General Principles of Criminal Liability

Question 1

WHAT DOES CRIMINAL LIABILITY CONSIST OF?

Answer 1

1. The actus reus
2. The mens rea
3. The absence of any defence

Question 2

WHAT IS THE NATURE OF THE ACTUS REUS

Answer 2

THE GUILTY ACT

The actus reus is the conduct element of the crime and will consist of all the physical things the prosecution will need to prove.

The actus reus consists of three elements and to be found guilty, the defendant must have committed all three elements

Question 3

WHAT IS THE FIRST ELEMENT OF THE ACTUS REUS

Answer 3

CONDUCT.

This element can be divided into Acts and Omissions

Question 4

IN RESPECT OF CONDUCT, WHAT IS AN ACT?

Answer 4

The defendant must have engaged in some act i.e. shooting the victim

Question 5

IN RESPECT OF CONDUCT, WHAT IS AN OMISSION

Answer 5

The defendant had failed to act.

Question 6

WHAT ARE THE TWO CIRCUMSTANCES IN WHICH AN OMISSION CAN BE THE BASIS OF A CRIMINAL CHARGE?

Answer 6

1. The definition of a crime makes it clear an omission will suffice
2. The defendant has a duty to act but fails to do so:
   - Special Relationship [Gibbins & Proctor (1989)]
   - Contractual duty [Pittwood (1902)]
   - Voluntary assumption of responsibility [Stone & Dobson [1902)]
   - The creation of a dangerous situation [Miller (1983)]
   - A public office [Dytham (1979)]

Question 7

WHAT IS THE SECOND ELEMENT OF THE ACTUS REUS?

Answer 7

CIRCUMSTANCES

This element describes the parts of the actus reus that is neither the conduct or the circumstances.

Question 8

WHAT IS THE THIRD ELEMENT OF THE ACTUS REUS?

Answer 8

CONSEQUENCES

Some crimes have a particular consequence i.e there is no crime of homicide unless the victim has died.

The prosecution must proved that the defendant caused the consequence of the crime.

Question 9

WHAT IS CAUSATION?

Answer 9

The establishment by the prosecution of a connection between the defendants conduct and the consequence of the crime.

Question 10

IN TERMS OF CAUSATION, WHAT MUST THE PROSECUTION PROVE?

Answer 10

That defendants conduct was both a:

1. Cause in fact - the consequence would not have happened but for the defendants conduct
2. Cause in law - the defendants conduct made a significant contribution to the consequence

Question 11

WHAT IS FACTUAL CAUSATION?

Answer 11

Whether the consequence would have occurred ‘but for’ the conduct of the defendant:

If YES - factual causation is not established
If NO - factual causation is established

Question 12

WHAT IS THE TEST FOR FACTUAL CAUSATION?

Answer 12

The ‘but for’ test as established in White [1910]

Question 13

WHAT IS LEGAL CAUSATION?

Answer 13

The following points are important in understanding the approach adopted by the courts:

1. The defendants conduct was more than a trivial cause for the consequence
2. The defendants conduct may not be the sole cause of the consequence
3. If injuries inflicted by the defendant make a significant contribution to the
   consequence,
   then the defendant causes that consequence [Smith (1959)]
4. Where it is alleged that there are intervening acts or events, it may be important
   to establish whether those acts or events were a reasonably foreseeable
   consequence of the defendants conduct – [Pagett (1983)]

Question 14

WHAT IS THE NATURE OF THE MENS REA?

Answer 14

THE GUILTY MIND

The mens rea refers to the state(s) of mind that the prosecution has to prove the defendant possessed at the time of the offence.

Question 15

WHAT ARE THE COMMON TYPES OF MENS REA?

Answer 15

Intention and recklessness

Question 16

WHAT IS INTENTION?

Answer 16

Intention can be defined in two ways:

1. Direct intention - where the result is the defendants aim or purpose [Moloney (1985)]
2. Indirect intention - where the result is NOT the defendants aim or purpose but is virtually
   certain to occur if the defendant succeeds in achieving their primary aim or purpose and
   the defendant foresees that the eventual result is virtually certain – ref Nedrick [1986] &
   Woollin [1998]

Question 17

WHAT IS RECKLESSNESS?

Answer 17

Where the defendant ignores a known risk or deliberately refrains from making further enquiries due to what they expect they may discover will probably be sufficient to establish recklessness [Cunningham (1957)]

G and Another [2003] confirmed that recklessness is only subjective. The House of Lords stated that a person acts recklessly with respect of:

• A circumstance when they were aware of a risk that existed or would exist; and
• A result when they were aware of a risk that it could occur.

Question 18

WHAT IS THE DOCTRINE OF TRANSFERRED MALICE?

Answer 18

This is a principle that can be applied to both intention and recklessness.

For example:
The defendant intends to inflict serious injury on X but unintentionally inflicts this injury on the victim.

Provided that the actus reus is that of the crime that is intended against X, the defendants mens rea in respect of X can be transferred to the actus reus against the victim – the prosecution is not required to prove that the defendant had a separate intention against the victim – ref Latimer [1886] & Mitchell [1983]

The defendant muse cause the actus reus for the crime in which they have the mens rea.

Question 19

WHAT IS MEANT BY THE COINCIDENCE OF THE ACTUS REUS AND MENS REA?

Answer 19

The actus reus and mens rea must be present at the same time if the defendant is to be guilty of an offence.

Where the actus reus is instantaneous and complete, the defendant must possess the mens rea at that very moment

Where the actus reus is ongoing, the defendant must possess the mens rea at some point (Fagan v Metropolitan Police Commissioner (1968)].

Question 20

WHAT ARE STRICT LIABILITY OFFENCES?

Answer 20

Offences that are predominantly statutory in origin and do not require proof of the mens rea in relation to at least one element of the actus reus. Strict Liability offences deal with activities such as:

• Causing pollution and general damage to the environment
• Adulterating food and drink
• Breaching health and safety regulations

Question 21

WHAT ARE SOME JUSTIFICATIONS OF STRICT LIABILITY OFFENCES?

Answer 21

1. The existence of the offences forces people to comply with rules and regulations
2. The minor nature of the majority of these offence means little stigma is attached
3. The importance of protecting the public outweighs the usual requirement of proof of the
   defendants mens rea

Question 22

WHAT ARE EXAMPLES OF POTENTIAL BREAKS IN CAUSATION?

Answer 22

1. Refusal of treatment and/or aggravation of injuries by the victim
   
   • Blaue [1976] - if the defendant injures the victim, but the victim makes them worse by
     neglect or maltreatment, the defendant causes the whole of the injuries.
2. The especially susceptible victim
   
   • If because of some special weakness in the victim, the defendant causes greater injuries
     than would normally have been expected, the defendant will be responsible for all of the
     injuries (or the death of the victim)
3. Injuries resulting in the victim trying to escape
   
   • Corbett [1996] - if the victim tries to escape from an attack by the defendant and in doing
     so suffers injury, the defendant causes the injuries if the victims actions were reasonably
     foreseeable.
4. Negligent, poor or inappropriate medical treatment
   
   • Generally, this does NOT break the chain of causation.