#15539 - Intro Ar Mr General - GDL Criminal Law

Criminal Law: General & Miscellaneous

Abbreviations

• AR = Actus Reus

• MR = Mens Rea

• NAI = novus actus interveniens

• CA = Court of appeal

• SC = Supreme Court

Intro to Criminal Law

Difference between Civil & Criminal law

• Court structure different.

• Criminal law part of public law.

• Terminology:

  • Prosecutor not claimant.

  • Defendant or accused.

  • Prosecute, not sue.

  • Charge, not claim.

• Burden and standard of proof:

  • Generally burden on prosecution (sometimes on defence, eg for defence of diminished responsibility).

  • Woolmington v DPP: ‘beyond reasonable double’.

  • Beyond reasonable doubt (‘by making you sure of it’).

Classification of offences

• Summary offences: magistrate’s courts normally.

• Indictable offences: charged in crown court, have a jury.

• Either way offences.

Elements of an offence

• Actus Reus—the act, or an omission. Can including surrounding circumstances. Any part which is not the mental element.

• Mens Rea-the mental state the defendant must have when carrying out the actus reus.

• Absence of a defence.

• Actus Reus (=’harmful act’):

  • Conduct offences: all that is required is an action. The pure conduct constitutes the actus reus.

  • Eg blackmail (S21 Theft Act 1968)—the actus reus is simply making a demand with menaces. No need for the victim to be frightened etc.

  • Result offences: you need the conduct, and a result.

  • eg S18 offences against the Person Act: need a result of ‘grievous bodily harm’. Also requires causation (next lecture).

  • Eg murder. Actus reus of murder is an act which causes death. So you need the act; the causation; and the result (death).

  • Surrounding circumstances also part of actus reus: eg Criminal Damage Act s1(1)- in theft, the actus reus is damaging property ‘belonging to another’. Likewise, in theft, tTheft Act 1968 s1(1)-the property stolen ‘must belong to another’.

  • Omissions:

  • R v Smith (Wm): no general duty in English law to act, no liability for failure to act. Eg you could watch a child drowning and not intervene, there’s no duty to act.

  • But lots of exceptions to general law of ‘no duty to act’. Eg if you drive a car you must have a license. Or in common law, duties arising from contracts, from relationships (eg being a parent) etc.

  • So an omission (a failure to act) can be part of actus reus.

• Mens Rea (= ‘blameworthy state of mind’):

  • The mens rea is attached to the crime: you look at the crime as your starting point, and say what mental state does this crime retire.

  • Intention: some offences require intention. Eg s18 Offences Against the Person Act: ‘with intent ... to do some grievous bodily harm’. Or murder, defendant must have intended to kill the victim or intend to cause him really serious injury.

  • Recklessness: did the defendant see a risk of this happening. Recklessness = taking an unjustifiable risk, aware of the danger.

    • Malice/maliciousness: Some offences use other words, such as ‘maliciously’, eg S20 Offences Against the Person Act 1861: ‘whoever shall unlawfully and maliciously wound or inflict’. S20, less serious offence than s18 (which requires intent); this instead requires recklessness.

    • Maliciously means recklessly.

  • A lot of crimes require either ‘intention’ or ‘recklessness’.

    • Eg criminal damage.

  • Dishonesty: comes into lots of cases based on theft, defendant must be guilty of being dishonest when handling the goods. Definition of ‘dishonest’ in R v Ghosh, workable test set out.

  • Knowledge: eg handling stolen goods, Theft Act 1968, s22--mens rea of ‘knowing or believing them to be stolen goods’.

  • Strict liability offences:

    • Strict liability: mens rea does not have to be proven in relation to one or more elements comprising the actus reus.

    • Eg Offences against the Person Act 1861 s47 (actual bodily harm). Actus reus is an assault occasioning actual bodily harm.

    • The mens rea is intentional recklessness.

    • There’s no mens rea of any foresight or intention to cause actual bodily harm.

  • Absolute liability Offences (we don’t study these offences on the course):

    • Absolute liability: no mens rea required for any part of the act.

    • Just for the act, no mens rea

    • R v Larsonneur: Larsonneur convicted until Aliens Order Act 1920, of being an alien in the country when permission to land in UK had been refused. Was brought to England from Republic of Ireland against her will by the police, and then was convicted of being there in England.

    • Winzar v Chief Constable of Kent. Offence under 1872 Licensing Act s12, of being found drunk in a highway. Defendant was guilty of being drunk on a highway after the police had removed him from a hospital and taken him to the highway.

    • Some minor offences of absolute liability: eg parking on a double yellow line.

Answering Criminal Law Questions

• State the law.

• Explain the law.

• Apply the law to your facts.

