#15605 - Problem Questions Notes - Criminal Law

CRIMINAL LAW FOR PROBLEM QUESTIONS

GENERAL PRINCIPLES

ACTUS REUS

Voluntary act amounting to AR:

• If there was, then need to consider whether there was a novus actus or other event that broke the chain of causation.

• If not, then the broad rule is Deller [1952]: no crime has been committed, even if D did his best to commit a crime. Here, D tried to defraud V into buying a car (car was in fact unencumbered).

  • Consider also, that there may be an attempt (see bellow).

• In some cases there may be an omission.

Did D commit a crime by omission? No general omissions liability (must be duty to act).

• Line between acts and omissions: can be hard to distinguish them.

  • Bland [1993]: B (brain dead after Hillsborough) was on life support. Could doctors turn it off? HL: yes, turning off machines is not an act: “absent a duty, the omission to perform what had previously been a duty will no longer be in breach of the criminal law.”

  • Speck [1977]: child touches a man’s penis. Man does nothing to remove hand. Was an act.

    • My thoughts: cases show courts can use ambiguity to reach right moral conclusion. RL issue?

• First question: was there a continuing act?

  • Fagan: D drove onto policeman’s foot and left car there. Act (diving on to foot) was continuing.

• Second question: D under a duty to act? Categories: (i) statutory duty; (ii) law enforcement duty

  • (iii) contractual duty: Pitwood [1902]: operator of a gate over a train line did not shut gate. D guilty of manslaughter.

  • (iv) assumed duties: voluntary assumption of responsibility for another’s welfare:

    • Stone and Dobinson [1977]: S+D (both handicapped adults) took in F (S’s sister). They neglected her. She died. Lane LJ: manslaughter conviction; they had assumed duty. Note: (i) D+S had assumed responsibility by attempting to care for her; (ii) unclear what role biological relationship between S and F was.

• Third question: if there was a duty, what was content of the duty? Herring: do what is reasonable in the circumstances. S+D left the objective/subjective question open.

• Fourth question: has D created a dangerous situation?

  • R v Miller [1983]: M fell asleep with lit cigarette in mouth. Wakes up with mattress on fire. He walks away. HL: convicted of arson. Diplock: conduct for entire period relevant.

    • Can be explained in terms of DC or continuing act.

If a result crime, did D cause the required consequence? Causation

• R v Dalloway [1847]: D driving a horse and cart negligently. Killed V. But, would have happened anyway, so no conviction.

• General starting point: causation is a matter of common sense: Bingham in Kennedy (No. 2): “Causation is not a single, unvarying concept to be mechanically applied without regard to context.”

• But for / factual causation:

  • Hughes [2013]: H was driving (unlicensed) when V, on heroin, swerved across the road and collided with him. SC: H not guilty. Mere presence on the road was not an operating cause: “distinction between conduct which sets the stage for an occurrence and conduct which on a common sense view is regarded as instrumental in bringing about the occurrence.” Shows that factual causation is too wide to be practical as a test / rule.

• Test: “operating and substantial cause.” Smith

  • Substantial: must contribute to the end result — not slight or trifling (see Cheshire).

  • Operating: no break in the chain of causation.

• Was there a break in the chain of causation? Four possible outcomes: (i) concurrent causes; (ii) novus actus; (iii) act of negligible effect; (iv) neither act caused death.

  • Novus actus:

    • Leading case: Kennedy (No. 2) [2007]: K prepared a syringe of heroin for V, who injected himself. V died of an overdose. HL: V’s decision to inject was a “free, deliberate and informed intervention”

    • Element 1: free, deliberate and informed act:

      • If not voluntary, no NA: e.g. A pushes B into C. A is responsible.

      • Where B’s actions are justified, won’t be NA: Pagett [1983]: D used girlfriend (V) as a human shield. Police returned fire, killing V. Goff LJ: “if a reasonable act of self-defence against the act of the accused causes the death of X, we can see no reason why the act … should relieve the accused from criminal responsibility.” Minority reasoning in Gnango.

      • B without knowledge of circumstances, won’t be NA: e.g. postman delivering a bomb.

    • Element 2: Must render A’s contribution no longer operating and substantial cause:

      • Smith [1959]: D stabbed V (soldiers). V was dropped twice on way to medical tent and received incorrect treatment. Lord Parker: no break in chain of causation. NA must render the first would “merely the setting” and no longer an “operation and substantial cause”

      • R v Jordan [1956]: D stabbed V. V was almost healed when he was admitted to hospital and was given antibiotics. Had an allergic reaction and died. CA: medical treatment was NA. Medical treatment was grossly negligent. Case is exceptional.

