topic 1

Question 1

What is the difference between civil and criminal law

Answer 1

The same action can be both a civil wrong (often a tort) and a criminal offence.

Crime is seen as a public wrong (in the example above, the public interest lies in the prevention of such actions), whereas a civil wrong is a private matter to be resolved between the parties.

Question 2

To what standard do crimes need to be proved?

Answer 2

‘beyond reasonable doubt’

Question 3

Criminal liability =

Answer 3

Actus reus + Mens rea + Absence of a valid defence

Question 4

Types of Actus reus

Answer 4

Conduct offences: In some cases, offences will only require certain acts to have been committed by the defendant to satisfy the actus reus.

Result offences: The actus reus of result crimes requires more than just the defendant’s action. Here, the action must lead to a specified consequence. In such cases, it must be proved that the action actually caused the result.

Offences with surrounding circumstances: The actus reus can also include the need for some particular surrounding circumstance. Under s 1(1) Theft Act 1968, the actus reus of theft is defined as the appropriation of property ‘belonging to another’. The surrounding circumstance the prosecution must prove is that the property belonged to someone other than the thief.

Omissions: A defendant can be held to have committed the actus reus of an offence despite taking no action at all. Although the general rule that there is no liability for failure to act, the criminal law will, in certain circumstances, impose a legal obligation to act which if breached could result in criminal liability.

Question 5

Actus reus: Causation - result crimes

Answer 5

Result crimes require that the defendant’s conduct cause a particular result. Result crimes include murder, manslaughter, criminal damage, and assault occasioning actual bodily harm. Causation is part of the actus reus of these types of offences.

Question 6

two aspects to causation

Answer 6

There are two aspects to causation, both of which must be proved by the prosecution:
* Factual causation: The jury must be satisfied that the acts or omissions of the accused were in fact the cause of the relevant consequence.
* Legal causation: It must be established that the acts or omissions of the accused were a legal cause of that consequence.

Question 7

Factual causation: the but for test

Answer 7

Factually, it must be proved that ‘but for’ the acts or omissions of the accused, the relevant consequence would not have occurred in the way that it did (R v White [1910] 2 KB 124).
In other words, if you eliminate the act of the defendant would the prohibited harm have occurred anyway?

Question 8

Legal causation test

Answer 8

The law will step in to prevent a person from being responsible for all acts that arise from their actions.

The key legal causation principles are:
* The defendant’s act must be the ‘substantial’ cause of the prohibited harm (R v Hughes).
* The consequence must be caused by the defendant’s culpable act (R v Dalloway).
* The defendant’s act need not be the only cause of the prohibited consequence (R v Benge).

Question 9

Legal causation: Intervening acts

Answer 9

A novus actus interveniens is a subsequent event or act of either the victim or a third party which renders the defendant’s part in the consequence very small, breaking the chain of causation and meaning that the defendant is not criminally liable.

Question 10

Legal causation: intervening acts - three types to consider

Answer 10

‘Fright and flight’:
When under attack or the threat of attack from the defendant, it is plausible to consider that the victim may attempt to escape from the attack or threat. However, it has been necessary for the law to consider when such escape attempts can amount to a novus actus interveniens. The issue falls around the question as to whether the escape was foreseeable by the reasonable person. If it is not, then the defendant is entitled to an acquittal and is no longer deemed to be the legal cause of the prohibited result.

Refusing medical treatment:
The courts have also considered what the position would be where the victim refuses medical treatment, which results in their death. Three key cases: R v Blaue, R v Holland, R v Dear

Suicide:
The victim’s suicide may not break the chain of causation if:
- V nonetheless dies from the original wound (R v Dear); or
- The act was reasonably foreseeable eg where the defendant causes a brilliant pianist to lose her fingers, or a keen sportsman to be paralysed (applying the rule in R v Roberts and R v Williams and Davies); or
- The D’s unlawful act was a significant and operating cause of death and at the time of the attack it was reasonably foreseeable that the victim would die by suicide as a result of V’s injuries (R v Wallace).
- The victim’s suicide may break the chain of causation if:
- The injuries inflicted by the defendant have healed, but the victim goes on to die by suicide (distinguishing R v Dear); or
- It was a voluntary and informed decision of the victim to act (R v Kennedy). In this case, Kennedy supplied a dose of heroin in a syringe, which he handed to the victim, who injected himself, and almost immediately suffered an adverse reaction. The victim later died of the consequences of intoxication by opiates and alcohol. The House of Lords decided that a person who supplies a drug to another has not caused that drug to be administered when the other injects it.

