Core Principles Flashcards

Question

Key case: R v Benge [1865] 4 F & F 504

Answer 1

Facts: Benge was the foreman of some railway tracklayers. He thought that the next train was not due for several hours and so ordered the track to be taken up. He sent a man with a red flag down the track to stop any trains. However, this signalman did not go the correct distance and the driver of the train was not keeping a good look out. The train crashed and several people were killed and D was tried for manslaughter. Held: If the defendant’s negligence mainly or substantially caused the accident, it was irrelevant that it might have been avoided if other persons had not been negligent. A defendant can still be liable even when other causes were present.

Answer 2

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. The courts have been required to consider the question of whether the chain of causation has been broken in a number of different contexts such as: * Medical negligence * Acts of a third party * Acts of the victim * Thin skull rule * Natural events

Answer 3

Facts: Smith stabbed the victim during a fight at their barracks and pierced his lung. Another soldier tried to carry him to the medical station but dropped him twice on the way. On his arrival it was not realised how seriously ill the victim was and he received treatment that was not only inappropriate but positively harmful and he died a couple of hours later. Held: Smith was convicted of murder, because it was held that his actions remained a substantial and operating cause. The medical negligence, while a cause, was not a sufficient cause to sever the chain of causation.

Answer 4

It seems to the court that, if at the time of death the original wound is still an operating cause and a substantial cause, then the death can properly be said to be the result of the wound, albeit that some other cause of death is also operating. Only if it can be said the original wounding is merely the setting in which another cause operates can it be said that the death does not result from the wound. Putting it another way, only if the second cause is so overwhelming as to make the original wound merely part of the history can it be said that death does not follow from the wound.

Answer 5

Facts: Cheshire shot the victim twice. Following extensive surgery the victim developed respiratory problems and required a tracheotomy tube to be inserted into his windpipe. Scar tissue formed over the tracheotomy hole and the victim found it difficult to breath. The medical staff dismissed this as anxiety. Eventually his windpipe became completely blocked and he died. At the time of his death, the victim’s original wounds had healed. Held: The Court of Appeal held that poor medical treatment did not break the chain of causation.

Answer 6

Even though negligence in the treatment of the victim was the immediate cause of his death, the jury should not regard it as excluding the responsibility of the defendant unless the negligent treatment was so independent of his acts, and in itself so potent in causing death, that they regard the contribution made by his acts as insignificant. Overall, the courts are reluctant to allow medical malpractice to break the chain of causation.

Answer 7

Facts: Using his pregnant girlfriend as a shield, Pagett shot at the police, who were attempting to arrest him for various serious offences. The police returned fire and killed the girl. The judge, directing the jurors on causation, stated that they had to be sure that the appellant had fired first at the officers and that that act caused the officers to fire back, with the result that the girl was killed. The jury also had to be satisfied that, in doing so, the police acted reasonably, either by way of self-defence or in the performance of their duties as police officers. The judge said that if they were not sure of those facts then they should acquit because the chain of causation, linking Pagett’s unlawful acts to the girl’s death, would be broken. The jury convicted Pagett, who appealed against his conviction.

Answer 8

Held: The Court of Appeal rejected the appeal and held that there may only be a break in the chain of causation if the actions of the third party were ‘free, deliberate and informed. This was not held to be the case here.’ Goff LJ was of the opinion that the police officers’ actions were neither free nor deliberate. Instead, he considered it to be a reasonable act performed for the purpose of self-preservation

Answer 9

There are three types of acts of the victim that we will consider: * ‘Fright and flight’ cases * Refusing medical treatment * Suicide

Answer 10

The issue arises in the context of the victim’s reaction to the defendant’s act. 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.

Answer 11

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.

Answer 12

Facts: The victim was a passenger in Roberts’ car. She was terrified by Roberts’ unwanted sexual advances and jumped out of the moving car, suffering injuries in the process. Held: Roberts was convicted of assault occasioning actual bodily harm. The Court of Appeal considered that the accused had caused her injuries and said that the victim’s reaction would only break the causation if it were an act that was ‘so daft’ that no reasonable person could have foreseen it.

Answer 13

Was it the natural result of what the alleged assailant 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? As it was put in one of the old cases, it had got to be shown to be his act, and if of course the victim does something so “daft” […] or so unexpected […] that no reasonable man could be expected to foresee it, then it is only in a very remote and unreal sense a consequence of his assault, it is really occasioned by a voluntary act on the part of the victim which could not reasonably be foreseen and which breaks the chain of causation between the assault and the harm or injury.

Answer 14

Facts: The appellants gave a lift to a hitchhiker and tried to rob the hitchhiker at knifepoint. The victim jumped from the moving car and died of head injuries. Held: The appellants were convicted of manslaughter.

