General Elements Of Criminal Liability Section a Flashcards
What is Actus reus
Actus reus is an action or conduct which is a constituent element of a crime, as opposed to the mental state of the accused (mens rea).
What is men’s rea
mental state of the accused (mens rea).
Definition of murder
the unlawful killing of a human being under the King’s peace with malice aforethought’ (common law offence)
What does actus Reus include ?
Conduct
Circumstances
Consequences
What is Conduct
an act or omission (i.e. killing in a murder)
What is Circumstances
things which surround the act
AWhat is Consequences
certain consequence for ‘result’ crimes (i.e. death in murder)
Applying the three things actus reus may include give a definition
the actus reus of murder is killing (conduct) which is unlawful of a human being in peace time (circumstance) and which results in death (consequence)
When is killing lawful
if in war, self-defence or assisted dying.
What is an omission
Omission is the failure to fact (i.e. not killing but failing to perform a duty which would lead to their death)
Why is omission not always grounds to being guilty etc?
> This cannot usually make someone guilty of an offence no ‘good Samaritan’ rule like in France (i.e. in England, if somebody is drowning and you do not intervene, you cannot be punished, unlike in France)
When will omission be grounds for being guilty of an act
Exception lies where there is a duty to act (stone v dobison or donoghue and Stevenson)
What do omissions lead to (sentence outcome)
Most cases on omissions led to convictions of manslaughter
Other cases on omissions led to convictions of other crimes?
see Miller, Dytham
Gibbins & Proctor was murder because there was evidence they acted with intent
What was vickers? (Case)
D broke into a cellar, came across the old deaf female shop-owner and hit her several times, kicking her once in the head, leading to her death. The CoA upheld his conviction.
What did vickers lead to? JP
(Malice aforethought) They pointed out that if a defendant intends to inflict GBH and the victim dies, this should imply malice aforethought in English law.
What was established in Wilson?
> Foetus does not have the same rights as a human until after the umbilical cord has been severed
What is a positive act leading to death?
A positive act, such as giving a lethal injection, would be murder, even though a doctor can switch the machine off
What case is omissions considered to be in their best interest
see Airedale NHS Trust v Bland (omission of duty (feeding him) as it was in their ‘best interests’)
What can reduce a sentence.
Causation, consequences, intervening acts and medical treatment
Define consequences
- It is not the act, but the result that is important in ‘result crimes’ (like murder and offences against the person)
What are some examples of ‘consequences’ (the result of the defendants act)
Assault (if the victim is scared)
Battery (if the victim is touched)
ABH (if the victim is hurt/harmed in any way)
Manslaughter (if the victim dies)
GBH (if the victim is seriously harmed
Murder (if the victim dies and the killer acted with intent)
What does Causation consist of?
Factual and legal causation
When is causation considered in defendants AR
As murder is a ‘result’ crime, the main issue with actus reus is whether the act or omission causes the result (i.e. death)
It is an important issue in all ‘result’ crimes
Considers both factual and legal causation
What is factual causation
did the person commit the crime ‘but for’ their actions
What is legal causation
legal (did their action cause their death, above all other causes) causation must be proved
White case
‘In White, D put poison in his mother’s drink, yet she had a heart attack before she drank it
but for’ his act, she would still be dead
Pagett case?
> In Pagett, D held a girl in front of him as a human shield, firing at the police
the police fired back and she was killed
How is legal causation established/de minimus rule
For legal causation, D’s act must be more than minimal (de minimus rule)
What is de minimus rule based on
it is based on the chain of causation - there may be an intervening act which breaks this.
More than a ‘slight or trifling link’ (proposed in Kimsey)
D’s act must make a significant contribution (… Cheshire)
When is the chain of causation broken?
If something has occurred after the original act or omission, it may be argued that the chain of causation has been broken. For example if it is the victims own act then two questions arise
If chain of causation is broken by the victim what two questions arise
Does the ‘thin skull’/’eggshell’ rule apply? (see Blaue)
Was the victim’s act foreseeable (see Roberts and compare to Williams)
What is the thin skull rule
Thin skull rule is a legal principle stating that a defendant must take their victim as they find them.
