Chapter 6 (general elements of criminal liability)

Question 1

Types of Crime/ what is a Conduct crime?

Answer 1

The guilty act itself is criminal, irrespective of the consequence. Examples: Rape, theft, ABH

For example the offence of drink- driving is a criminal offence merely driving with excess alcohol in your bloodstream is the offence. No consequence, such as causing an accident is required.

Question 2

Types of Crime/ what is a consequence crime?

Answer 2

The guilty act itself may not be criminal, but the consequence is. For example, the offence of ABH, there must be an assault, but there must also be a consequence of actual bodily harm

Example- swinging an axe isn’t illegal but murder is

Question 3

Types of crime/ what are state of affairs crimes?

Answer 3

There are some rare instances in which the defendant has been convicted even though the act was not desired by the defendant, but occurred through actions against his will. These situations involve what is known as state of affairs cases such as (R V Larsonneur 1933)

Example: possessing an offensive weapon in a public place.

Question 4

Voluntary acts

Answer 4

The act or omission must be voluntary on the part of the defendant. If the defendant has no control over their actions, then they have not committed the actus reus.

(R V Hill V Baxter 1958) -the defendant ignored a road sign that said halt and carried on, causing his van to crash. The court gave examples of where a driver could not be said to be doing the act of driving voluntarily such as losing control of the vehicle while being stung by the swarm of bees, being struck on the head with a stone or having a heart attack while driving. Rule-if something happened out of your control that has made you commit the crime, the act is involuntary

Question 5

Can an omission make a person guilty of an offence?

Answer 5

The normal principle is that the actus reus must be a positive act. Therefore, an omission( a failure to act) can not make a person guilty of an offence. There is no requirement on a person to go to the aid of another in danger. However, there are situations where an omission, can give rise to liability in criminal law- 6 exceptions

Question 6

1st exception- Statutory omissions

Answer 6

An act of parliament creates an offence involving an omission. Many of these statutory offences are regulatory and concern matters such as prevention of pollution and public safety. These offences often require proof of an actus reus to establish guilt. These offences are known as offences of strict liability.

Example: S170 Road Traffic Act 1988- it is an omission to fail to report a road traffic accident

Question 7

2nd exception- Duty arising from a special relationship

Answer 7

A duty because of a relationship could be, for example that between a parent and child. This was shown in Gibbins and Proctor.

Case: R v Gibbins and Proctor (1918)- The child’s father and his mistress failed to feed the child so that it died of starvation. They had a duty to feed the child as a result of the relationship of parent to child, so had a duty to act. Their omission to act formed the actus reus of the offence and they were guilty of murder.

Question 8

3rd exception- Assumption of care

Answer 8

A duty which has been taken on voluntarily can give rise to actus reus where the duty is not carried out.

Case: R v Stone and Dobinson (1977)- Stones elderly sister came to live with the defendants. She became ill and unable to take care of herself. She died and the two defendants were convicted of manslaughter. As the deceased was stones sister, he owed her a duty of care to her. Dobinson had undertaken some care of her and so also owed her a duty of care. Their duty was to either help her themselves or get help from other sources. Their failure to do so meant they were in breach of their duty. This formed the actus reus of the crime.

Question 9

4th exception- Contractual duty

Answer 9

This is when a contractual duty to act exists.

Case- R v Pittwood (1902)- A railway- crosser keeper omitted to shut the gates so a person crossing the line was struck and killed by a train. The keeper was guilty of manslaughter, by virtue of a contractual duty, because of his failure to close the gate.

Question 10

5th exception- Duty arising from public position

Answer 10

The official position can give rise to a duty to act, and failure to act can then become the actus reus of a crime.

Case- R v Dytham (1979)- Dytham,a police officer, witnessed a violent attack on the victim but took no steps to intervene or summon help; instead he drove away from the scene. The officer was guilty of wilfully and without reasonable excuse neglecting to perform his duty.

Question 11

6th exception- creating a dangerous situation

Answer 11

A duty towards the victim arises because the defendant has set in motion a chain of events. The concept of owing a duty and being liable through omission was created in the case of Miller (1983)

Case- R v Miller (1983)-The defendant, a squatter, fell asleep in an empty house. His lit cigarette fell onto his mattress and a fire started. When he realised this he left the room and went to sleep in another room. He did not attempt to put out the fire or summon for help. He was found guilty of Arson.

Question 12

Duty of doctors, are they criminally liable for the ending of treatment?