Answer 15

There must be some proportionality between the gravity of the threat and the action of the deceased in seeking to escape from it […] [T]he deceased’s conduct […] [must] be something that a reasonable and responsible man in the assailant’s shoes would have foreseen […] [T]he nature of the threat is of importance in considering both the foreseeability of harm to the victim from the threat and the question whether the deceased’s conduct was proportionate to the threat, that is to say that it was within the ambit of reasonableness and not so daft as to make it his own voluntary act which amounted to a novus actus interveniens and consequently broke the chain of causation

Answer 16

The jury should consider two questions: 1. Whether it was reasonably foreseeable that some harm, albeit not serious harm, was likely to result from the threat itself 2. Secondly, whether the deceased’s reaction in jumping from the moving car was within the range of responses which might be expected from a victim placed in the situation which he was. The jury should bear in mind any particular characteristic of the victim and the fact that in the agony of the moment he may act without thought and deliberation […]

Answer 17

From the case of Roberts, in determining whether the victim’s action was a foreseeable mode of escape, the jury would essentially have the same knowledge as the defendant had at the time D committed the act. As the court in Williams and Davies approved the case of Roberts it is generally believed that the characteristics Stuart Smith LJ was referring to were those characteristics which would be visible to a reasonable man present at the time of the defendant’s act.

Answer 18

The courts have also considered what the position would be where the victim refuses medical treatment, which results in their death. We will consider three cases: * R v Blaue * R v Holland * R v Dear

Answer 19

Facts: Blaue stabbed a woman several times and pierced her lung. The victim refused to have a blood transfusion, as it was contrary to her religious beliefs. She was advised that without a transfusion she would die. She refused to have the transfusion and subsequently died. The defendant was convicted of manslaughter. He appealed against his conviction, arguing that the victim’s refusal to have a blood transfusion amounted to a novus actus interveniens. Held: This argument was rejected. Defendants must take their victims as they find them and that meant the whole person, in both mind and body.

Answer 20

Facts: The deceased was attacked by Holland and suffered a number of wounds, which included a severely cut finger. The surgeon advised that he should have the finger amputated in order to prevent the wound from becoming infected. The deceased ignored the surgeon’s advice. Several weeks later he contracted tetanus from the wound and died. The defendant argued that the cause of death was not the wound, but the refusal to accept treatment Held: The court held that this was no defence. It did not matter whether the wound was instantly mortal or whether it became the cause of death because the deceased refused the recommended treatment.

Answer 21

Facts: The appellant’s 12-year-old daughter told him that the victim had sexually assaulted her. The appellant repeatedly slashed the victim with a Stanley knife. Subsequent to receiving medical treatment, the victim’s wounds opened up and two days later the victim died. D claimed that the chain of causation had been broken because V had died by suicide, either by reopening his wounds or, the wounds having reopened naturally, by failing to take steps to staunch the consequent blood flow. Dear was convicted of murder.

Answer 22

The correct approach in the criminal law is to ask […] were the injuries by the defendant an operating and significant cause of death? That question, in our judgment, is necessarily answered, not by philosophical analysis, but by common sense according to all the circumstances of the particular case.

Answer 23

In the present case the cause of the deceased’s death was bleeding from the artery which the defendant had severed. Whether or not the resumption or continuation of that bleeding was deliberately caused by the deceased, the jury were entitled to find that the defendant’s conduct made an operative and significant contribution to the death.

Answer 24

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).

Answer 25

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).

Answer 26

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.

Answer 27

Facts: Hayward, who was in a rage, threatened his wife and chased her into the road. She collapsed and died. She was suffering from an abnormal thyroid condition, such that any combination of physical exertion and fear might lead to death. Held: It was held that Hayward had caused her death because he had to take her condition as he found it. See also R v Blaue (acts of the victim, refusal of medical treatment).

Answer 28

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.

Answer 29

When dealing with a situation that is similar to facts of previously decided cases, reference should be made to the relevant case for direction on what is required for the new intervening act to break the chain of causation. Usually this will be straightforward. However, in the event of new situations arising, the Court of Appeal in R v Girdler [2009] EWCA 2666 has directed use of common sense when deciding which test to use.

Answer 30

* Result crimes require that the conduct of the defendant cause a particular result. * There are two aspects to causation, both of which must be proved by the prosecution: - Factual causation: 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). - Legal causation: The defendant must be the ‘operating and substantial’ cause of the prohibited consequence (R v Pagett).

Answer 31

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 – R v Smith (William) [1826] 2 C&P 449: ‘Omission, without a duty, will not create an indictable offence

Answer 32

(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.

Answer 33

By: statute, special relationship, voluntary assumption, contract, the defendant creating a dangerous situation or public office

Answer 34

Under statutes, innumerable offences can be committed by an omission. Many examples can be found in the less serious/summary only offences. Such an example can be found in s 6(4) Road Traffic Act 1988, where it is an offence to fail to provide a specimen of breath.

