General elements of criminal liability Flashcards
What are the three ways Actus Reus may be committed?
1) Positive Act
2) State of Affairs crimes
3) Crimes of omission
What is a Positive Act?
Stabbing someone, speaking, doing something
What is a State of affairs crime?
Crimes of absolute liability.
The conduct need not be voluntary and no mens rea required where D has done nothing but is responsible for the state of affairs eg Larsonneur 1933
What is the case where a French woman was deported from England to Ireland, sent back to the UK handcuffed and was found guilty?
Larsonneur 1933
What is a Crime of omission?
What is an omission? A failure to act to prevent harm.
We follow the legal principle that there is no liability for failing to do something, only for doing something wrong. But social policy is that we should encourage this behaviour, so a person can be liable for failing to do something if a duty exists.
What law does France have?
The good Samaritan Law - Moral duty is legal obligation
Why might D be criminally liable for omissions?
1) A duty arising from a contract eg Pittwood 1902
2) A duty arising from a statute eg S5(4) Theft Act 1968 (Getting property by anothers mistake)
3) A duty arising from the creation of a dangerous situation Miller 1983 or Santana Bermudez 2003
4) A duty arising from special relationship exists eg Gibbins & Proctor 1918 or Khan & Khan 1998
5) A duty arising from a public or legal duty to act
What i the case where someone went to lunch, left a gate open, and people in a hay cart died due to it.
Pittwood 1902
What is the case where a Police officer was injured by sharps in D’s pocket whilst searching him and
what was the case where D was living in a squat, fell asleep smoking, and woke up to the house being on fire but didn’t attempt to put it out?
Santana Bermudez 2003
Miller 1983
What is the case where a father and his partner starved a 7 yo to death by failing to feed them?
What is the case where a man and his girlfriend took care of his little sister and she died due to him not calling for medical attention?
What was the cause where D supplied heroin to another person who took it in his presence and collapsed, and when D left and returned he was dead
What are the duty attached to these?
Gibbins & Proctor 1918 - Automatic assumption of duty to care
Stone & Dobinson 1977 - Voluntary assumption of duty to care
Khan & Khan 1998 - What happened and why was there no criminal liability?
What happened in Khan v Khan versus Evans 2009?
Evans 2009 Mother & older daughter gave heroin to younger daughter who died. They were both found liable despite the Khan rule?
What was the case where A police officer was going off shift, saw V getting kicked to death and did not intervene as he was off duty and was still guilty of omission?
Dytham 1979
What is 3 x C?
Conduct Crimes require voluntary conduct (act or sometimes omission) and certain circumstances eg offence of perjury conduct: lie
circumstances: on oath
Consequence or result crimes also require consequence to be caused by conduct
ie did conduct cause consequence? Murder requires death to be caused by D.
What is a mens rea?
Guilty mind
What are the types of mens rea?
Intention direct
Intention Oblique
Recklessness
Negligence
What does Actus non facit reum, nisi mens sit rea mean?
A guilty act is not enough - the act is not guilty unless the mind is as well
Are there any outliers to this rule?
AR and MR may not coincide but guilty due to the idea of continuing act and one transaction
Allow the court to find a seperate actus reus and mens rea coinciding despite not happening at the same time
What is the case where a Police officer told D to park, they stopped on the officer’s foot and once told to stop D told him to wait, and what is the legal point?
Fagan v MPC 1968, D continued with the act, therefore making it a continuing act.
What is the case where D beat up V intending to kill him, he didn’t die so he threw him off a cliff, V dies then - and what is the legal point?
R v Thabo Meli 1954, One Transaction - A continuing series of actions may all be one transaction.
What was the case where a man attacked a girl in a car, she did not die but he thought she had, he threw her into the river and she instead drowned there?
R v Church 1966, guilty as it was a transaction. Series of continuing acts.
What is transferred malice and the cases related to it?
Mens rea may be transferred from one person to another, whether they were the original victim or not, eg A intends to hit B but hits C instead by accident.
R v Mitchell, R v Latimer and R v Pembliton
What is the cases where:
1) D tried to jump post office queue, elderly man mentioned it, he hit old man and old man fell onto elderly lady who broke her leg and died in treatment. Guilty of Transferred malice.