Answer 12

There can be cases where doctors decide to stop treating a patient or withdraw life support, knowing they will die as a result. Logistically speaking, this would be an omission, which could form the actus reus of an offence but…

Case- Airedale NHS Trust v Bland (1983)- Mr Bland had no quality of life. fed through a tube for 3 years. Hospital had to go to court to get permission from a judge to excuse them from prosecution. The doctors withdrew the treatment .

Rule: This is not excusing doctors from medical negligence or malpractice, only excludes them if it is in the best interests of the patient.

Question 13

What is causation?

Answer 13

When a defendant is charged with a result crime, it is not enough to prove that the defendant had the actus reus and the mens rea of a crime. He must have also caused the outcome. This is known as causation.

Where a consequence must be proved, the prosecution must show that the defendants conduct was the factual cause of the consequence and the legal cause of that consequence.

Question 14

What is the chain of causation?

Answer 14

The chain of causation is the link between the defendants actions and their criminal consequence. The chain must remain unbroken for causation to be proven.

The chain of causation can be broken by:
-an act of a third party
-the victims own act
-a natural but unpredictable event

Question 15

What is factual causation?

Answer 15

Factual causation requires the defendant to have caused the outcome as a fact. This is referred to as the ‘But for’ test: but for the defendants actions, the harm would not have occurred.

Case 1- R v Pagett (1983): The defendant used his pregnant girlfriend as a human shield while he shot at an armed policeman. The police fired back and the girlfriend was killed. Pagett was convicted of her manslaughter. She would not have died ‘but for’ him using her as a shield in the shoot-out.

Case 2 - R v White (1910): The defendant put cyanide in his mother’s drink, intending to kill her. She died of a heart attack before she could drink it. The defendant was not the factual cause of her death; he was not guilty of murder, though he was guilty of attempted murder.

Question 16

What is Legal Causation?

Answer 16

-Legal causation checks that the defendant remains the substantial and operative cause of the harm suffered. As seen in R v Smith (1959)

-Substantial- The actions of the defendant must be more than de minimis to the end result (more than a slight or trifling link) Seen in R v Kimsey (1996)

-Operative- there must be no novus actus interveniens (new act intervening) which breaks the chain of causation

Question 17

What is Novus Actus Interveniens ?

Answer 17

Means new act intervening and include…
-Acts of the victim
-Thin-skull rule
-Acts of a third party (medical treatment)
-Naturally occurring events

These could break the chain of causation but even if there is a novus actus interveniens it does not mean the chain of causation will break automatically

Question 18

Intervening acts - Acts of the victim

Answer 18

If the defendant causes the victim to react in a reasonably foreseeable way, then any injury to the victim will be considered to have been caused by the defendant.

Case- R v Roberts (1971)- A girl jumped from a car in order to escape from sexual advances. The car was travelling at between 20 and 40 mph and the girl was injured through jumping from the car. The defendant was held to be liable for her injuries.

If the defendants reaction is daft and unforeseeable then the chain of causation will be broken and the defendant will not be liable for the injuries suffered.

R v Williams and Davis (1992)- A hitch hiker jumped from Williams car and died from head injuries caused by his head hitting the road. The car was travelling at about 30 mph. The prosecution alleged that the driver had attempted to steal the victims wallet and that was the reason for jumping out the car. The court stated that the victims act had to be foreseeable and also had to be in proportion to threat and so the injury to the victim was not caused by the defendant.

Question 19

What is the thin- skull rule?

Answer 19

The defendant must take the victim as he or she finds them. This is known as the thin-skull rule. If the victim has something unusual about their physical or mental state which makes an injury more serious, then the defendant is liable for the more serious injury

Example Case- R v Blaue (1975): A young woman was stabbed by the defendant. She was told she needed a blood transfusion to save her life but she refused to have one as her religion forbade blood transfusions. She died and the defendant was convicted of her murder. Despite the fact that her religious belief made the wound fatal, the defendant was still found guilty because he had to take the victim as he found her.

Question 20

Novus Actus interveniens- An act of the third party -medical treatment

Answer 20

There are a number of cases where it was asked whether poor medical treatment was the operating or substantial cause of the injuries. Medical treatment is unlikely to break the chain of causation unless it is so independent of the defendants acts and ‘in itself so potent in causing death’. Medical treatment will only break the chain of causation where the treatment given is ‘palpably’ wrong- as seen in R v Jordan (1956) as the defendants actions were not the significant cause of death.