Answer 35

Examples of special relationships are: * Doctors and patients * Parents and their children * Spouses

Answer 36

Held: D was held to be liable for the manslaughter of his wife who died as a result of broken bones suffered three weeks earlier after a fall. D had failed to summon medical assistance to help her. The basis of his liability, it seems, stemmed from his relationship with her, based on marriage.

Answer 37

Facts: Gibbons lived with his girlfriend, Proctor, together with his child, Nelly, and Proctor’s children from a previous relationship. Gibbons gave Proctor money for food for the family. Proctor deliberately starved Nelly to death.

Answer 38

Held: The Court of Appeal noted that Gibbons was living in the same house as Nelly. It said he must have been aware of the condition of his daughter, who was little more than a skeleton when she died. If he did not see her, then that is evidence from which the jury could have decided he did not care what was happening to her and had the mens rea for murder. Gibbons was convicted of his daughter’s murder based on breach of his duty as a father not to neglect her

Answer 39

Both children were certain to die in the absence of a surgical procedure to separate them. The operation would save one twin, but the parents would not give their consent. The judge observed that the parents had a legal duty to the twin who could be saved. By denying that twin the chance to live, they might be guilty of killing her under the principle in Gibbons and Proctor.

Answer 40

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. The basis on which the courts have held a voluntary assumption of a duty of care to exist is often factually specific as can be seen by the cases that follow.

Answer 41

If a person chooses to undertake the care of a person who is helpless either from infancy, mental illness or other infirmity, he is bound to execute that responsibility and if he by gross negligence allows him to die he is guilty of manslaughter (Per Brett J).

Answer 42

Held: Edith Proctor was also convicted of Nelly’s murder, on the basis that Proctor was living in the same household, in the role of Gibbons’ de facto wife. She was looking after ‘the family’ while Gibbons went out to work, and received money for housekeeping and food from Gibbons

Answer 43

Instan lived with her aunt, who was 73 years old. Her aunt gave Instan money to provide both of them with food. The aunt developed gangrene in her leg and became bedridden. Instan used the money to buy food for herself but did not give any to her aunt, nor did she summon medical assistance. The aunt died and Instan was convicted of her manslaughter due to voluntary assumption of a duty of care.

Answer 44

Facts: Stone lived with his mistress Dobinson. They were both of low intelligence and described as ‘inadequate’. They both accepted into their home Stone’s elderly, weak and anorexic sister, Fanny. They tried to make her eat but gave up. Eventually Fanny was confined to her bed and Stone and Dobinson failed to get medical assistance. As a result Fanny died.

Answer 45

Held: Stone and Dobinson were convicted of her manslaughter, and their convictions were upheld, on the basis that, although neither was under a duty imposed by law to care for an ailing relative, they had voluntarily assumed this duty upon themselves.

Answer 46

Facts: The victim was at R’s house. They were taking drugs. V became unconscious and R tried to revive him. He telephoned V’s mother the next day. R said that V was ill and sitting on R’s doorstep. V’s mother told R to take V inside and keep him warm. R agreed, but did not, returning to bed. Later V was found by a passer-by, taken to hospital and he died. The trial judge directed the jury that a duty of care could be assumed: V was a friend, V was in R’s house, R had attempted to revive him. The jury was told if they decided R had assumed this duty, they were entitled to decide whether by putting V outside R had breached that duty. The jury decided in the affirmative and R was convicted Held: The Court of Appeal followed the approach taken in Stone and Dobinson and upheld the conviction.

Answer 47

The duty can be owed by the defendant either to the party with whom the defendant is contracted or to a third party.

Answer 48

Facts: Pittwood was employed as a level-crossing gatekeeper. He failed to close the gate when a train was coming and a man was killed by the train. Held: Pittwood’s failure to close the gate could amount to the actus reus of manslaughter by omission, because he was under a contractual duty to do so when a train was approaching.

Answer 49

If a person accidently started a fire in a house, the person has a duty to take reasonable steps to counteract the dangerous situation created. The steps need only be reasonable, so a person would not be expected to risk their own life to save the lives of others, but they would be expected to take reasonable steps, such as summoning help, warning any occupants of the house that it is on fire, and so on.

Answer 50

Facts: Miller, a squatter, fell asleep in a bed whilst holding a lighted cigarette. He awoke to find the mattress smouldering. He realised it was his cigarette that had caused the fire, but all he did was to move to another room and go to sleep again. The house was damaged by fire. Held: Miller was convicted of arson (Criminal Damage Act 1971, s 1(1) and s 1(3)).

Answer 51

The House of Lords held that if someone inadvertently sets in motion a chain of events that causes the risk of damage, and that person becomes aware of what is happening and he can prevent further damage, his inaction or omission to do so can become an actus reus of criminal damage.