• ‘IDEA’ (methodology summary)

  • IDENTIFY: (1) who might be liable or an offence; (2) identify their relevant act/omission; (3) identify the offence

  • DEFINE what the law requires for these offence(s) to be committed. Establishing actus reus and mens rea. Facts may also allow a particular defence to be run.

  • EXPLAIN what the law requires for these elements to be satisfied. Both statutory offences and case law for interpretation. Determine ratios from cases.

  • APPLY this law to the facts of your case.

• More detailed structure:

  • A. Identify the person whose liability you will discuss. Identify his relevant act or omission. Identify the most likely crime he may have committed (sometimes two possible offences).

  • B. For each possible offence:

    1. State actus reus.

    2. Explain relevant law for each element of actus reus.

    3. Apply the law for each element of actus to your facts.

    4. State mens rea.

    5. Explain relevant law for each element of mens.

    6. Apply law for each element of mens to your facts.

    7. If a defence might apply, give elements of defence.

    8. Explain relevant law for each element of the defence.

    9. Apply law for each element of defence to your facts.

    10. (Repeat 7-9 for any further defence which might apply).

Burden/standard of proof

• Woolmington v DPP: burden on prosecution to prove D’s guilt beyond reasonable doubt.

AR—causation

Factual causation

• ‘But for’ test (R v White), re poisoning mother’s drink, died of heart attack, would have died anyway.

Legal causation

• Must be ‘operating & substantial cause’ (Pagett; Smith).

• Must be D’s culpable act (Dalloway) (eg, not holding the reins, not the mere fact he was driving).

• Multiple causes—won’t matter if D’s cause is ‘substantial’ (Benge; Hughes).

• ‘Substantial’: More than ‘slight’/’trifling’/’minimal’ (Cato; Kimsey; Hughes)

• ‘Operating’: Whether a break in causation, a novus actus interveniens (NAI):

  • 3^rd party intervention: Pagett: ‘free, deliberate and informed’ act needed to break chain.

  • Medical neg:

  • R v Smith: must be ‘so overwhelming’ as to make original wound ‘merely part of the history’. Ask whether original wound is still the ‘operating & substantial cause’.

  • R v Cheshire: whether the negligent treatment was ‘so independent of his acts and in itself so potent in causing death’ that D’s acts are ‘insignificant’ contribution to death.

  • Thin skull rule: R v Hayward. You take whole person, in both body and mind (Blaue).

  • Act of victim—‘fright and flight’:

  • Roberts: victim’s action—was it ‘reasonable foreseeable’, or ‘so daft and unexpected’ that wasn’t reasonably foreseeable. To break chain must be a voluntary act which is not reasonably foreseeable.

  • Confirmed, Williams & Davies (CA): ‘reasonably foreseeable’ objectively, but including acknowledgment of individual circumstances—bear in mind victim’s characteristics when determining if objectively ‘reasonably foreseeable’.

  • Act of victim—refusal of treatment

  • Holland: victim refused to have fingers amputated; didn’t break chain; would was real cause of death.

  • Blaue: Jehovah’s witness, refused blood transfusion; didn’t break chain, D must take V as they find them, in both mind and body.

  • R v Dear: allowing yourself to bleed to death, doesn’t break chain—injuries caused by D still the ‘operating and significant’ cause of death.

  • Act of victim—suicide

  • Passive suicide R v Dear: allowing yourself to bleed to death doesn’t break chain.

  • Active suicide R v Kennedy: a ‘free, informed, deliberate act’- can break chain. So a positive act of suicide could be NAI.

  • Natural events: use ‘reasonably foreseeable’ test---will only break chain if ‘extraordinary’.

  • New situations, R v Girdler: apply test best suited for whether D should be held responsible for the harm, in that case ‘reasonably foreseeable’ test.

MR issues

Intention

Intention--direct

• Direct intention = aim/purpose, consequence is direct purpose/objective of the act (R v Moloney, Lord Bridge). Ordinary meaning, jury knows what it means. Wholly subjective.

Intention-oblique/indirect, very rare, probably only for murder

• [[don’t use this for a crime with a reckless MR]].

• Oblique intent = a result which D sees will occur as a necessary side effect of his direct intention. When

• R v Woolin (HL):

  • (1) was the result a ‘virtual certainty’ of D’s act? [[objective]].

  • (2) Did D appreciate this to be the case [[subjective]].

• Oblique intention = ‘evidence of intention’ (R v Matthews & Alleyn).

Motive and intention

• Motive doesn’t prove/disprove intention, motive is irrelevant to intention (Chandler v DPP; R v Moloney).

• Though motive can be used as evidence of intention: eg R v Hill, Lord Goff, re poisoning offences OAPA.

Reckless

• ‘Cunningham recklessness’, test in R v G (HL):

  • D acts recklessly with respect to:

  • (1)

    • (i) a circumstance when he is aware of a risk that it exists or will exist

    • (ii) a ...