2) D aimed to hit someone with a belt in a pub, when he accidentally hit a woman’s face. Guilty of malicious wounding.
1) R v Mitchell 1983
2) R v Latimer 1886
What is the case where D was fighting, threw a stone intending to hit people but it instead broke a window and the legal point attached to it?
Mens rea cannot be transferred to a different defence, they were instead guilty of both assault and criminal damage.
Has the doctrine ever been questioned?
A-G Ref No3 1994, D stabbed gf, she went into labour, baby wasn’t stabbed but died later. Malice was not transferable.
Describe Motive and Mens Rea?
Mens rea has nothing to do with motive (Mohan 1975)
Mens rea is whether the accused intended to do it not why
Motive may be relevant to sentencing eg Mercy killing
R v Hicklin 1868
What was the case where someone was charged with possessing obscene books claiming it was to expose Roman Church where they were found guilty despite good motive.
R v Hicklin 1868
What are Specific and Basic intent defences?
Defence of voluntary intoxication applies differently depending on which offence D is charged with
If Specific: Can be a defence
Basic intent: Makes no difference
So what is it? Must have intended a specific outcome, eg murder.
What is basic intent? Lower level as intent such as recklessness.
Describe causation
If the act has to cause a consequence a link must be shown between the act and the result. Used only in result or consequence crimes.
What are the Rules of Causation?
To be responsible for consequence conduct must be more than a minimal cause. If result would have happened anyway, D will not be guilty.
1) Cause in fact
2) Cause in law
What is De Minimus Principle?
Very minimal acceleration in the death may be ignored eg pricking finger of someone rapidly bleeding to death.
Describe Cause in Fact?
Act must be the factual case of the crime.
AKA but for test- but for the conduct of the accused it would not have happened eg White 1910 or Pagett 1983
What is Causa sine qua non in English?
Without that act or omission the injury would not have occured
What is the case where a son put poison in his mothers drink and she died of a heart attack just prior?
What is the case where D held his pregnant girlfriend as a human body shield when police was shooting at them?
White 1910. She would of died anyways, so no factual causation.
Pagett 1983. She would not of died anyways, so factual causation there.
Describe Cause in Law
But for test produces wide range of causes, but not every person will be legally liable. It is instead moral, is D to blame?
eg Kimsey 1996, more than slight or trifling cause of the consequence, D must be more than min cause.
Multiple causes- D only needs to accelerate death. DO not have to be solec ause. If harm has been caused by multiple people, the significant causers of harm will be found guilty.
What is the case where D lost control of his car and killed another driver?
Kimsey 1996 - Dangerous driving led to guilty charge
What are the Rules of Legal causation?
1) D must have done something wrong. (Dalloway 1847, Hughes 2013)
2) Take the victim as you find them AKA thin skull rule
3) Intervening actions of victim
4) Intervening actions of third party
What is the case where a driver not holding reigns when a child ran under the wheels and killed the child, but was not liable as it wouldve happened whether he was holding the reigns or not?
D had accident in camper van, not fault but had no insurance and was charged for death of a driver at fault but not guilty as breach of law did not cause death
Dalloway 1847
Hughes 2013
Describe the Thin Skull rule
If there is something special about V making them vulnerable, D may argue condition breaks the chain of causation. Usually will fail.
Accused must accept and be responsible for all peculiarities of the victim.
Conclusion - D is liable and chain will not be broken if:
V has medical condition making injury more severe Hayward 1908
Victim has beliefs that make the injury more severe Blaue 1975
What is the case where a woman was stabbed and refused treatment due to her religion and ended up dying and the D was still found guilty?
R v Blaue 1975
Describe the intervening actions of the victim
D is still responsible if Jury are satisfied beyond reasonable doubt that original act is still operative & substantial cause of death. Eg victim may try to escape and fall under bus.
What is the Roberts Principle of ‘ Daft behaviour ‘
Roberts 1971 - D is responsible for what Victim does if it is foreseeable
What is the case where A girl jumped from the car due to sexual advances and got injured but D was still held liable?
What is the case where the owner of a car repair shop was run over by burgars trying to stop them and reasonably foreseeable so D liable?