Natural events:
- Natural events will only break the chain of causation if they are ‘extraordinary’ and not reasonably foreseeable.
- For example, if D knocks V unconscious and leaves V on the beach then V is drowned by the incoming tide, D has legally caused V’s death. The natural event of the tide coming in is reasonably foreseeable.

Question 11

thin skull rule

Answer 11

The ‘thin skull’ rule provides that a person who inflicts harm on another cannot escape liability if the victim, owing to some pre-existing infirmity or peculiarity, suffers greater harm than would have been expected as a result of what the accused has done. Put simply, the defendant must take the victim as they find them.

Question 12

Result crimes =

Answer 12

Factual causation + Legal causation

Question 13

Omissions - the general rule

Answer 13

The general rule is that a defendant cannot be criminally liable for a failure to act, as there is no general duty to act to prevent harm

BUT

In order to secure a conviction based upon a failure to act, the prosecution must prove that:
(a) The crime is one which is capable of being committed by an omission. Some offences can only be committed by an act, eg unlawful act manslaughter (R v Lowe);
(b) The accused was under a legal duty to act;
(c) The accused breached that duty;
(d) The breach caused the actus reus of the offence to occur; and
(e) Should the offence so require, that the accused had the required mens rea.

Question 14

Situations where a duty to act may arise

Answer 14

Statutory duty - Under statutes, innumerable offences can be committed by an omission

Special relationship - e.g. Doctors and patients, Parents and their children, Spouses

Voluntary assumption of a duty of care - A person is not generally under a duty to care for another in distress. However, if a person voluntarily assumes a duty towards another, the law will hold that person liable if they fail to carry out that duty.

A breach of a contractual duty

Defendant creates a dangerous situation - e.g. if you start a fire in the house you should take reasonable steps to put it out

Public office holders

Question 15

Omissions and causation

Answer 15

• The relationship between omissions and causation in this context means that if the defendant had acted, D could have made a causal difference.
• The defendant cannot cause by omission.
• The defendant can fail to uncause when D has a duty to uncause, but this is different to causing.

Question 16

mens rea meaning

Answer 16

‘Mens rea’ means ‘guilty mind’. Most offences require that the defendant not only commits the act, but also in some way has a ‘guilty mind’.

The state of mind that the prosecution must prove to secure a conviction will vary from crime to crime.

Question 17

Intention

Answer 17

There are two types of intention:
* Direct intention: The aim or purpose of the defendant’s act (R v Moloney); and
* Indirect/oblique intention: Used in rare cases where the defendant does something manifestly dangerous and someone dies or is seriously injured but that was not the primary aim of the defendant

Question 18

Recklessness

Answer 18

Recklessness occurs when somebody takes an unjustifiable risk, aware of the danger that the prohibited harm may occur upon taking that risk.
More often, the defendant can be convicted, either if D intended the result, or if D was reckless as to whether the result should occur. This is a position, for example, with the offence of criminal damage.
Some offences use other words when defining the mens rea needed such as the word ‘maliciously’. This has been held to allow for the actus reus to be committed intentionally or in the alternative, recklessly such as s 20 Offences Against the Person Act 1861.

Question 19

Knowledge and belief

Answer 19

Under s 22 Theft Act 1968, a person is guilty of handling stolen goods if, ‘knowing or believing them to be stolen’, that person receives the goods.
These words have been held to allow for the defendant who is absolutely certain as to the existence of a particular circumstance, or is at least possibly aware that the particular circumstance exists.

Question 20

Dishonesty

Answer 20

In common with most offences under the Theft Act 1968, the defendant must also be found to have been dishonest when handling the goods. This word is not actually defined in the Act.
However, the Supreme Court considered this requirement in the case of Ivey v Genting Casinos [2017] UKSC 67, and a workable test was set out.