> i.e. if V has a pre-existing condition or vulnerability that makes an injury more severe than expected, the defendant is still fully liable for the consequences.
Why does the thin skull rule apply
Because The original act may not kill but may cause the victim to require treatment and if this treatment causes death it has to be considered whether it breaks the chain or not
Ex smith (no) Jordan (yes)
Smith vs Jordan
see Smith (did not break the chain) and compare to Jordan (broke the chain of causation, due to ‘palpably wrong’ treatment)
What was established in the case of Jordan
Medical treatment will not usually break the chain unless it is ‘palpably wrong’
What was Cheshire case
The court held that as long as D’s act was a ‘significant and operative’ cause of death, it need not be the sole cause
Hospital treatment would only break the chain of causation if the jury decided that it…
‘was so independent of his acts, and in itself so potent in causing death, that they regard the contribution made by his acts as insignificant’
> It need not be the main cause but must be more than minimal (Shipman and Gnango)
What is Mens rea
the mental element of a crime, referring to D’s state of mind at the time of the offence.
What does mens rea determine
It determines whether D acted intentionally, recklessly or negligently, depending on the crime
(and the mental element of a crime, referring to D’s state of mind at the time of the offence.)
What is mens rea defined as in murder
Mens rea in murder is ‘malice aforethought’
What was established in the case of Mohan
In Mohan, the court held that this meant a decision to bring about a consequence (… putting a police officer on the hood of his car was intentional)
> ‘no matter whether the accused desired that consequence of his act or not’
Direct intent
where the consequences are desired - the main aim or purpose of D’s act
Oblique intent
where the consequences are not desired but virtually certain to occur
> DPP v Smith
HoL held that mens rea for murder is ‘intention to kill or cause GBH’
Also established objectives test
What is objectives test
‘would a reasonable person foresee death or GBH, and if so, intent could be inferred’
> s.8 criminal justice act provides the jury…
Intent must be based on what D actually foresaw, not just a reasonable person
So adding section 8 and Smith
Putting Smith and s.8 together, D must intend or foresee that death or serious injury will result
- Moloney
Hancock and Shankland have added to the law
What did the case of moloney establish
> Moloney argued that foresight of consequences is not the same as intent >They should ask ‘was death/GBH a natural consequence of D’s actions?’
What happened in hancock vs shankland using moloney as JP
In Hancock and Shankland, it was said that the reference in Moloney to ‘natural consequence’ was misleading
Following hancock and shankland what happened to the JP in nedrick
Attempt to clarify the law was made in Nedrick
> Jury could infer intent if they ‘feel sure that death or serious bodily harm was a virtual certainty (barring some unforeseen intervention) as a result of D’s actions and that the D appreciated that such was the case’
It introduced the VIRTUAL CERTAINTY TEST
What did nedrick establish?
Virtual certainty test
It was confirmed in woolin
For murder what 2 questions must the jury consider
> was death or serious injury a virtual certainty?
> did the defendant appreciate that such was the case?
This was refined from Nedrick : changed the word ‘infer’ to ‘find’ intent
If the answer to both is yes, the jury could ‘find’ (a change from ‘infer’) intent.
What other cases was the virtual certainty test used in
Matthews and Alleyne
Matthews and alleyne case
> CoA ruled that foresight of death as a virtual certainty does not automatically prove intent, it is merely evidence of intent for the jury to consider.
Co-incidence of actus reus and mens rea
> Actus rea and mens rea must coincide
- Actus reus may be treated as continuing
What case did mens rea and actus reus coincide
> Seen in Fagan (D argued that the mens rea (intentionally refusing to move) did not coincide with the actus reus (driving onto the policeman’s foot)
the court ruled once he knew the car was on the foot, the actus reus and mens rea coincided
And thabo meli case too
- Similar point seen in Thabo Meli(AR and MR coinciding )
> Actus reus was seen as a series of acts
When is it justified to kill in defense ?