Roberts 1971
Bristow, Dunn & Delay 2012
What is the causation in drug cases & unreasonable response
Drug cases: Free and voluntary act of self-injection by V is intervening act eg Kennedy 2007
Unreasonable response: Threat is minor and V takes drastic action eg Williams 1992
What is the act where V self injected and the supplier was not guilty?
Kennedy 2007
What is the act where V jumped from car due to D allegedly trying to rob him
Unforeseeable and unreasonable so D not guilty, nevertheless it was Williams 1992.
Describe the intervening acts of 3rd parties
Courts reluctant to find that medical treatment can break chain, It is not intervening unless negligence so potent that it renders D’s conduct insignificant as it makes it part of the history of the event eg Smith 1959 or Chesire 1991
What is the case where a soldier stabbed another soldier in the lung, and on the way, they were dropped and injured in respiration. Chance of recovery was 75% prior. D still liable as stabbing was overwhelming cause.
D shot victim. V had rare complications iwth treatment and ti caused V’s death and as injuries no longer life threatening; D not liable.
Smith 1959
Cheshire 1991
Is switching off life machines acceptable medical treatment?
Malcherek & Steel 1981 - D will still be guilty if treatment discontinued providing initial attack is operative cause of death
Is intention the most blameworthy type of MR?
Yes
What did Mohan 1975 lay out?
Motive is different to intention
What did the Criminal Justice Act 1967 decide?
Jury must consider all evidence to decide whether offender foresaw and intended (Not the RP) and any test is only evidence of intention, not automatically intention itself.
Which offences need intention? Specific intent offences.
What are the types of intention?
Direct Intention
Oblique, indirect or inferred intention
Subjective Recklessness
Negligence
Describe Direct Intention
Consequence is intended when it is D’s aim or purpose
Must want it to happen, eg Getting a gun, pointing it to head and saying “ You’re dead “ and pulling the trigger.
Direct intention difficult to prove so criminal law only requires proof of oblique intent.
Describe Oblique intention
Oblique intention is when D knows consequence is virtually certain eg a by-product even if they dont want it to happen and it is not their aim.
GOlden rule - Juries may need direction in these complex cases
Indirect intention raises questions of foreseeability, probability and natural consequences. If D saw consequences of actions as virtually certain then guilty.
What are the cases where:
1) D shot stepfather in gun competition, accident, not guilty on appeal.
2) Fire killed child. D knew high probability of harm and tried for murder despite no intention to kill.
3) Threw baby into wall trying to throw somewhere else. Baby died. Not guilty for murder on appeal. (Current law)
4) Severing conjoined twins sympathetically and therefore killing weaker is allowed
5) Threw boy into river. Knew he couldn’t swim. He died. Convicted for murder.
1) Moloney 1985
2) Nedrick 1986
3) Woollin 1967 - Jury are entitled but not bound to find intention if: THey feel consequences were VC to follow from D’s action and D foresaw this
4) Re A 2000
5) Matthew & Alleyne 2003
Describe Subjective Recklessness.
Conscious taking of unjustified risk
D must be aware of risk and risk must be unjustifiable
Justifiable Risk: Surgery to save life with little chance, driving dangerously to avoid child in the road knowing you may hit people or cars.
What is recklessness sufficient for?
Assault and Battery, ABH, Crim dmg, GBH
What was the case where D took pre-payment gas meter from unoccupied house, caused gas leak, and then it seeped through the door and poisoned the V and he was not guilty due to no intent?
R V Cunningham 1957
Describe Negligence
Gross negligence is mens rea required to prove Gross Negligent Manslaughter, based on civil law of negligence. Eg R v Adomako 1994
What is the case where D was an anaesthetist and 45 minutes in switched with another, where the patient had cardiac arrest within next 45 minutes as Oxygen tube disconnected & D hadn’t noticed for 9 ins. Held - established crime above, no reasonable anaesthetist would not notice.
R v Adomako 1994
Can D be guilty even if the actus reus was not voluntary and no mens rea is needed for strict liability?
Yes
What was the case where D was deported to Ireland, returned to the UK by force and was still arrested for breaching aliens order 1920?
R v Larsonneur 1933
What is the definition for Strict Liability Crimes?
An offence which does not require proof of fault for at least one part of the actus reus ie D must do the actus reus voluntarily but does not need mens rea
Where are SL offences found?