Answer 52

I see no rational ground for excluding from conduct capable of giving rise to criminal liability, conduct which consists of failing to take measures that lie within one’s power to counteract a danger that one has oneself created, if at the time of such conduct one’s state of mind is such as constitutes a necessary ingredient of the offence.

Answer 53

Facts: Gemma Evans, a 24-year-old woman, purchased heroin and supplied her 16-year-old sister, Carly. Carly self-injected in a house in which she resided with Evans and her mother (Andrea Townsend). After injecting the drug, she developed and complained of symptoms consistent with an overdose. Gemma Evans and Andrea Townsend were also heroin addicts, they knew the signs of an overdose and were fully aware of the dangers involved. They appreciated that Carly’s condition was very serious and indicative of an overdose

Answer 54

Evans said that she had seen that Carly’s lips had turned blue, that she was ‘in a mess’, and was incapable of responding to attempts to speak to her. Evans and Townsend decided not to seek medical assistance because they feared that they themselves and possibly Carly would get into trouble. Instead, they put Carly in bed with the hope that she would make a miraculous recovery. Although the women slept in the same room and checked on Carly occasionally, Carly died during the night. The medical evidence demonstrated that the cause of death was heroin poisoning. Evans and her mother were charged with gross negligence manslaughter.

Answer 55

Evans appealed against her conviction for gross negligence manslaughter. It was argued by the defence team that the case should have been withdrawn from the jury because the Crown failed to establish that Evans owed the victim a duty of care.

Answer 56

Held: The mother was convicted on the basis of her ‘familial duty or responsibility which marked her relationship with the deceased’ and which required her to take responsible steps to summon assistance for her young daughter once she realised she was critically ill and in need of urgent medical attention. Since Evans was an older half-sister, the court decided that she did not come within the purview of the familial duty doctrine. An adult sibling is not regarded as the constructive guardian of younger siblings.

Answer 57

However, the Court of Appeal held that Evans had a duty of care because she had created a dangerous situation and failed to do anything to remedy it. This overlooks the fact that Evans’s sister created the dangerous situation by making the independent choice to self-inject. In effect, Evans was convicted on the grounds that she had helped her sister to create a dangerous situation for herself by supplying her with deadly drugs, she was aware that her sister’s act of self-injection had put her in peril and she failed to summon help when she was in a position to do so

Answer 58

Facts: D was a police constable, on duty and in uniform, who in the early hours of the morning saw a man who had been evicted from a club being kicked so badly that he later died. D did not attempt to stop the disturbance and when the incident ceased, he drove off. Held: He was guilty of wilfully neglecting to perform his duty.

Answer 59

* 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. For example, if V self-injects dangerous drugs into their own arm and suffers an overdose, the cause of V’s death is their own act of self-injection. The drugs are causing V to die. But if the supplier of the drug is present when V overdoses, the supplier will have a duty to try to uncause what V has caused.

Answer 60

* The general rule is that a defendant cannot be criminally liable for a failure to act (R v Smith (William)). We examined the circumstances in which a defendant may commit the actus reus of an offence and be convicted because they have omitted or failed to act when under a duty to do so

Answer 61

-Statutory duty; - Special relationship; - Voluntary assumption of a duty if care; - Contractual duty; - Creating a dangerous situation; and - Public office

Answer 62

‘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’. However, this phrase can be quite misleading, as it does not necessarily mean that the defendant is morally guilty, merely that in law the defendant has the required mental element for the crime.

Answer 63

The term ‘mens rea’ covers a number of mental states that may need to be proved in relation to the actus reus of a crime. It is possible for a particular actus reus to have more than one type of mens rea required in order to complete the offence. Example is Burglary

Answer 64

The state of mind that the prosecution must prove to secure a conviction will vary from crime to crime. You will need to familiarise yourself with the various types of mens rea and learn which type is required to accompany the actus reus for each crime. What follows is a brief summary of some of the differing types of mens rea

Answer 65

Some offences require that the defendant must have intended a specified result. The obvious example of this is murder, where the defendant must intend to kill the victim or intend to cause the victim serious harm: R v Vickers [1957] 2 QB 664

Answer 66

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.

Answer 67

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

Answer 68

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.

Answer 69

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.

Answer 70

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.

Answer 71

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.

Answer 72

In this case, the distinction between gross negligence and civil negligence was described: […] in order to establish criminal liability the facts must be such that, in the opinion of the jury, the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others as to amount to a crime against the state and conduct deserving punishment.

Answer 73

There is some opinion that negligence should not feature at all, as it requires judging a person against the state of mind of a non-existent, hypothetical person rather than their own state of mind, which is surely what mens rea requires.

