General Elements Of Liability - AR, MR, TM, CR, SL

Question 1

What is the actus reus?

Answer 1

The actus reus is the physical element of a crime. Three things can form the actus reus:
1. a state of affairs
2. a voluntary act
3. an omission.

Question 2

Conduct and consequence crimes

Answer 2

Some crimes do not require any consequence to be proven, only that you did something. These are known as “conduct crimes”. Other crimes require that the prohibited conduct results in something. These are known as “consequence crimes”.
For example:
- S47 assault occasioning actual bodily harm.

Question 3

State of affairs

Answer 3

In other crimes the actus reus can be a state of affairs for which the defendant is responsible.

Question 4

Voluntary Acts

Answer 4

The actus reus must be voluntary. If someone does not have control over their actions (an involuntary act) then they cannot be guilty of the offence (Hill v Baxter).

There are rare instances where a defendant has been convicted even though they did not act voluntarily. These situations involve a ‘state of affairs’, but not one where the defendant acted voluntarily (R v Larsonneur).

Question 5

Omissions

Answer 5

• An omission is a failure to act.
• The normal rule is: an omission cannot make a person guilty of an offence.
• HOWEVER, there are exceptions to the rule that failing to act cannot make a person quilty of an offence.
  This is where you have a duty to act under statutory or common law.

Question 6

Duty to act under statutory law

Answer 6

These can make it an offence not to do a certain thing (The Road Traffic Act 1988).

Question 7

Duty to act under common law

Answer 7

5 ways a duty to act exists under common law (meaning you will be guilty if you fail to act).

1) A contractual duty (Pittwood)
2) A duty because of a relationship (Gibbons and Proctor)
3) A duty which has been taken on voluntarily (Stone and Dobinson)
4) A duty through one’s official position (Dytham)
5) A duty which arises because the defendant has set in motion a chain of events (Miller)

Question 8

Omissions and the duty of doctors

Answer 8

Doctors sometimes have to stop the treatment of patients. 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)

Question 9

Actus Reus and Rules of Causation

Answer 9

• For consequence crimes, the prosecution has to prove that the defendant caused the consequence.
• Sometimes there is no issue and it is clear that this was so, other times it may not be as clear.
• For the defendant (D) to be guilty the prosecution must prove: factual and legal causation.

Question 10

Factual Causation

Answer 10

D must be the factual cause. This is proven using the ‘but for’ test: “the consequence would not have happened ‘but for’ the defendants conduct.

The following case shows where the victim would not have died but for the D’s actions (Pagett).

The following case shows where the victim DID NOT die ‘but for the D’s actions and so was not guilty (White).

Question 11

Legal Causation

Answer 11

• D must also be the legal cause. This is proven if the D’s actions were the ‘operative and substantial’ cause of harm.
• If the end result was a reasonably foreseeable consequence of the D’s actions this is satisfied.
• For D’s actions to be the operative and substantial cause there must be no break in the chain of causation.

Question 12

Multiple causes

Answer 12

Where there is more than one act contributing to the consequence the defendant can be guilty if his conduct was “more than a slight or trieling link” (Kimsey).

Question 13

Intervening acts

Answer 13

• Intervening acts can break the chain meaning that the D’s actions would not be the operative and substantial cause and so not responsible for the injury/death.
• Acts of the victim will not break the chain if they are reasonably foreseable (Roberts).
• Acts of a third party will break the chain if they overwhelm those of the defendant and render them insignificant’ (Cheshire).
• Where D’s conduct causes a foreseeable action by a third party, then the D is likely to be held to have caused the result.
• An act of a third party includes medical treatement which will only break the chain if it is palpably wrong.
  (Jordan)
• In this case the treatment broke the chain because it was ‘palpably wrong’.
• The following case shows where medical treatment DID NOT BREAK THE CHAIN (Smith).
• The medical treatment did not break the chain because the original wound was still the OPERATIVE AND SUBSTANTIAL CAUSE OF DEATH.
• Switching off a life support machine by a doctor when it is decided that the victim is brain dead does not break the chain (Malcherek).

An act of God
- A natural but unpredictable event will break the chain of causation e.g. an earthquake. Ordinary weather conditions will not suffice as these are seen as natural / normal events e.g. a falling tree or a lightning strike.

The ‘Thin Skull Rule’
- This rule means that “you take your victim as you find them”.
- If someone has a pre-existing medical condition, or holds certain beliefs which make the injury worse the chain will not be broken and D will still be the operative and substantial cause (Blaue).

Question 14

Mens rea

Answer 14

Mens rea is the mental element of a crime.

Two levels of mens rea:
The highest level: intention
The lowest level: recklessness

Question 15

Intention

Answer 15

2 types of intention:
Direct intention - as taking a decision to bring about a certain consequence (Mohan).

