Module 11 - General elements of criminal liability and murder Flashcards

Question

What is the 'but for' test?

Answer 1

A test for factual causation, asking whether the consequence would have occurred ‘but for’ the defendant’s actions.

Answer 2

For legal causation, D’s act must be more than minimal (de minimus rule); 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)

Answer 3

"More than a slight or trifling link" (legal causation)

Answer 4

D shot the victim in the 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.

Answer 5

Cheshire > 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)

Answer 6

It may be argued that the chain of causation has been broken

Answer 7

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.

Answer 8

The unbroken link between the defendant’s actions and the consequence, required for legal liability.

Answer 9

If it is the victim’s own act, then two questions arise > Does the ‘thin skull’/’eggshell’ rule apply? (see Blaue) > Was the victim’s act foreseeable (see Roberts and compare to Williams)

Answer 10

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.

Answer 11

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.

Answer 12

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’

Answer 13

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.

Answer 14

The original act may not kill but may cause the victim to require treatment > If this treatment then causes death, it has to be decided if it breaks the chain of causation > see Smith (did not break the chain) and compare to Jordan (broke the chain of causation, due to ‘palpably wrong’ treatment) > Medical treatment will not usually break the chain unless it is ‘palpably wrong’

Answer 15

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.

Answer 16

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.

Answer 17

Events that occur after the defendant’s act and may break the chain of causation, removing liability.

Answer 18

Shipman, a doctor, was found guilty of murdering at least 15 patients (but suspected of killing over 200) by administering lethal doses of diamorphine.

Answer 19

Mens rea is the mental element of a crime, referring to D’s state of mind at the time of the offence.

Answer 20

It determines whether D acted intentionally, recklessly or negligently, depending on the crime

Answer 21

Mens rea in murder is ‘malice aforethought’

Answer 22

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.

Answer 23

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’

Answer 24

Where the consequences are desired - the main aim or purpose of D’s act

Answer 25

Where the consequences are not desired but virtually certain to occur

Answer 26

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. His conviction for murder was reinstated.

Answer 27

HoL held that mens rea for murder is ‘intention to kill or cause GBH’; described GBH as ‘really serious harm’ (has since been held that the word ‘really’ is unnecessary; just ‘serious harm) > Established the ‘objective test’ (would a reasonable person foresee death or GBH, and if so, intent could be inferred)

Answer 28

> s.8 provides the jury… ‘shall not be bound in law to infer that D intended or foresaw a result of his actions by reason only of its being a natural and probable consequence of those actions but.. shall decide whether he did intend or foresee that result by reference to all the evidence, drawing such inferences from the evidence as appear proper in the circumstances’ > Intent must be based on what D actually foresaw, not just a reasonable person

Answer 29

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.

Answer 30

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?’

Answer 31

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.

Answer 32

In Hancock and Shankland, it was said that the reference in Moloney to ‘natural consequence’ was misleading. > Attempt to clarify the law was made in Nedrick

Answer 33

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.

Answer 34

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’ > Nedrick introduced the ‘virtual certainty’ test

Answer 35

Woollin threw his three‑month‑old son onto a hard surface resulting in the baby’s death. > 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.

Answer 36

The approach made in Nedrick was confirmed in Woollin (1998); for murder, the jury must consider two questions > was death or serious injury a virtual certainty? > did the defendant appreciate that such was the case? - Refined Nedrick; changed the word ‘infer’ to ‘find’ intent

Answer 37

1. Was death or serious injury a virtual certainty? 2. Did the defendant appreciate that such was the case? If the answer to both is yes, the jury could ‘find’ (Woollin) (a change from ‘infer’ in Nedrick) intent.

Answer 38

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.

Answer 39

The ‘virtual certainty’ test was followed in Matthews and Alleyne > 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.

Answer 40

Where the defendant foresees that their actions may cause a certain result, relevant in determining intent.

Answer 41

Co-incidence of actus reus and mens rea > Actus rea and mens rea must coincide - Actus reus may be treated as continuing > Seen in Fagan > Similar point seen in Thabo Meli

Answer 42

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.

Answer 43

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.

Answer 44

Transferred malice is a phrase meaning transferred intent - Transferred intent is 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.

Answer 45

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.

Answer 46

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.

Answer 47

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.

Answer 48

A legal doctrine where all participants in a crime can be held liable for actions taken by any member of the group.

Answer 49

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.

Answer 50

Joint enterprise and transferred malice were expanded by the Supreme Court.

Answer 51

Actus reus for murder is the unlawful killing Mens rea for murder is intention to kill (express malice) or intention to cause GBH (implied malice)

Answer 52

Express malice is the intention or desire to kill or cause GBH

Answer 53

Implied malice is when D does not have direct intention to kill, yet still commits an act which recklessly disregards human life (i.e. GBH)

Answer 54

Proving intention can be difficult if D’s main aim was not the death of V > However, in achieving this aim, death or serious harm was caused > This is referred to as ‘oblique intent’

Module 11 - General elements of criminal liability and murder Flashcards

Includes actus reus, mens rea, causation, transferred malice and murder.