Question 21

Negligence

Answer 21

Negligence is when the defendant’s actions fall below the standard of a reasonable person. Although negligence is of great importance in civil law, it does not feature prominently in the criminal law. There are a number of statutory offences in which negligence is the basis of liability, and perhaps the best known of these is careless driving. Some criminal law offences have negligence as an element of mens rea, gross negligence manslaughter for example. Here, the negligence must be gross.

Question 22

The test for oblique intent

Answer 22

If a defendant’s purpose in acting is not to produce the actus reus of the crime with which D has been charged and intention is the only type of mens rea available, D may still be found to have an intention to commit that actus reus if D has oblique intent.
Much of the law in this area has concentrated on what is required for the jury to find indirect intent but R v Woollin contains the current model direct to be given to the jury.
Oblique intent is only to be used in rare circumstances when the facts require it and when intention is the only form of mens rea for the offence eg murder, causing GBH with intent contrary to s 18 Offences Against the Person Act 1861.
This means that if the rules of the offence allows mens rea in the form of intention or recklessness then you must not refer to oblique intent. For example, if a defendant is charged with criminal damage and D does not directly intend to destroy/damage property, then you must consider whether D was reckless.

Question 23

Motive and intention

Answer 23

What the law is very clear about is that intention should not be confused with motive or desire.
While the defendant may have a motive (for instance, a reason to kill), that does not mean when
D commits the actus reus D can automatically be taken to have the intention to kill.
However, while a motive is not the same as intention, an individual can be taken to intend both their ends and the means through which they will achieve them.

Question 24

Recklessness

Answer 24

Recklessness is when a person does not intend to cause a harmful result but sees a risk of harm and goes ahead anyway. In order to be criminally liable for reckless behaviour, the risk taking must be unjustifiable. If risk taking is justifiable, there is social utility or value to the activity, against the likelihood and the amount of harm that might happen.

Question 25

recklessness test

Answer 25

• D foresaw a risk of harm and went ahead anyway; and
• In the circumstances known to the defendant, it was unreasonable to take the risk.

Question 26

Coincidence of actus reus and mens rea

Answer 26

Coincidence of actus reus and mens rea: As a general rule, the defendant must have the relevant mens rea for the offence at the precise moment when D commits the actus reus. This is known as the requirement for coincidence of actus reus and mens rea.
The courts have developed some flexible interpretations to get round the requirement for coincidence of actus reus and mens rea:
* The continuing act theory; and
* The one transaction principle.

Question 27

The continuing act theory

Answer 27

A defendant can be guilty of an offence using the continuing act theory if they form the mens rea for the offence at some point during the actus reus continuing.
In the Fagan case, the defendant formed the mens rea when he realised that his vehicle was on the police officer’s foot and did not move it. At the moment he formed the mens rea, the actus reus was still continuing.

Question 28

The one transaction principle

Answer 28

Sometimes the court will categorise the actions of the accused as a series of acts, making up one transaction. In certain circumstances it is enough for the defendant to have the mens rea at some time during that transaction.

Question 29

Extension of the one transaction principle: Causation

Answer 29

This principle has been extended to cases where there was no prior planning.
In Le Brun it was recognised that sometimes the problem of coincidence of actus reus and mens rea may be avoided by viewing the act done with the mens rea (the first act) as causing subsequent acts. D’s act of knocking his wife unconscious caused him to drag her home and drop her on the pavement.

Question 30

Where it isn’t clear which of D’s acts was the actus reus

Answer 30

• In such cases, the defendant must have the mens rea for the relevant crime when D does each of the acts which could constitute the actus reus.

Question 31

Transferred malice

Answer 31

Transferred malice: Transferred ‘malice’ is when D’s mens rea is transferred from the intended harm to the actual harm.
It does not make a difference to criminal liability that D, for example, intends to kill X, but misses and kills Y instead. The doctrine of transferred malice operates to allow the mens rea against X to be transferred and joined with the actus reus that causes the prohibited harm to Y. D’s intended harm against X can be transferred to the unintended victim, Y, and D will still be guilty of the crime of murder.