Oblique Intention - when the defendants aim is to do something different to the actual consequence.
If the 2 part test laid out in Woollin (1998) is satisfied then the jury can use this as evidence of intention and can find the defendant guilty:
1) harm caused as a result of the defendants actions was a virtual certainty.
2) and the defendant realised it was virtual certainty.

Question 16

Recklessness

Answer 16

This is when the defendant “foresees a risk but takes it anyway”.
(Cunnningham)

Question 17

Transferred Malice

Answer 17

Under the rule of transferred malice, if the intended victim is not the actual victim D can still be guilty as the intention (malice) transfers.

For intention to transfer the crimes must be the same or similar (Latimer).

Where the mens rea is for a completely different type of offence, then the intention will not transfers (Pembliton).

Question 18

The Contemporaneity Rule

Answer 18

The contemporaneity rule means that in order for an offence to be committed: “actus reas and mens reas must occur at the same time”.

The rule can be satisfied if the actus reus was continuing when the defendant acquired the mens rea: Fagan v Metropolitan Police Commissioner (MC).

If the actus reus and mens rea occur at separate times, but they are linked by a series of acts/events then this will also satisfy the rule: (Thabo Meli).

Question 19

Strict Liability

Answer 19

Strict liability offences are: no need to prove intention, or negligence.

• For all offences there is a presumption that mens rea is required, but if they decide that that the offence does not require mens rea for at least part of the actus reus then the offence is one of strict liability.
• For nearly all strict liability offences it must be proved that the defendant did the relevant acts reus and that it was committed voluntarily unless the offence is one of absolute liability.
• Absolute liability offences are: no mens rea required for the offence nor does the actus reus have to be voluntary. They involve ‘status offences’ where the offence is a ‘state of affairs’.
• These types of offences are very rare and to be an absolute liability offence the following conditions must apply:
• The offence does not require any mens rea and
• There is no need to prove that the defendant’s actus reus was voluntary (Larsonneur).

No Fault: lf a voluntary consequence act caused a prohibited consequence D can still be convicted (Callow v Tillstone).

For some offences, the statute may provide a defence of due dillgence: if D can show that he has done all he can not to commit the offence then he won’t be liable. But this defence is not applied consistently (Harrow LBC v Shah and Shah).

Question 20

Strict liability at common law

Answer 20

Strict liability is very rare in common law. Only three existing common law offences are ones of strict liability. These are public nuisance, criminal libel and outraging public decency.

Question 21

Strict liability at statute law

Answer 21

Over half of all statutory offences are ones of strict liability. They are mostly regulatory in nature and involve matters such as:
- regulating sales of foods, alcohol, and gaming tickets
- prevention of pollution
- the safe use of vehicles

It is presumed that all criminal offences require mens rea: If a statute includes words such as knowingly, ‘intentionally or ‘maliciously. For example, the statute makes it clear that mens rea is required and it is not an offence of strict liability. If a statute makes it clear that intention is not required then the offence will be one of strict liability.
BUT often the Act is unclear and it will not contain any words indicating mens rea. Where this is the case the judge will start with presuming that all criminal offences require mens rea (Sweet v Parsley).

Question 22

The Gammon Tests

Answer 22

The Gammon Tests: In Gammon (Hong Kong) Ltd v Attorney General of Hong Kong (1984) the court gave four factors that should be considered:
1. The presumption should only be displaced if the words in the statute imply that they should
2. The presumption is particularly strong if the offence is truly criminal in character
3. The presumption can be displaced if the statute is concerned with an issue of social concern or public safety
4. Strict liability should only apply if it is will help enforce the law by encouraging greater vigilance to prevent the commission of the prohibited act

Question 23

Quasi-criminal offences

Answer 23

Quasi-criminal offences: These are offences which are regulatory in nature and are not thought of ‘truly criminal in character’. They affect large areas of everyday life and include offences such as breaches of regulations in a variety of fields such as selling lottery tickets or preventing pollution.

Question 24

Issues of social concern

Answer 24

Issues of social concern: Where the offence involves potential danger to public health, safety or morals then it is more likely to be held a strict liability offence

Reasons for strict liability offences:
- policy: It helps to protect the public as many statutory offences are aimed at protecting the public. The risks of such danger are thought to outweigh the individuals rights.
- Social utility: SL helps to protect society by regulating activities which have potential to endanger public health, safety or morals. Making an offence one of SL promotes greater care and encourages higher standards in matters such as hygiene in processing and selling food. It makes sure businesses are run properly.
- They are easier to enforce as there is no need to prove MR.
- It saves court time as people are more likely to plead guilty
- Parliament can provide ‘due diligence’ where it is felt appropriate.
- Lack of blameworthiness can be taken into account when sentencing.

Arguments against strict liability:
- It imposes liability on people who are not blameworthy.
- Those who are unaware of risks may be guilty.
- There is no evidence that it improves standards.