Answer 74

The concept of the reasonable man as providing the standard by which the liability of real persons for their conduct is to be determined is a concept of civil law, particularly in relation to the tort of negligence; the obtrusion into criminal law of conformity with the notional conduct of the reasonable man as relevant to criminal liability, though not unknown, is exceptional, and should not be lightly extended.

Answer 75

* ‘Mens rea’ means ‘guilty mind’. * This section contained an overview of some common types of mens rea: - Intention: Direct (the defendant’s aim) and indirect (death or serious injury was a virtual certainty and the defendant knew this, even if it was not the primary motive); - Recklessness: The defendant saw a risk of harm, went ahead anyway and the risk was an unjustified one to take; - Knowledge and belief; - Dishonesty; and - Negligence.

Answer 76

It is important to remember that any discussion concerning whether a defendant has a particular form of mens rea must, in practice, be linked to a specific act or consequence as required for the offence in question (ie the actus reus).

Answer 77

It is never acceptable to simply state mens rea in the abstract. For example, to be convicted of committing criminal damage, the defendant must either intend to destroy/damage property belong to another, or be reckless as to the destruction/damage of the property belonging to another.

Answer 78

There are two types of intention in criminal law: (a) Direct intent; and (b) Oblique intent (also known as indirect intent). We will also consider the role of motive in criminal law.

Answer 79

Direct intent is where the consequence is what the defendant aims to happen. It is the purpose or objective of D’s act. If the consequence is D’s purpose, D intends it even if D’s chances of success are slim. This is a wholly subjective test, from the defendant’s point of view. For example, if the defendant, wanting to kill, shoots at the victim half a mile away knowing that they could easily miss, D still intends to kill because that is what D is trying to achieve. The result has formed at least part of the reason for D acting.

Answer 80

Lord Bridge made it clear that it was the jury’s task to decide on the matter of intention. He stated that the word should be given its ordinary meaning and that judges should generally avoid defining the term intention, beyond explaining that it differs from ‘desire’ and ‘motive’.

Answer 81

* Direct intention is the most common type of intention and the one you should consider first.

Answer 82

The golden rule should be that, when directing a jury on the mental element necessary in a crime of specific intent, the judge should avoid any elaboration or paraphrase of what it meant by intent, and leave it to the jury’s good sense to decide whether the accused acted with necessary intent, unless the judge is convinced that, on the facts and having regard to the way the case has been presented to the jury in evidence and argument, some further elaboration is strictly necessary to avoid misunderstanding.

Answer 83

Case law has recognised that a defendant may ‘intend’ a result because it is the purpose of D’s act.

Answer 84

Whenever considering whether the defendant intended to commit the actus reus, a trial judge should simply direct the jury to convict the defendant if they are satisfied that it was the defendant’s aim or purpose to commit the actus reus.

Answer 85

The jury must simply consider whether the defendant intended (was it D’s aim/purpose) to kill or cause serious harm when D committed the actus reus. Judges should refrain from giving juries any further elaboration as to what this means. In reality, this happens in the vast majority of cases. This is particularly true in cases where there has been a direct attack upon the victim, and evidence is available to show that the defendant wanted the actual consequence to happen.

Answer 86

Elaborate on the meaning of intention: * The jury has specifically requested further guidance on the issue, in which case further direction should be given to them. * The trial judge is of the opinion that the facts themselves, or the presentation of evidence in court, has meant that the jury would benefit from further guidance.

Answer 87

It has been suggested by Lord Bridge in Moloney that such cases would be ‘rare’. However, he did not make any attempt to clarify what sort of cases would fall into this ‘rare’ category.

Answer 88

By way of example, it has since been suggested that it may sometimes be necessary to give a jury an elaborated direction on the meaning of intention in those relatively rare cases where the defendant does an act which is manifestly dangerous, and as a result someone dies, but where the primary desire or motive may not have been to harm that person.

Answer 89

It is murder trials that have provided the forum for discussion of this issue in the past, although there is no reason why this could not become an issue in any offence where intention is the only form of mens rea available. In reality, the number of cases where extended guidance is given to a jury is extremely small.

Answer 90

Oblique intent is where the consequence is not the defendant’s purpose but rather a side effect that D accepts as an inevitable or certain accompaniment to D’s direct intention. The consequence here does not have to be ‘desired’. Indeed, the defendant may even regret that this incidental consequence will occur.

Answer 91

Where the charge is murder and in the rare cases where the simple direction is not enough, the jury should be directed that they are not entitled to find the necessary intention unless they feel sure that the death or serious bodily harm was a virtual certainty (barring some unforeseen event) as a result of the defendant’s action and that the defendant appreciated that such was the case

Answer 92

Lord Bridge stated that such a state of mind could only be evidence of intention

Answer 93

The jury are still to be instructed that they are not entitled to find the necessary intention unless they find foresight of virtual certainty, not that they must find the necessary intention in such a case

Answer 94

In this case, the trial judge had directed the jury to find that intention to kill was proved if they were satisfied that the defendant had appreciated that there was a virtual certainty of death. The Court of Appeal did not consider that Lord Steyn had changed the law, and said the foresight of virtual certainty was still only evidence of intention. The law has not yet reached a definition of intent in murder in terms of appreciation of a virtual certainty.