Question 32

Limits of transferred malice

Answer 32

The court in R v Pembliton quashed his conviction for criminal damage since that was an offence with a different mens rea. To be liable for criminal damage, the accused must have intended to damage property or been reckless to the same. An intention to injure a person was insufficient. Therefore, transferred malice will not assist where the defendant has the mens rea for one crime and the actus reus for another.

Question 33

Mistake - ignorance of the law vs mistakes that negate the mens rea

Answer 33

Ignorance of the law
If the defendant does not know they are breaking the law, this mistake will not help avoid liability. Hence, the saying ‘ignorance of the law is no excuse’. This is the case even if the defendant’s ignorance is quite reasonable, and even if it were impossible for D to know of the prohibition in question.

Mistakes that negate the mens rea
If the defendant takes the wrong umbrella away from a restaurant, mistakenly believing it is their umbrella, there will be no liability for theft because D will not be dishonest. The mistake could be one of civil law, as seen in R v Smith.
If the mens rea required for the relevant element of the actus reus is intention or recklessness, there is no need for the mistake to be reasonable. If the mens rea requirement is negligence, then the mistake must be reasonable.

Question 34

Defences - consent

Answer 34

There are a variety of rules on consent. In the context of non-fatal offences against the person, the availability of consent will depend on the seriousness of the offence.
* If the offence is an assault or battery, consent is available if the victim consented or D honestly believed that V was consenting (AG Reference (No 6 of 1980)[1981] QB 715).
* If D intended to cause the offence of actual bodily harm or above, consent is not available (R v Brown[1994] AC 212) unless some of the public interest exceptions apply: medical treatment, sport, horseplay, tattooing/personal adornment and sexual gratification/accidental infliction of harm.

Question 35

Defences - self-defence

Answer 35

Self-defence can be used in protection of yourself, another or property.
If successful, the defendant will be acquitted.
It is a defence that is found in both common law and a statute, under s 76 Criminal Justice and Immigration Act 2008 (as amended).

The defendant is entitled to rely on the defence if:
* The defendant honestly believed that the use of force was necessary; and
* The level of force the defendant used in response was objectively reasonable in the circumstances as the defendant believed them to be.

Question 36

Defences - mistake

Answer 36

While ignorance of the criminal law will not prevent criminal liability, the defendant may make a mistake of fact or civil law which can mean that the mens rea of the offence is not fulfilled and will escape criminal liability as a result. This could be a mistake of fact. If Ryan takes the wrong umbrella away from a restaurant, mistakenly believing it is his, he will not be liable for theft because he will not be dishonest.

Question 37

Murder

Answer 37

Murder is a common law offence and is defined as ’unlawful homicide with malice aforethought’

Question 38

unlawful homicide

Answer 38

The actus reus elements of the offence are the words ‘unlawful homicide’. Unlawful homicide was defined by Sir Edward Coke (3 Inst 47) as ‘[…] unlawfully killing a reasonable person who is in being and under the King’s peace […]’.

Under English law there is no offence of homicide as such. It is a generic term and can be broadly defined as causing the death of another human being. Murder is the most serious form of homicide, and what distinguishes murder from other forms of homicide is that the defendant must act with a specific intent. Homicide also covers other offences including involuntary manslaughter for example.

Question 39

elements of murder offence

Answer 39

Unlawful - the act must be unlawful

Killing - prosecution to show D caused victims death

Human being

Under the kings peace

Question 40

Malice afterthought

Answer 40

The mens rea for murder is ‘malice aforethought’ which means:
* Intention to kill (express malice); or
* Intention to cause grievous bodily harm (implied malice). Grievous bodily harm means ‘serious harm’ (Saunders[1985] Crim LR 230).
The defendant does not need to have any malice, nor does the act need to be premeditated. Mercy killing is no defence in English law (Inglis [2011] 1 WLR 1110).
The defendant can have malice aforethought even if they kill a person in the spur of the moment.