Case1- R v Smith (1959): two soldiers had a fight and one was stabbed in the lung by the other. The victim was carried to a medical centre but was dropped on the way. At the medical centre, the staff gave him artificial respiration. This made the injury worse and he died. If he had been given the proper treatment his chances of recovery would have been as high as 75%. Despite this, the original attacker was still guilty of his murder. This was because the stab wound was the overwhelming cause of death- it was the operative and substantial cause of death. This means that the significant cause, the stabbing, was more than a minimal contribution to the death.

Case 2:R v Cheshire (1991) :The defendant shot the victim in the thigh and the stomach. The victim had problems breathing and was given a tracheotomy. The victim died from rare complications, which was not spotted by the doctors. By the time he died, the original wounds were no longer life- threatening. The defendant was still held to be liable for his death.

Question 21

Novus actus interveniens- naturally occurring events

Answer 21

A naturally occurring incident may occurring incident may which breaks the chain of causation. The incident must be unforeseeable. Example, where the injury or loss was caused by an earthquake or a flood.

Question 22

What is mens rea?

Answer 22

Mens rea refers to the guilty mind. When looking at mens rea, a defendants motive or reason for committing an act is irrelevant. Mens rea is not the same as motive- we are only looking at what they were thinking when they did the act, not why.

Question 23

What is direct intention?

Answer 23

In the case of Mohan (1975), the court defined intention as “ a decision to bring about, in so far as it lies within the defendant’s power, the criminal consequence”

It must be the defendants main aim or purpose for the consequence to occur.

Case- R v Mohan (1975): The defendant refused to stop when a policeman signalled for him to do so. Instead, he drove towards the officer. This shows direct intention to scare or injure the policeman.

Question 24

What is oblique intention?

Answer 24

There can be situations where the defendant had another aim entirely, but the consequence was virtually certain. Intention can still be found here, though the principle of indirect intention. This was explained in R v Woollin (1998)

R v Woolin (1998): The D lost his temper and threw his 3 month- old son at a wall. The baby suffered head injuries when he hit the wall and died. The court ruled that the consequence must be virtually certain and the defendant must realise this.

Indirect intention can be found where : the consequence is a virtually certain of the act and the defendant knows that its a virtually certain consequence.

Question 25

What are the issues of foresight of consequences?

Answer 25

There has been a lot of case law surrounding foresight of consequences ( whether the D was aware of the virtual certainty of his actions). EXAM TIP: where an offence has the mens rea of either intention or recklessness available, and you can not find direct intention , use recklessness rather than trying to find indirect intention.

Question 26

What is recklessness?

Answer 26

Recklessness is when the defendant knows there is a risk of the consequence happening, but takes that risk anyway. It has to be proved that the defendant realised the risk, but decided to take it. This is a subjective test/ take into account mental age etc This can be seen in the case of R v Cunningham (1957): The D tore a pre- payment gas meter from the wall of an empty house in order to steal the money in it. This caused gas to seep into the house next door, where a woman was affected by it. He was held to be not guilty since he did not realise the risk of gas escaping into the adjacent house. He had not intended to cause the harm, nor had he taken a risk he knew about- he was not reckless.

Question 27

What is Negligence?

Answer 27

Negligence is the failure to meet the standards of the reasonable person. it is rarely sufficient for a mens rea in criminal law , but there are certain exceptions- Gross negligence manslaughter and some statutory offences/ s3 of the Road Traffic Act 1998 under which negligent driving is enough for criminal liability. Recklessness is about defendants who realise the risks, whereas negligence is about not realising the risk and this being unreasonable.

Question 28

What is the concept of strict liability?

Answer 28

Not every crime requires a mens rea in order for the defendant to be found guilty of an offence. This is known as strict liability, where the actus reus is enough to satisfy the offence. Example cases: -Pharmaceutical Society of Great Britain v Storkwain Ltd (1986): The defendant, a pharmacist, had supplied drugs on prescriptions, but later on the prescriptions were found out to be forged. He had not acted dishonestly or even negligently. The forgery was sufficiently good to deceive the pharmacist. Despite this, he was convicted of supplying drugs without genuine prescription.

Question 28

No fault case example:

Answer 28

Even though the defendant was totally blameless in respect of the consequence, he or she can be convicted as in Callow v Tillstone (1900) : A butcher asked a vet to examine a carcass to see if it was fit for human consumption. the vet assured him that it was, so the butcher offered it for sale. In fact, it was unfit and the butcher was convicted of the offence of exposing unsound meat for sale. This shows that there is no automatic due diligence defence. Due diligence- where the defendant has done all that was within his power not to commit an offence.