Answer 95

Some of us hoped that a perceptive jury would ask some unlucky judge what was the state of mind they were required to find proved which was not purpose but was something more than foresight of virtual certainty? – a question to which there appears to be no answer.

Answer 96

(1) […] a person acts (a) “intentionally” with respect to a result when – (i) it is his purpose to cause it, or (ii) although it is not his purpose to cause it, he knows that it would occur in the ordinary course of events if he were to succeed in his purpose of causing some other result.

Answer 97

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.

Answer 98

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.

Answer 99

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.

Answer 100

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.

Answer 101

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.

Answer 102

Suppose D puts a bomb in a cargo aeroplane which he has insured and the bomb is timed to go off mid-flight. It is D’s aim/direct intention to claim for the aircraft on his insurance. This is his motive in placing the bomb in the aeroplane. However, the destruction of the aeroplane is the means to achieving his aim, so destroying the aeroplane is also his direct intention. The death of the pilot is an inevitable side effect of what he has done, but was not necessary for him to achieve his aim, so this is his oblique intention.

Answer 103

Facts: The appellants had wished to demonstrate their opposition to nuclear weapons. They had planned a non-violent action to immobilise an aircraft at an RAF station for a period of six hours. They were convicted of conspiracy to commit a breach of s 1 Official Secrets Act 1911, namely to enter a prohibited place for ‘a purpose prejudicial to the safety or interests of the state’.

Answer 104

Held: On appeal against conviction, Radcliffe LJ agreed with the trial judge’s direction to the jury that the appellants had made their entry for two separate purposes: […] an immediate purpose of obstructing the airfield, and a further or long-term purpose of inducing or compelling the government to abandon nuclear weapons in the true interests of the state

Answer 105

Motive can be used as evidence of intention. Robert Goff LJ stated in the context of poisoning offences under s24 Offences Against the Person Act 1861. We have no doubt that, in considering whether in any particular case the accused acted “with intent to injure”.

Answer 106

The accused may, in one case, administer the noxious thing with the intent that it would itself injure the person in question; but in another case he may have an ulterior motive, as for example when he administers a sleeping pill to a woman with an intent to rape her when she is comatose. In either case he will, in our judgment, have an intent to injure the person in question, within the words in the section.

Answer 107

* There are two types of intention in criminal law: direct intent and oblique intent. * When advising juries as to the meaning of intention, many judges have been keen to state that, in a majority of cases, no guidance as to its meaning should be given and rather it should be left to the common sense of the jury. Presumably, the reason behind this is that ‘intention’ is an ordinary word in everyday usage. * Direct intent is where the consequence is what the defendant, subjectively, aims to happen (R v Moloney). * 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). * Oblique intent is not intention but evidence of it (R v Matthews & Alleyne). * Motive is not the same as intention (DPP v Chandler) but can be used as evidence of intention (R v Hill).

Answer 108

We are now moving on to consider those offences that can be carried out with reckless mens rea.

Answer 109

Where the defendant does not intend to destroy or damage property belonging to another, D can still be liable where D recklessly destroys or damages property belonging to another (s 1(1) Criminal Damage Act 1971).

Answer 110

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.

Answer 111

If the conduct has no social utility—for example, a game of ‘Russian roulette’ or an armed robbery—the slightest possibility of any harm should be enough. If the act has a high degree of social utility—for example, the performance of a surgical operation—then only a very high degree of probability of grave harm that outweighs the social utility will suffice to condemn it as reckless

Answer 112

Key case: R v G and another [2003] UKHL 50 The current definition of recklessness comes from this case and was given in the context of criminal damage. Lord Bingham, with whom the other judges agreed, approved the following definition of recklessness laid down in Clause 18 of the Law Commission’s Draft Criminal Code (1989).

Answer 113

A person acts recklessly within the meaning of section 1 of the Criminal Damage Act 1971 with respect to – (i) a circumstance when he is aware of a risk that it exists or will exist; (ii) a result when he is aware of a risk that it will occur; and it is, in the circumstances known to him, unreasonable to take the risk.

Answer 114

In the circumstances known to him, it was unreasonable to take the risk. In deciding whether the risk is a reasonable one to take, the jury will consider the social utility of what the defendant is doing. If there is no social utility at all, then the jury will probably decide that even a tiny risk is unjustified.

