct causes a foreseeable action by a third party, then the defendant is likely to be still held to have caused the consequence.
In Pagett the court held that the actions of the third party, i.e. the police, as a reasonable response to the defendant’s initial act and therefore the chain of causation was not broken.

The operative and significant cause of the consequence must shift from the defendant to the third party for it to break the chain of causation.

Question 20

Medical treatment from a third party is unlikely to break the chain of causation. Acts of a Third Party.

Answer 20

R v Cheshire [1991]

Question 21

Medical treatment will only break the chain of causation in the most extraordinary of cases where the original conduct is no longer the operative cause of the consequence. Acts of a Third Party.

Answer 21

R v Jordan [1956]

Question 22

Acts of the Victim.

Answer 22

Traditionally the approach has been that if an intervening event is so extraordinary that it is unforeseeable then this will break the chain of causation.

If the actions of the victim are a foreseeable action under the circumstances, the defendant will still be criminally liable as long as those actions are proportionate to the threat.

R v Williams and Davis [1992]

Question 23

If the defendant causes the victim to react in a foreseeable way, then any consequence to the victim will have been caused by the defendant. Acts of the Victim.

Answer 23

R v Roberts [1971]

Question 24

What is the Thin Skull Rule? Case.

Answer 24

If the victim has something unusual about his or her physical or mental state which makes an injury more serious, the defendant will be liable for the more severe injury.

The defendant must ‘take the victim as they find them.’

R v Blaue [1975]

Question 25

What is Natural Unprecedented Events?

Answer 25

An intervening act which is a natural result will not break the chain of legal causation.

‘If the defendant knocks a man unconscious on the beach it would be a natural result that when the tide comes in the victim would drown and the defendant would have caused his death.’

‘However, the defendant will not be liable for the crime if the consequence was caused by an unrelated, unprecedented event, such as a car veering off the road onto the beach hitting the victim and killing them instantly.’

Question 26

What is Mens Rea?

Answer 26

Guilty Mind. Criminal offence examines the state of mind of the defendant at the time of committing the offence.

Unless the offence is one of strict liability, the absence of mens rea will result in an acquittal.
R v Clarke [1972]

Question 27

Intention (Specific Intent)

Answer 27

Highest Level of Mens Rea.
To be guilty the accused must have at least the minimum level of mens rea required by the offence.

The intention/ meaning to do something on purpose.

Question 28

Direct Intention

Answer 28

Direct intention is where the defendant directly intends to bring about a specific consequence, e.g. causing death by purposefully stabbing a victim to bring about that person’s death.

R v Mohan [1975]

Question 29

Indirect/Oblique Intention

Answer 29

In order to be criminally liable through indirect intention, the defendant must have foresaw that their actions or omissions could bring about the prohibited consequence.

This is known as foresight of consequences.

R v Moloney [1985]

The House of Lords held in Moloney that foresight of consequences only provided evidence of intention, it is not intention itself.

Courts developed a common law test known as the virtual certainty test – derived from the case of R v Woollin (1998).

Question 30

What is the Common Law Test called the ‘Virtual Certainty Test?

Answer 30

The current test now used to establish whether the defendant will be held liable under oblique intention, based on virtual certainty, is:
The consequence was a virtual certainty as a result of the defendant’s actions; and
The defendant was aware of the risk of the actual consequence.

Question 31

Recklessness. Case.

Answer 31

This is a lower level of mens rea than intention.

Recklessness is the taking of an unjustifiable risk.
It has to be proven that the defendant realised the risk but decided to take it.

R v G and Another (Gemmell and Richards) [2003]

Question 32

Recklessness the minimum level of mens rea required by..

Answer 32

…all assaults except for Section 18 of the Offences Against the Person Act 1861, this will be one of specific intention.

Question 33

What is the current test for recklessness?

Answer 33

The current test for recklessness is now:

Had the defendant recognised that there was some risk involved and has nonetheless taken that risk?

Question 34

If the defendant still has a higher level of intention (with recklessness) will they be found guilty of the offence?

Answer 34

Yes.

Question 35

What is negligence?

Answer 35

if he or she fails to meet the standards of a reasonable person, they not act as a reasonable person would have under the same circumstances.

Question 36

What level of mens rea is negligence?

Answer 36

The lowest form.

Question 37

What test is used for negligence?

Answer 37

The Objective Test.

Question 38

Is what the defendant intended or thought at the time relevant?

Answer 38

No, it isn’t.

Question 39

Give an example of negligence.

Answer 39

S. 3 of the Road Traffic Act 1988 makes it an offence to drive without due care and attention, in other words to drive negligently.
A reasonable road-user would drive with due care and attention.

Question 40

What is the only mainstream offence for which negligence is relevant?

Answer 40

Manslaughter.

Question 41

What is gross negligence manslaughter?

Answer 41

One form of manslaughter.
General measurement in civil cases would not be enough to warrant liability, the negligence must be gross, i.e. enough to warrant criminal liability.

Question 42

Give a case for gross negligence manslaughter.

Answer 42

R v Adomako (1994)

Question 43

What is transferred malice and give a case?

Answer 43

Principle that the defendant can be guilty if he intended to commit a similar crime but against a different victim.
R v Latimer (1886)

Question 44

When may a person not be guilty of transferred malice, give a case?

Answer 44

Where the mens rea is for a completely different type of offence, then the defendant may not be guilty through transferred malice.
R v Pembliton (1874)

(tried to disperse crowd by throwing stones but smashed a window).

Question 45

What specific other type of case can transferred malice be used, give a case?

Answer 45

In cases which involve a person suspected of causing another person’s death.
R v Mitchell [1983]
R v Gnango [2011]

Question 46

What is the Coincidence Rule?

Answer 46

Where there is a continuing act for the actus reus and, at some point while that act is still going on the defendant has the necessary mens rea, then the two coincide and the defendant will be guilty. They have to be linked.

Thabo Meli v R [1954] (similar to)
R v Church [1965]
Fagan v Metropolitan Police Commissioner [1986]