Question 41

Key principles of intention

Answer 41

The key principles of intention apply.
* Generally the meaning of intention should be left to the common sense of the jury. However, direct intent is where the consequence is what the defendant, subjectively, aims to happen (R v Moloney[1985] 1 All ER 10252q
* Where D’s aim or purpose in acting is something other than death or grievous bodily harm, juries are not entitled to find oblique intent unless they feel sure:
* Death or serious injury was a virtual certainty as a result of the defendant’s action (objective element); and
* The defendant appreciated that (subjective element) (R v Woollin[1999] AC 82).
* Judges have said that the need for a Woollin direction will rarely arise. Oblique intent is not
intention but evidence of it (R v Matthews & Alleyne[2003] EWCA Crim 192).
* Motive is not the same as intention (DPP v Chandler[1964] AC 763) but can be used as
evidence of intention (R v Hill(1985) 81 Cr App R 206).

Question 42

homicide

Answer 42

Homicide is an umbrella term used to describe a set of offences where the defendant has killed a victim. Homicide includes murder, voluntary manslaughter and involuntary manslaughter.
If a defendant is found guilty of murder, they are given a mandatory life sentence. A defendant will not be criminally liable for murder if any of the elements of the actus reus or mens rea are missing.
Equally a defendant will not be criminally liable for murder if the defendant did not act with intention to kill or intention to cause grievous bodily harm, meaning serious harm.

Question 43

Voluntary manslaughter

Answer 43

This is where the defendant has satisfied the actus reus and mens rea of murder, but murder conviction is reduced to voluntary manslaughter by way of diminished responsibility or loss of control

Question 44

involuntary manslaughter

Answer 44

This is where the defendant has killed the victim, but lacks the mens rea of murder.

These questions to establish whether the defendant is criminally liable for murder or voluntary manslaughter:
1. Has the defendant unlawfully killed another human under the Queen’s peace with intention to kill or intention to cause grievous bodily harm?
2. Can the defendant rely on a complete defence such as self-defence?
3. Can the defendant rely on the partial defence of loss of control or diminished responsibility?

Question 45

Voluntary manslaughter: Diminished Responsibility

Answer 45

Diminished responsibility is a partial defence, meaning if it is successful, the defendant is not acquitted but convicted of a lesser offence, known as voluntary manslaughter (s2(3) Homicide Act 1957 (HA)). This means that the judge will have discretion in sentencing and the defendant will avoid the mandatory life sentence handed down to those convicted of murder (Murder (Abolition of Death Penalty) Act 1965).
The burden falls upon the defence to prove on the balance of probabilities that the defendant was acting under diminished responsibility (s 2(2) HA).
Diminished responsibility is not available as a defence to a charge of attempted murder

Question 46

elements of diminished responsibility

Answer 46

• Diminished responsibility has four elements:
• D must have an abnormality of mental functioning (s 2(1)), meaning ‘state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal’ (R v Byrne).
• The abnormality of mental functioning must:
  o Arise from a recognised medical condition (s 2(1)(a)) which can be diagnosed or not at the time of the killing. D must not be acting out of hatred, jealousy or bad temper.
  o Have substantially impaired (something greater than ‘more than merely trivial’, R v Golds) the defendant’s ability (s 2(1)(b)) to understand the nature of D’s conduct, form a rational judgment and/or exercise self-control (s 2(1A)).
  o Provide an explanation for D’s conduct (s 2(1)(c)), even if it is not the only cause (s 2(1B) and R v Dietschmann).

Question 47

Voluntary manslaughter: Loss of control

Answer 47

Loss of control is a partial defence to murder - The burden of proof rests with the prosecution once the issue is raised

Question 48

The three key requirements of the loss of control defence

Answer 48

*D lost self-control. This does not have to be complete but D must be unable to exercise self-restraint (R v Richens).

• D acted as a result of a qualifying trigger:
• Fear trigger: Defendant fears serious violence; and/or
• Anger trigger:
  o Things said and/or done;
  o That constitute circumstances of an extremely grave nature; and
  o That causes D a justifiable sense of being seriously wronged.

*A normal person might have done the same or a similar thing. The jury will have to assess:
o The gravity of the qualifying trigger to a person in the defendant’s circumstances; then
o Whether as a result of that trigger a normal person might have done what the defendant did or something similar.

Question 49

Voluntary manslaughter: Loss of control-limitations

Answer 49

The defence of loss of control cannot be used:
1. In an act of ‘considered desire for revenge’;
2. As an excuse to use violence;
3. If the thing said/done constituted sexual infidelity;
4. If the defendant is charged with attempted murder.