Answer 115

For example, if the accused throws a lighted cigarette into an empty wastepaper bin which, unknown to D, contains a small quantity of flammable fluid put there by someone else, the jury must ignore the presence of this flammable fluid when answering the second question.

Answer 116

* Recklessness is a form of mens rea or guilty mind. * Examples of offences that have recklessness as a form of mens rea are: assault and basic criminal damage. * According to R v G, a defendant is recklessness when: - 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.

Answer 117

This section considers some additional principles of criminal liability such as the rules on coincidence, transferred malice and mistake.

Answer 118

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.

Answer 119

The courts have developed some flexible interpretations to get round the requirement for coincidence of actus reus (guilty act) and mens rea (criminal intention): * The continuing act theory; and * The one transaction principle.

Answer 120

Facts: Fagan accidentally drove onto a policeman’s foot. The policeman asked him to move off his foot, but Fagan put the handbrake on and refused to do so. He was charged with assaulting a police officer in the execution of his duty. At the time of driving onto the foot, which was the actus reus of the crime, he did not have the mens rea.

Answer 121

Held: However, the Divisional Court held that the assault involved a battery and this battery continued after the car came to rest. The actus reus was a continuing act, and it was enough that Fagan had the mens rea at some time during its continuance.

Answer 122

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

Answer 123

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.

Answer 124

Facts: The appellants hit V over the head with intent to kill him. Thinking that they had killed him, they rolled his body over the cliff to make his death appear accidental. It was later discovered that V died from exposure at the foot of the clif

Answer 125

Held: The appellants had the mens rea for murder when they hit V, but not when they did the act that caused his death, as they thought he was already dead at this point. The Privy Council said that because the appellants’ acts were performed in pursuance of an antecedent plan to kill the victim, the series of acts could not be divided up. They formed one transaction and it was enough that the mens rea existed at some point during that transaction.

Answer 126

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.

Answer 127

D assaulted his wife, hitting her on the jaw and knocking her unconscious. He then attempted to drag her home, and in doing so he accidentally dropped her and she fractured her skull on the pavement. She died from the fracture to the skull. D was convicted of manslaughter and the conviction was upheld. The court said that the unlawful act and the act causing death were all part of the ‘same transaction’

Answer 128

Lord Lane stated that it did not matter that there was no preconceived plan and that the defendant knew that his wife was still alive. He said that the transaction continued as long as the defendant was trying to cover up the crime he believed he had committed.

Answer 129

D pushed V down some stairs. He then pulled V back up the stairs by using rope tied around her neck. He also cut her throat. It was unclear whether she had died from strangulation or the stabbing. The court said that it was unnecessary to prove which act caused the death

Answer 130

If an accused kills another by one or other of two or more different acts each of which, if it caused the death, is a sufficient act to establish manslaughter, is it necessary in order to found a conviction to prove which act caused the death? The answer to that question is no, it is not necessary to found a conviction to prove which act caused the death

Answer 131

Transferred malice: Transferred ‘malice’ is when D’s mens rea is transferred from the intended harm to the actual harm.

Answer 132

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

Answer 133

Facts: L aimed a blow at C with a belt, striking C slightly. The belt then recoiled, hitting V in the face and wounding her severely. Held: L’s appeal against his conviction under s 20 Offences Against the Person Act 1861 was dismissed. The court held that his intention to injure C could be transferred to V.

Answer 134

Transferred malice was applied to manslaughter. The defendant assaulted A, aged 72, causing him to fall on to B, aged 89, ultimately causing her death.

Answer 135

Facts: The accused threw a stone at a crowd of people. He missed them but broke a glass window behind them. It was found that he intended to hit the people but not the window. Had he injured someone, he could have been convicted under s 20 Offences Against the Person Act 1861.

Answer 136

Held: The court 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

Answer 137

Therefore, transferred malice will not assist where the defendant has the mens rea for one crime and the actus reus for another. The defendant must have the mens rea for the crime charged. It is not possible to mix and match the mens rea of different crimes.

Answer 138

Where the defendant makes a mistake, the effect this will have on criminal liability depends upon the type of mistake. We will consider: * Ignorance of the law; and * Mistakes that negate the mens rea.

Answer 139

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.

Answer 140

D was convicted of an offence created by a statute when he was on the high seas. He committed it before the end of his voyage when he could not possibly have known of the statute.

Answer 141

A defendant might make a mistake as to some element of the actus reus, which will prevent D from having the mens rea. This could be a mistake of fact, for example 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.

Answer 142

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.

Answer 143

Facts: Smith was the tenant of a flat. He installed a stereo system and, with the consent of the landlady, added some roof and wall panels to hide the wiring. These, being affixed to the building, became the property of the landlady. Not knowing about this law, and believing them to be his own property, Smith damaged the panels when he removed his stereo system. Held: The Court of Appeal quashed his conviction because he did not intentionally or recklessly damage property belonging to another as required by the Criminal Damage Act 1971.