Self-defence can act as justification for killing
> see Richard Osborn-Brooks (Hither Green) case
Causation and the three things that need to be established by defendant?
Where a consequence must be proved, the prosecution has to show that D’s conduct was:
> A factual cause,
> A legal cause,
> That there was no intervening act which broke the chain of causation.
One case that establishes causation?
‘But for’ what D did (White), would the result still have occurred
> if yes, then there is no causation/causation has been established
> if no, then.. Was the result reasonably foreseeable? (Pagett)
Did the victim suffer from a ‘thin skull’ (Blaue)-yes causation established
If no- were injuries excaberated by injury? Yes? - was treatment palpably wrong?(jordan) - if yes then no causation - if no causation established
Injuries in causation (continuing from that long flashcard )
Were the injuries exacerbated by self-neglect, or V’s own act?
Yes?- was it reasonably foreseeable (roberts)
If yes then causation established
If no then no causation (Williams)
Transferred malice meaning
Transferred malice is a phrase meaning transferred intent
What is transferred intent
a doctrine in both criminal and civil law, when the intention to harm one individual inadvertently causes a second person to be hurt instead
> Individual causing the harm will be seen as having ‘intended’ the act by means of the ‘transferred intent’ doctrine.
What are some cases with transferred malice?
e. in Mitchell, D was charged with manslaughter via transferred malice
Pembliton (1874) transferred malice what was established
it was established that transferred intent can only be established if it transfers the same harm (D threw a stone at a crowd and smashed a window by accident conviction quashed)
Letisha Shakespeare and Charlene Ellis case
> Innocent victims of a gang war standing too close to intended target
> Inside a vehicle, three attackers shot at a man they missed, killing the two girls and injuring another two
> Because of transferred malice, the attackers are guilty of murder even though they did not intend to kill the two girls.
What extended transferred malice and joint enterprise
Joint enterprise and transferred malice were expanded by the SC- gango
What is the AR for Murder
Actus reus for murder is the unlawful killing
What is the MR for murder
Mens rea for murder is intention to kill (express malice) or intention to cause GBH (implied malice)
What is expressed malice
the intention or desire to kill or cause GBH
What is implied malice
when D does not have direct intention to kill, yet still commits an act which recklessly disregards human life (i.e. GBH)
What is ‘oblique intent’
When death or killing was not D’s intent but in reaching their sim death or serious harm was caused
What is foresight of consequence
D may not have the mens rea for murder unless he foresaw that he would also cause death or serious injury (foresight of consequences)
Stone & Dobinson (omission, manslaughter)
Stone’s elderly sister came to live with the defendants. She eventually became bedridden and incapable of caring for herself. She died of malnutrition. Dobinson had, on at least one occasion, helped to care for her. Both were found guilty of manslaughter, as they both owed a duty of care to her (Stone as her brother, and Dobinson as they had helped previously)
Miller (omission, failure to act)
D was living in a squat they fell asleep while smoking, and their mattress was on fire. D did not attempt to put out the fire or summon help, and instead went into another room and went to sleep. The home caught fire. D was charged with arson. D was guilty as he had failed to take reasonable steps to deal with the fire.
Dytham (omission, failure to act)
D was a police officer on duty he saw a man (V) being thrown out of a nightclub, and subsequently, V was kicked by three men to death. D took no steps to intervene or summon help
Vickers (1957) (murder, actus reus/mens rea)
Vickers broke into a cellar of a local shop. He knew the old lady who ran the store was deaf. The old lady came into the cellar and saw Vickers. He then hit her several times with his fists and kicked her in the head. She died as a result of her injuries. This pointed out that if the defendant intends to inflict GBH and the victim dies, it should be sufficient in English law to imply ‘malice aforethought’.