Usually in statute law. P must be very clear when creating an offence of this type as there is a presumption that mens rea is required in criminal statutes.
What is the case where D was pharmacist, supplied prescription drugs, prescriptions later found forged, D did not act dishonestly, improperly or negligently… still convicted.
Pharmaceutical Society of GB v Storkwain 1986
Where may No Fault arise in SL?
D may be totally blameless but be guilty for AR even if they took care to avoid it
Which is the case where D asked a vet to examine a carcass to see if it was safe to eat, the vet said it was fine, and then upon selling it it was unfit and D was found guilty anyways?
Callow v Tillstone 1900
What happens when a statute does not make strict liability clear?
Court decides. Uses the principle in Gammon (Hong Kong) Ltd v A-G 1985.
What was the case where The contractor, project manager and site agent for building works in Hong Kong were charged with substantially deviating from approved plans which was likely to cause risk of injury to any person or damage to any property contrary sections 40(2A)(b) and 40(2B)(b) of the Hong Kong Buildings Ordinance (revised ed. 1981) (the Ordinance). The defendants were acquitted by the magistrate on the ground that it was necessary for the offence that there was knowledge that the deviation was material, which had not been proved. On Appeal, the Court of Appeal of Hong Kong held that mens rea was not required for the offences. The case was remitted to the magistrate.
The presumption of law that mens rea is required for any criminal offence can only be displaced if (1) it is clear by the words of the statute creating the offence, or if the statute is concerned with an issue of social concern, such as public safety, and (2) the imposition of strict liability for the offence
“would be effective to promote the objects of the statute by encouraging greater vigilance to prevent the commission of the prohibited act.”
The effectiveness of the Ordinance in protecting public safety would be weakened if the mens rea of knowledge of the materiality of the deviations was required. The offences in question therefore created strict liability and the convictions were upheld.
Gammon (Hong Kong) Ltd v A-G 1985
What is Strict Liability more appropriate for?
Quasi-criminal/Regulatory Offences - acts which carry no moral stigma on conviction and are not severe assumed to be strict liability offences ie where they are not truly crim in nature.
Describe how they discover if there is or is not mens rea required
1) There is a presumption that mens rea is required unless rebutted. Presumption against imposing strict liability without good reason. eg Sweet v Parsley 1969
2) Statutory interpretation, wording of act may indicate whether it requires MR or not. Mens rea needed: Knowingly, Wilfully, Permitting, Intentionally, etc.
May not be needed: ‘cause (Alphacell v Woodward 1972), possess, use
3) Issue of social concern & public safety, presumption more likely displaced and more likely SL if it involves social concern eg misuse of drugs, road safety, gambling
Licensing abuse Cundy v Le Cocq 1884
Selling unfit food (Consumer protection) Smedleys Ltd v Breed
Unsafe buildings Gammon Ltd v A-G Hong Kong 1985
4) Penalty Imposed - If statute seeks to impose small penal sanction courts are most likely to make it SL. Very few involve prison eg speeding.
5) Necessary to enforce the law - Presumption in favour of MR stands unless strict liability would encourage observation of law.
What were the cases where:
1) D let farmhouse out to students where cannabis were being smoked by the students. D charged for concerned for management of premises used for purpose of smoking cannabis, NG as mens rea required.
2) D charged of selling alcohol to drunk person. Individual did not display any signs of drunk, but offence complete, drink sold and customer was drunk.
3) 4/3.5 mil tins of peas held caterpillar unavoidable due to collection process. Held that fine that even with human agency it is unavoidable. However, caterpillar could’ve been took out.. so liable.
1) Sweet v Parsley 1969
2) Cundy v Le Cocq 1884
3) Smedleys Ltd v Breed 1974
What is the case where D was charged with causing polluted matter to enter river as the pipe belonging to D’s factory had been blocked and not fixed. Still held liable.
Alphacell v Woodward 1972.
How are illegal broadcasts dealt with?
Blake 1997
D was accused of making unlicensed radio broadcasts. Held as guilty for offence as this was created for public safety to avoid interference with emergency broadcasts.
What is a possible defence for SL?
Due diligence
No consistency in use of this defence and can make it hard for court to decide whether it is available to D eg Lim Chin Aik 1963 (But Callow is good too)