Question 28

Harrow LBC v Shah and Shah (1999) / taking reasonable steps to prevent an offence

Answer 28

Even where the defendants took all reasonable steps to prevent the offence, they are still guilty as in this case. The defendants owned a newsagents business where lottery tickets were sold. They had told their staff and reminded them frequently not to sell tickets to anyone under 16 years old. One member of staff sold a ticket to a 13 year- old boy, without asking for proof of age. The defendant owners were convicted of selling a lottery ticket to a person under 16 , despite their best efforts.

Question 29

Is there a defence for a mistake? Use Cundy v Le Cocq (1884)

Answer 29

No, there is no defence for a mistake. This can be seen in Cundy v Le cocq (1884) : The defendant was charged with selling intoxicating liquor to a drunken person. The individual had not displayed any signs of being drunk but the offence was complete on proof that a sale had taken place and that the person served was drunk, so the defendant was convicted.

Question 30

How do we know if men’s rea is required for some criminal offences?

Answer 30

Strict liability offences crated by an act of parliament will not contain any words requiring men’s Rea in their definition. However the courts will look at a number of factors before deciding that a statute is one of strict liability. The starting point for deciding which offences are of strict liability is the presumption of men’s Rea. Nearly all the strict liability offences have been created by statute, so this presumption will have been in the mind of the parliamentary law makers. If the act doesn’t make it clear that men’s Rea is not required, judges will look for words in an act of parliament that indicate men’s Rea such as intentionally or maliciously .if there are no such words , judges will still presume that all criminal offences require men’s Rea. This was made clear in the case of Sweet v Parsley (1969): the defendant let out a farmhouse to students . The police found cannabis at the farmhouse and the defendant was charged with with being concerned in the management of premises used for the purpose of smoking cannabis. She did not know that cannabis was being smoked there. It was decided that she was not guilty as the court presumed that the offence required men’s Rea.

Question 31

What is transferred malice?

Answer 31

Men’s Rea can be transferred can be transferred from the intended victim to the actual victim where the defendant misses their intended target. Cases: R v Latimer (1886): the defendant aimed a blow with a belt at a man in a pub after that man and attacked him. The belt bounced off the man and struck a woman int he face . Latimer was guilty of malicious wounding against the woman, although he had not meant to hit her. There was transferred malice so he could be found guilty of hitting the woman

Question 32

For transferred malice what principle was found in R v Pembilton?

Answer 32

Where the men’s Rea is for a completely different type of offence, the defendant might not be guilty. Seen in R v Pembilton: the defendant had been fighting and threw a stone, intending for it to hit those whom he had been fighting. The stone hit a window and broke it, which was criminal damage. The intention to hit people could not be transferred to breaking the window as there was a different men’s Rea for the two offences

Question 33

What is general malice?

Answer 33

In some cases, the defendant may not have a specific victim in mind. Example- a terrorist who plants a bomb in a pub, intending to kill or injure anyone who happens to be there In this case, the defendants men’s tea is help to apply to the actual victim

Question 34

What is the contemporaneity rule?

Answer 34

In order for an offence to take place , both the actus reus and mens rea must be present at the same time. This is known as the contemporaneity rule. The courts have modified the coincidence rule to make sure a series of linked acts or omissions can be treated as a single, continuing act. Actus reus can be a continuous act and generally, the actus reus and Mens Rea of an offence must coincide. Case: Fagan V MPC (1969)- Fagan was told by a police officer to park by the pavement. Fagan drove onto the policeman’s foot without realising he had done so. The policeman pointed out what happened and asked Fagan several times to move the car of his foot. Initially he refused to move his car and swore at the policeman,telling him he could wait. Eventually Fagan did move the car. The court stated that once Fagan knew the car was on the police officers foot, he had the required mens Rea for the offence . As the actus reus(the car putting force on the foot) was still continuing, the two elements were then present so coincided

Question 35

The contemporaneity rule / R v Church (1965)

Answer 35

In Church 1965 the court had to decide whether the actus reus and mens rea were present together. Unlike Fagan, where the actus reus started before the mens rea occurred , the mens rea started before the actus reus occurred. R v Church (1965): the victim mocked the defendants ability to satisfy her sexually and slapped his face. A fight developed during which he knocked her unconscious. He tried but failed to wake her for 30 minutes. He then believed she was dead and threw her body into a river. Medical evidence revealed that her cause of death was drowning and the victim therefore had been alive when the defendant threw her into the river. This was a series of events and he was convicted of manslaughter.