A‑G’s Reference (No 3 of 1994) // Kevin Wilson (manslaughter, foetus’ rights around murder)
A man stabbed his pregnant girlfriend, causing her to give birth prematurely. The baby was born alive but later died due to complications from the premature birth. The House of Lords ruled that the defendant could not be guilty of murder as the foetus was not a legal person at the time of the attack. However, he was guilty of manslaughter due to his unlawful and dangerous act causing death. Moreover, this created the law around the ‘willful destruction of a foetus’, which also can hand out life sentences
Airedale NHS Trust v Bland (actus reus - duty of doctors)
Bland was a young man who was crushed at Hillsborough in 1989 he was in a PVS (vegetative state) and had been like this for three years
Doctors asked court to stop feeding him and court ruled that he could stop as it was in Blands best interest
Pagett (‘but for’, causation)
D took his pregnant girlfriend from her home by force and held her hostage. D came out, holding the girl in front of him, and fired at police. The police returned fire and the girl was killed by the bullets. D was convicted of manslaughter. He was guilty as the girl would not have died ‘but for’ him using her as a shield in the shoot-out.
White (‘but for’, causation)
D attempted to murder his mother via poison, but it was too weak; she later died of natural causes. The court held that D was not guilty, establishing a key principle of factual causation - the ‘but for’ test - showing that the defendant’s acts must actually cause the prohibited outcome.
Kimsey (causation)
D was involved in a high-speed car chase with a friend; she lost control and the other driver was immediately killed; the evidence was not very clear. The judge directed the jury that D’s driving did not have to be the ‘principal or substantial cause of the death’, ‘as long as you are sure it was a cause’; the CoA upheld D’s conviction of causing death by dangerous driving.
Cheshire (causation, medical treatment)
D shot the victim in the high and stomach; V needed major surgery, and developed breathing problems, and so was given a tracheotomy (to help him breath). V later died due to rare complications from the tracheotomy. Although the original wounds had virtually healed, D was still held liable for V’s death, as his acts significantly contributed to his death.
Blaue (causation, medical treatment)
D stabbed a young woman; she was told she needed a blood transfusion to save her life, but refused on religious grounds; she died and the defendant was convicted of her manslaughter; he was still guilty as he had to take his victim as he found her.
Williams (causation, s.47 OAPA)
The victim, a hitchhiker, jumped out of a moving car after the defendant attempted to rob him and was subsequently hit by oncoming traffic. The defendant was charged with assault under s.47 OAPA 1861, but the court held that the victim’s response was not foreseeable and thus broke the chain of causation, unlike in R v Roberts (1971), where the victim’s escape was deemed a natural consequence of the defendant’s actions.
Smith (causation, medical treatment)
Two soldiers fought and one was stabbed in the lung; the victim was dropped on the way to the hospital; artificial respiration at the hospital made the injury worse and he died. The poor treatment likely affected his chances of survival by as much as 75%. D was still guilty of his murder as the injury was a ‘substantial’ and ‘operating’ cause of death.
Jordan (causation, medical treatment)
V was stabbed in the stomach; after treatment in the hospital, wounds were healing. An antibiotic was administered which led to an allergic reaction, and later died due to another doctor ordering a larger dose (after the original doctor stopped the drug); the actions of the doctor were held to be an intervening act which caused the death, so D was not guilty.
Roberts (causation)
D sexually assaulted a young girl, and she jumped from a car to escape from it; she was injured from this. D was held to be liable for her injuries as ‘the reaction of V was the natural result of what D said and did’
Gibbins & Proctor (murder, intent)
Father of a seven-year-old girl lived with a partner; he and his partner deliberately kept the girl separate from other children (from an earlier marriage) and starved her to death. They were both convicted of murder, as the father had a duty to feed her (parent) and the partner had a duty to feed the child as she was held to have undertaken to look after the children. The failure to feed the girl was enough for the actus reus of murder.
Mohan (mens rea, intent)
D, while driving above the speed limit, was signalled by a police officer to stop; however, when the vehicle was about ten yards away, he accelerated and drove directly at the officer. On appeal, the court held that it is insufficient to show mere recklessness or that the harm was a likely consequence; the Crown must prove that the defendant intended the harm, regardless of whether he actually desired it. Consequently, his conviction on the attempted bodily harm count was quashed, clarifying that the mens rea for attempt requires a clear, specific decision to produce the harm.
