General Criminal Law questions

Question 1

What is criminal law?

Answer 1

It is a body of rules which the State imposes to prohibit certain forms of conduct because they cause harm or threaten the public welfare. The rules include punishments for their breaking.

Question 2

How did Blackstone in Commentaries on the Laws of England (1765-1769) define crime?

Answer 2

as ‘a violation of the rights and duties due to the whole community considered as a community’.

Question 3

How does Glanville Williams (1955) consider crime?

Answer 3

Glanville Williams (1955) considers it a legal wrong which may result in punishment.

Question 4

How does Hart (1958) consider crime?

Answer 4

Hart (1958) considers it is an action which will incur ‘moral condemnation’.

Question 5

What are four principles of criminal law?

Answer 5

1. The principle of individual autonomy → means that individuals are responsible for their own actions.

• As individuals are responsible for their actions, they should bear full liability for any offences committed.
• The individual autonomy principle suggests that the state should not interfere in the private lives of people

2. The principle of welfare → establishes that law operates in a social context and that weight must be given to a society and societies’ goals as a whole.
3. The harm principle and public wrongs → is fundamental and means that the state is justified in criminalising conduct to protect members of the public from harm
4. The minimalist approach → Minimalism dictates that the state should minimise the concept of harm and at least avoid criminalisation of actions that are morally ‘wrong’ but which do not cause harm to others. Thus, states are urged to avoid so-called ‘moral paternalism’

Question 6

Four considerations under the concept of minimalism which the state should consider when criminalising conduct.

Answer 6

1. Respect for human rights
   Any criminal offence should respect the freedom of expression, freedom of assembly and association, freedom of thought and religion, the right of privacy, and the right not to be discriminated against in any of those four rights
2. The right not to be punished
   Imposing a criminal penalty is a decision that is different from other legislative decisions and should be treated so by parliament.
3. Criminalisation as a last resort
   There are many formal and informal methods of control which do not require criminalisation such as morality, social convention and civil regulation
4. Criminalisation would be counterproductive
   This means that offences should not be created where the result of the criminal offences would cause greater harm than the wrong itself or criminalising the conduct will not prevent it.

Question 7

Translate:

‘actus non facit reum nisi mens sit rea’

Answer 7

‘an act does not make a person guilty unless (their) mind is also guilty’

Question 8

When a criminal case is tried in court there are two burdens which have to be discharged:

Answer 8

• The legal burden of proof
• The evidential burden

Question 9

The legal burden of proof.

Answer 9

The legal burden is the obligation on a party to prove a fact in issue. In criminal proceedings, the prosecution normally has the legal burden of proving, beyond reasonable doubt, all elements of the offence. Whether this burden has been discharged is decided by the magistrates or jury at the end of the trial, when all the evidence has been presented. If the prosecution has not discharged this burden, the case will fail.

Question 10

The evidential burden.

Answer 10

The evidential burden is the obligation to adduce sufficient evidence on a fact in issue to justify, as a possibility, a favourable finding on that issue by the magistrates or jury. Whether the evidential burden has been discharged is decided, during the course of the trial, by the judge (for example, following a defence submission of ‘no case to answer’). The prosecution must adduce sufficient evidence to prevent the judge withdrawing that issue from the jury. Even where the evidential burden is discharged on a particular issue, the evidence may not be sufficient to discharge the legal burden on that issue.

Question 11

Reverse burden.

Answer 11

When the burden falls on the defence.

When the legal burden falls on the defence the standard of proof is to the civil standard, on the balance of probabilities.

Question 12

There are three situations when the legal burden can fall on the defence:

Answer 12

1. insanity
2. express statutory exceptions
3. implied statutory exceptions.

Question 13

Definition of murder adapted from
Coke’s Institutes 3 Co Inst 47.

Answer 13

The unlawful killing of any human being under the Queen’s peace with malice aforethought.

Question 14

What is the actus reus of murder?

