WHAT MAKES A CRIMINAL OFFENCE?

Question 1

What constitutes a crime?

Answer 1

Actus Reus + Mens Rea + (for result crimes) causing the bad consequence (death/injury)

Question 2

Types of criminal offence

Answer 2

1) Act or Conduct Crimes - guilt by conduct irrespective of consequences e.g. rape
2) Result (consequence) crimes - e.g. murder
3) situational crimes e.g.possessing controlled drugs

Question 3

What is Actus Reus

Answer 3

The conduct element of an offence (most criminal offences require a positive and voluntary act to to be performed. e.g. murder = act of killing)
However, if there is duty to act (e.g. child to feed) then one may be liable for omission

Question 4

Liability by Omission

Answer 4

Few offences can be committed by omission. There is no general “Good Samaritan” law (Miller, 1983)
Liability will be imposed where there is a duty to act in order to avoid harm

Question 5

examples of liability by omission

Answer 5

Gibbons and Proctor [1918] starved a child
Stone and Dobinson [1977] failed to care for a vulnerable relative
Pittwood [1902] failed to close a railway crossing

Question 6

Act or Omission?

Answer 6

Sometimes it is not clear whether conduct amounts to an act or an omission, particularly in the medical context

Question 7

Act or Omission Example

Answer 7

Airedale Trust v Bland [1993]
Do you agree that withdrawing or discontinuing treatment should be classified as an omission?
Do you see a moral distinction between killing and letting die

Question 8

Factual Causation

Answer 8

‘but for’ test
‘but for’ D’s act, would he result have occured?

Question 9

Legal Causation

Answer 9

In addition to satisfying the ‘but for’ test, D’s act must be culpable and more than a minimal cause of the harm

Question 10

Intervening acts of causation

Answer 10

1. Natural events
2. Act of third party - often medical blunders
3. victims own act/choice

Question 11

Mens Rea

Answer 11

‘the guilty mind’
Intention -> recklessness -> gross negligence

Question 12

offences that require no mens rea?

Answer 12

Acts which are criminal only under certain circumstances e.g. driving without a license & Strict Liability Offences

Question 13

What is the most culpable/blameworthy form of mens rea?

Answer 13

INTENTION
does not require motive or premeditation

Question 14

Direct Intention

Answer 14

the D intends a particular consequence, acting with purpose or aim towards that result

Question 15

Oblique intention

Answer 15

The D knows that a particular consequence is very certain to happen

Question 16

Oblique intention case study

Answer 16

Woollin [1999]: confirmed the 3-part test for oblique intent:
The result was virtually certain;
The result was foreseen by D as virtually certain;
It is for the jury to ‘find’ intention.

Question 17

questions arising from Woollin

Answer 17

What does virtually certain mean? covers only those cases where the consequence was practically inevitable, rather than likely or very likely.

If the consequence was virtually certain and D realised this, must the jury convict, or do they retain discretion?

Question 18

Subjective Recklessness

Answer 18

SUBJECTIVE ‘Cunningham Recklessness’: Cunningham [1957] – The D must foresee the risk of harm caused under the OAPA 1861.

Question 19

Objective vs Subjective recklessness tests

Answer 19

Objective - would a reasonable person have foreseen something or believed it to be true

Subjective - Did the Defendant foresee something or believe something to be true?
“Honest belief” or “Genuine belief”.
In Crown Court, the jury must be sure that the Defendant foresaw or believed it

Question 20

Gross Negligence

Answer 20

Negligence is not a state of mind like intention and recklessness, but a failure to comply with the standard of a reasonable man

Even if D did not foresee the risk, that failure is itself culpable where a duty of care is breached.

Question 21

gross negligence case study

Answer 21

Adomako [1995] – anaesthetist failed to check oxygen supply and V died. To be guilty, D must breach a duty of care and ‘…whether… the conduct of the defendant was so bad in all the circumstances to amount in their judgement to a criminal act or omission’ (Lord Mackay).