DPP v Smith (oblique intent, foresight of consequences)
Smith was driving a car containing stolen goods and, when ordered to stop by a police constable, he accelerated instead, causing the constable, who was clinging to the car, to be thrown off and fatally injured by an oncoming vehicle. The House of Lords ruled that the objective test applied. Consequently, since a reasonable person in Smith’s position would have foreseen the fatal outcome, his actions were held to demonstrate the necessary oblique intent to kill, and his conviction for murder was reinstated.
Moloney (mens rea, intent)
D and his step-father had drunk a considerable amount of alcohol; they were heard talking and laughing after the party; after a shot, D called the police saying he had murdered his step-father. They were seeing who could load and fire a shotgun fastest. D’s step-father then said that D hadn’t got ‘the guts’ to pull the trigger’. D was convicted of murder, but this was quashed on appeal; HoL ruled that the foresight of consequences is only evidence of intention, and is not intention in itself.
Hancock and Shankland (mens rea, intent)
Ds were miners on strike; they tried to prevent a miner from going to work by pushing concrete from a bridge on the road he was being driven to work; the block struck the windscreen and killed the driver; the judge used the Moloney guidelines to direct the jury, and Ds were convicted of murder. On appeal, the CoA and HoL quashed their conviction.
Nedrick (mens rea, intent)
D had a grudge against a woman, so poured paraffin through her letter box and set it alight. A child died in the fire. D was convicted of murder but CoA quashed the conviction and substituted one of manslaughter; to make the law decided in Moloney, Hancock and Nedrick easier, they suggested two questions for a jury to ask themselves.
> How probable was the consequence which resulted from D’s voluntary act?
> Did D foresee that consequence?
Woollin (oblique intent, virtual certainty, provocation)
Woollin threw his three‑month‑old son onto a hard surface resulting in the baby’s death. The House of Lords held that a defendant can be found to have the necessary mens rea for murder if the jury is sure that death or grievous bodily harm was a virtual certainty (barring some unforeseen intervention) as a consequence of the defendant’s actions and that the defendant himself appreciated this. This “virtual certainty” test narrows the broader “substantial risk” standard previously applied. He was given manslaughter, as the old law on provocation (Homicide Act 1957) did not cover a lot of ground. The updated Coroners and Justice Act 2009 has updated the law on provocation, stating that a person must be similar to you, and the person must be doing the provocation on purpose.
Matthews and Alleyne (mens rea, virtual certainty)
Ds dropped V 25 feet from a bridge, into the middle of a deep river. V told them he couldn’t swim. V drowned. The CoA upheld the original conviction of murder as the jury were sure that the Ds appreciated the virtual certainty of death, did not attempt to save V, had no intention of saving V; impossible to see how the jury could not have found that the Ds intended V to die.
Fagan (coincidence of actus reus mens rea)
Fagan was told by a police officer to park by a curb, and accidentally drove onto the officer’s foot; once realising, he refused to move it, and only moved after several times of asking. Fagan was found guilty of assaulting the officer in the execution of his duty. The CoA held that once Fagan knew that car was on the officer’s foot, he had the required mens rea. Moreover, the actus reus was a continuing act, as, so long as the defendant developed the mens rea at some time while the act was continuing, he could be guilty.
Thabo Meli (coincidence of actus reus mens rea)
Ds attacked a man and believed they had killed him; they then pushed his body over a small cliff. The man had in fact survived the attack but died of exposure when unconscious at the foot of the cliff. Ds were found guilty of murder.
R v Gnango (transferred malice)
A and B were in a shootout. B accidentally shot C (an innocent passerby) and killed her. B fled and wasn’t caught, but A was. A was tried and convicted of her murder. CoA quashed the conviction but the Supreme Court reinstated it, and held that he was guilty of the murder, as engaging in a shootout meant that he was both attempting to murder B and aiding B’s attempt to murder him. A was guilty of the murder under the principle of transferred malice.