      • Cheshire [1991]: D shot V at a chip shop. During treatment, V suffered respiratory issues. Tracheotomy scar swelled, blocked windpipe, and V died. Gunshots had stabilised by this point. CA: only in most extreme cases will medical acts be an NA — must render D’s acts “insignificant” in terms of causal potency.

  • Acts of the victim breaking the chain of causation?

    • Roberts [1971]: R gave V a lift in his car. R made indecent suggestions. V jumped out of car. CA: test is whether “injury was the natural result of what D said and did, in the sense that it was something that could reasonably have been foreseen as the consequence of what he was saying or doing.” For it to break chain of causation, V’s action must be ‘so daft’ or unexpected that no reasonable man would have foreseen it. In this case, V’s act was NA.

    • Williams and Davies [1992]: slightly modifies test: action must be “within the range of responses” expected from a V in that situation, bearing in mind any “particular characteristic of V” and fact that in the moment he could act “without thought or deliberation.”

    • Marjoram [1999]: court follow Roberts and emphasise that foreseeability of V’s reaction was judged from the perspective of a reasonable person.

    • R v Blaue [1975]: D stabbed a Jehovah’s Witness. V refused a transfusion on basis of religious belief. D convicted of manslaughter. Lawton LJ: D cannot excuse himself by arguing V “could have avoided death by taking greater care of himself.” Fits with eggshell skull rule.

    • Reconciling Roberts and Blaue Blaue seems to be an application of the thin skull rule, whereas if the Roberts test were applied here the result might have been different because Blaue’s reaction wasn’t reasonably foreseeable. Suggested ways to reconcile them:

  1. In Blaue, V’s act was in effect an omission, whereas in Roberts it was an act. So, an omission won’t break the chain of causation but an act might if it was unreasonable or ‘daft’. This fits well into general approach of not criminalising omissions. S+S view.

  2. Blaue was a special case, about freedom of religion. Normally the jury should consider whether V’s response was reasonably foreseeable but here the court doesn’t want to ask that because then jury would look at reasonableness of religious belief.

• Dear [1996]: D stabbed V after being told V had sexually assaulted his 12 year old daughter. D argued V had broken causation by reopening his wounds and refusing treatment. CA: wounds still an operating cause; different if they had completely healed and then V reopened.

  • Hard to reconcile with Roberts: If V’s reaction (whether by blowing his brains out or doing what he actually did) was (per Roberts) so “daft as to make it [V's] own voluntary act”, the chain of causation is broken.

  • See also, Dhaliwal [2006] (see notes for murder / manslaughter): V committed suicide after a campaign of abuse; CA found there was sufficient causation (was foreseeable response).

• Thin skull rule: This Ds must take V as he find him:

  • Hayward [1908]: D chased his wife out of the house shouting threats at her. She collapsed and died. He did not physically touch her. She was suffering from a rare thyroid condition that could lead to death where physical exertion was accompanied by fright and panic. Both the D and W were unaware she had this condition. Ridley J: D caused wife’s death.

  • NB: as confirmed in Blaue the thin skull rule applies to the person as a whole —not just to the physical characteristics of the person.

• Natural event (Act of God): won’t break the chain of causation if ordinary —e.g. if D injures V and leaves his body on the sea shore and V drowns. However, if a freak of nature, this may break the chain of causation (V left on beach struck by lightening).

MENS REA

Intention

Starting point (current law): Woolin: in most cases intention should be given its ordinary meaning —in exceptional cases, the jury may find intention if a result was virtually certain to occur and the defendant realized it was virtually certain to occur.

• Core meaning of intention: ordinary meaning of the word

  • Moloney [1985]: M and S (his stepfather) got drunk at a wedding and argued over who could load and fire a gun more quickly. M loaded quicker and S challenged him to shoot. M fired wildly and killed S. M was convicted of murder. Lord Bridge: reduced to manslaughter. “The golden rule should be that … the judge should avoid any elaboration or paraphrase of what is meant by intent” Unless absolutely necessary. Core meaning: D intends a consequence of his action if he acts with the aim / purpose of producing that consequence.

• Intention vs foresight: Foresight of a consequence is not the same as...