Answer 14

The prohibited act and, therefore, actus reus, is the unlawful* killing of any human being under the Queen’s peace**.

*Not justified, e.g. self-defence.
** Not during the heat of battle.

Question 15

Who criminalises conduct?

Answer 15

Parliament

• through legislation

Courts

• through the common law; for example, the offence of murder
• Knuller (Publishing, Printing and Promotions) Ltd v DPP (1973) AC
• DPP v Withers (1975) AC 842
• R v R (1991) 1 AC 599
• C (A Minor) v DPP (1996) AC 1

Question 16

Which of the following bodies can enact binding rules of criminal law? Select one or more:

1. Parliament
2. Multilateral Treaties
3. United Nations Security Council
4. Local Councils
5. Courts
6. Ministry of Justice and Home Affairs
7. Police

Answer 16

Answer:

1. Parliament
2. Multilateral Treaties
3. United Nations Security Council

Question 17

Which of the following is correct?

Select one or more:

1. Every criminal offence is predicated on an appropriate criminalisation principle.
2. Public opinion is a major consideration in the criminalisation process by parliament.
3. The principles of minimalism and harm dictate the penalty imposed should not be excessive in relation to the offence and that some harm need be inflicted.
4. The principle of individual autonomy aims to protect the defendant from the vengeful wishes of the individual victim or the victim’s family.

Answer 17

Answer:

1. Every criminal offence is predicated on an appropriate criminalisation principle.
2. The principles of minimalism and harm dictate the penalty imposed should not be excessive in relation to the offence and that some harm need be inflicted.

Question 18

Result actus reus - Result crime

Answer 18

A “result crime” prohibits particular consequences which ensue from conduct on the part of the accused.

Like murder, which requires a specified consequence for the actus reus.

Question 19

Conduct actus reus - Conduct crimes

Answer 19

A “conduct crime” prohibits conduct regardless of consequences.

Where the performing of an action irrespective of the consequences of that action amounts to the actus reus of an offence.

A good example of a conduct crime is blackmail contrary to s21 Theft Act 1968.

Question 20

Definition of blackmail.

Answer 20

Blackmail is defined as:

Making an unwarranted demand with menaces with a view to making a gain or a loss for himself or another.

Question 21

Actus reus of blackmail.

Answer 21

The actus reus is
making the unwarranted demand with menaces.

The actus reus is committed when the conduct of making the threats is undertaken.

Question 22

Consider how the actus reus for the offence of indecent exposure has changed over time.

Answer 22

• Independent exposure under s28 Town Police Clauses Act 1928 was repealed
• by the Sexual Offences Act 2008 and
• replaced by genital exposure under s66 Sexual Offences Act 2004.

Question 23

Indecent exposure contrary to s28 Town Police Clauses Act 1847 requires the following actus reus: Wilfully and indecently exposes his person with the consequence that a person in the street is annoyed, obstructed or endangered.

Was it a result or conduct crime?

Answer 23

Indecent exposure contrary to s28 Town Police Clauses Act 1928 was a result offence as it required the exposure to have an effect on a pedestrian, i.e. the consequence of the action was an essential element of the actus reus.

Question 24

Genital exposure contrary to s66 Sexual Offences Act 2003 requires the following actus reus: Exposure of genitals.

Identify whether the actus reus creates a result or conduct crime.

Answer 24

Genital exposure under s66 Sexual Offences Act 2003 is a conduct offence.

• The offence takes place when the genitals are exposed.
• There is no requirement that there is a result or consequence of the exposure.
• The mere conduct of exposing the genitals satisfies the actus reus.

Question 25

Explain the Relationship between Mens Rea and Actus Reus in reference to criminal liability.

Answer 25

The actus reus and mens rea must take place at the same time, contemporaneously, for criminal liability to arise. They need to ‘collide’.