Richard Osborn-Brooks // Hither Green (self defence)
Richard Osborn-Brooks was a homeowner who fatally stabbed an intruder, Henry Vincent, during a burglary at his home in Hither Green; raised significant legal and public debate about self-defence; Osborn-Brooks was initially arrested on suspicion of murder but was later released without charge after the CPS determined he had acted in lawful self-defence.
Pembilton (transferred malice, intention)
D threw a stone intending to hit people but instead smashed a window. He was convicted of criminal damage, but the court quashed the conviction, ruling that transferred malice did not apply because his intent was to harm people, not property. This case established that malice cannot transfer between different types of offences.
Shipman (gross negligence manslaughter, breach of duty)
Shipman, a doctor, was found guilty of murdering at least 15 patients (but suspected of killing over 200) by administering lethal doses of diamorphine. His conviction was based on gross negligence manslaughter, as he breached his duty of care by deliberately overdosing patients, leading to their deaths. The case reinforced the importance of medical ethics and patient safety and led to changes in the regulation of medical practices in the UK.
Mitchell (transferred malice, intent)
D was involved in an incident at a Post Office. While attempting to force his way to the front of the queue, he got into an altercation with another man. During the scuffle, he pushed the man, who then fell and accidentally collided with an elderly lady. The injuries sustained by the lady eventually led to her death. Although the defendant did not direct his actions at the elderly lady, the court held that his intention to commit an unlawful act could transfer to her—this is known as transferred malice. Consequently, he was convicted of manslaughter.
Actus reus
The physical element of a crime, which can be an act, omission, or state of affairs.
Mens rea
The mental element of a crime, such as intention or recklessness.
Murder
The unlawful killing of a human being under the Queen’s peace with malice aforethought.
Omission
A failure to act when there is a legal duty to do so, which can result in criminal liability.
Manslaughter
An unlawful killing without the intent required for murder, either voluntary (with intent but with mitigating circumstances) or involuntary (without intent).
GBH
Grievous bodily harm—serious physical injury, covered under Sections 18 and 20 of the Offences Against the Person Act 1861.
Consequences
The results of a defendant’s actions, which may be required to establish liability in certain offences.
Causation
The link between the defendant’s act and the consequence, necessary to establish liability.
Legal causation
The requirement that the defendant’s act must be a significant cause of the consequence, without any intervening acts breaking the chain of causation.
Factual causation
Determined by the ‘but for’ test—whether the consequence would have happened ‘but for’ the defendant’s act.
‘Thin skull’ rule
The principle that the defendant must take their victim as they find them, even if they have a pre-existing condition that makes the harm worse.
Intervening acts
Events that occur after the defendant’s act and may break the chain of causation, removing liability.
Direct intent
Where the defendant intends the specific result of their actions.
Oblique intent
Where the defendant does not directly intend the outcome but foresees it as a virtual certainty.
Objective test
A legal test based on what a reasonable person would have thought or done in the same situation.
Foresight of consequences
Where the defendant foresees that their actions may cause a certain result, relevant in determining intent.
Virtual certainty test
A test used to establish oblique intent, asking whether the defendant foresaw the outcome as a virtual certainty.
‘But for’ test
A test for factual causation, asking whether the consequence would have occurred ‘but for’ the defendant’s actions.
Continuing act
A situation where the actus reus is stretched over time, allowing mens rea to coincide later for liability.
Chain of causation
The unbroken link between the defendant’s actions and the consequence, required for legal liability.
Transferred malice
Where the defendant intends to harm one person but accidentally harms another, and the intent is transferred.
Joint enterprise
A legal doctrine where all participants in a crime can be held liable for actions taken by any member of the group.
Express malice
Direct intention to kill, satisfying the mens rea for murder.
Implied malice
Intention to cause grievous bodily harm, which is sufficient for murder under English law.