Question 26

In deciding whether the actus reus and mens rea take place at the same time, there are three principles which need to be considered:

Answer 26

1. The mens rea and actus reus must relate to the same act or omission
2. The mens rea need not last beyond the moment when the actus reus started
3. The actus reus can be continuing

Question 27

The Mens Rea and Actus Reus Must Relate to the Same Act
Example by Blackstone’s Criminal Practice:

Answer 27

Tim plans to kill his wife, Millicent, by cutting her throat. Tim plans to kill Millicent on Friday.

On Tuesday Tim is driving Millicent to work and accidentally crashes the car. As a result of the accident Millicent dies. Tim is absolutely delighted.

Tim has not committed the offence of murder because, although he intended to kill his wife, the actus reus and mens rea do not collide.

Question 28

The mens rea does not need to last beyond the moment at which the defendant causes the actus reus to happen.

What does this mean?

Answer 28

This means that once the action of the offence has been started, even if the defendant changes his mind in the middle of the commission of the actus reus of the offence, the offence is still committed.

The actus reus and mens rea collide or take place at the same time when the actus reus is initiated.

Question 29

Actus reus need not be a single incident.

It can be:

Answer 29

1. A continuing act
2. A series of acts
   The mens rea and actus reus need only collide once during the continuing act or series of offences

Question 30

Describe:

Series of Acts Actus Reus

Answer 30

A series of individual acts can be treated as if the acts were a single or extended continuous course of conduct - so a single or extended continuous actus reus.

This means that the mens rea and actus reus only need to collide during the series of acts.

Question 31

How does Church [1966] 1 QB 59 extend the principle of a series of individual acts in Thabo Meli v The Queen [1954] 1 WLR 228?

Answer 31

The difference between Church and Thabo is that in Thabo there was a plan and in Church, there was no plan.

Question 32

Explain the relation between actus reus and voluntary.

Answer 32

For actus reus to exist, the act or omission needs to be ‘voluntary’. This means that the defendant has control over the actions.

Question 33

An act outside the defendant’s control is known as

Answer 33

involuntary action

(Blackstone’s Criminal Practice (2015) explains that a person who is against his will thrown out of a window by his enemies and lands on a car damaging it does not have the actus reus for criminal damage because the act was involuntary or outside his control)

Question 34

Give examples of involuntary action

Answer 34

Physical compulsion (like in Blackstones example of being thrown onto a car and damaging it)

Uncontrollable reflex actions, such as a sneezing fit

diabetic hypoglycaemia

sleepwalking

an attack by a swarm of bees

all of which give rise to the defence of non-insane automatism

Question 35

Are actions as a result of duress considered to be involuntary action?

Answer 35

No, because the defendant still had the choice whether to act or not, albeit under duress, whereas a person who acts involuntarily has all choice removed from the act.

Question 36

Are acts which resulted from the defendant’s own culpability considered to be involuntary actions?

Answer 36

No.

Example: the defendant drove whilst suffering from exhaustion and fell asleep at the wheel when driving (Kay v Butterworth (1945) 173 LT 191).

Question 37

Is an act which results from self-induced intoxication considered to be involuntary action?

Answer 37

No, the intoxication which caused the action was voluntary. (Lipman [1970] 1 QB 152)

Question 38

Where an involuntary act results from ‘disease of the mind’ rather than an external factor the defence is one of

Answer 38

insanity rather than non-insane automatism, for example brain tumours, hypoglycemia and epilepsy.

Question 39

Causation

Answer 39

Causation is the link between the action and the consequence.

It arises in any ‘result’ offence but is most commonly considered in relation to murder cases.

Question 40

To establish the actus reus for the offence, two types of causation must be established:

Answer 40

Factual causation

Legal causation

Factual causation is established first, then legal causation is established. Both must be in place for there to be liability for the offence.

Question 41

Factual Causation

Answer 41

The test to demonstrate causation in fact is often described as the ‘but for’ test. This test is established when the result would not have occurred ‘but for’ the defendant’s culpable actions or omission.