Answer 144

* Coincidence of actus reus and mens rea - The continuing act theory - The one transaction principle * Transferred malice * Mistake

Answer 145

For a defendant to be criminally liable, they must have the actus reus and mens rea of the relevant offence and the absence of a valid defence- a justification or excuse for D’s behaviour. General defences are available to almost any crime, such as self-defence and intoxication

Answer 146

These partial defences are covered in other elements. There are lots of other defences, general and specific, in addition to those covered in this element such as insanity/ automatism, duress, infancy and necessity.

Answer 147

Some defences only operate in relation to specific crimes, such as the special defences of loss of control and diminished responsibility which are available in relation to murder only.

Answer 148

The defendant may avoid criminal liability if intoxicated with drugs or alcohol. A defendant is more likely to be successful with an intoxication defence if involuntarily intoxicated rather than voluntarily intoxicated

Answer 149

With involuntary intoxication (such as being drugged without consent), the court will ask whether the defendant form the mens rea even though intoxicated (Kingston [1995] 2 AC 355).

Answer 150

With voluntary intoxication (such as getting drunk on alcohol), the rules are a little more complex. Essentially, with less serious crimes of basic intent (where recklessness is a form of mens rea available), the defendant will be deemed reckless if they would have foresaw the risk of harm if sober (Coley, McGhee and Harris [2013] EWCA Crim 233). Other elements cover these rules in more detail.

Answer 151

* 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).

Answer 152

* 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.

Answer 153

Self-defence can be used in protection of yourself, another or property.

Answer 154

* 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.

Answer 155

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.

Answer 156

This section considered some general defences in overview which can allow a defendant to avoid criminal liability:

Answer 157

* With involuntary intoxication the court will ask whether the defendant form the mens rea even though intoxicated (Kingston). With voluntary intoxication and less serious crimes of basic intent, the defendant will be deemed reckless if they would have foresaw the risk of harm if sober (Coley, McGhee and Harris)

Answer 158

* 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). If D intended to cause the offence of actual bodily harm or above, consent is not available (R v Brown) unless some of the public interest exceptions apply: medical treatment, sport, horseplay, tattooing/personal adornment and sexual gratification/accidental infliction of harm

Answer 159

* A defendant is entitled to rely on self-defence if protecting themselves, another or property. The defendant must honestly believe that the use of force is necessary and the level of force the defendant uses in response is objectively reasonable in the circumstances as the defendant believes them to be

Answer 160

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.

Answer 161

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

Answer 162

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.

Answer 163

Murder carries a mandatory life sentence pursuant to the Murder (Abolition of Death Penalty) Act 1965. The judge has no discretion in sentencing other than to recommend a minimum term before a prisoner can be released on licence.

Answer 164

Unlawful homicide: 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 […]’.

Answer 165

The killing must be unlawful. It will be lawful to kill another if it falls into one of the following categories: * Killing enemy soldiers in battle; * Advancement of justice: An example of this is the lawful application of the death penalty. Although we no longer have the death penalty in this country there are occasions when person could be tried in this country for a killing which occurred in a country which does have the death penalty; * Self-defence: Killing will be lawful where the force used was reasonable and necessary to prevent crime or protect self, others or property.

Answer 166

Murder is a result crime which requires the prosecution to show that the defendant caused the death of the victim. To do this, the tests of factual and legal causation must be satisfied. Other elements cover causation in detail. In brief these tests are: * Factual cause: ‘But for’ the acts or omissions of the defendant, the relevant consequence would not have occurred in the way that it did (R v White[1910] 2 KB 124). * Legal cause: The defendant’s act must be the ‘substantial’ cause of the prohibited harm. Substantial does not mean it has to be the only or principal cause but it needs to be more than minimal (R v Hughes[2013] UKSC 56).

Answer 167

A reasonable person in being The victim of a homicide must be a person, a human being. It is not possible to murder a corpse. . At the moment which the brain dies, the person will be held to have died. It is the unanimous belief of the medical profession that without the brain the body simply cannot survive. A person is ‘in being’ when born alive and capable of independent life. The court found it necessary to determine when a person becomes ‘in being’ in these cases.

Answer 168

Littledale J made it clear that the child must be fully expelled from the mother’s body and born alive: […] the being born must mean that the whole body is brought into the world; and it is not sufficient that the child expires in the progress of the birth. Whether the child was born alive or not depends mainly upon the evidence of the medical men

Answer 169

This case indicated that it was not necessary for the umbilical cord between mother and child to have been cut.

Answer 170

A pregnant woman was stabbed in the abdomen, her child was born prematurely and died. The child was not a live person when stabbed and therefore this could not be murder.

Answer 171

Held: Lord Thomas CJ, said: The law is now clear. An offender can generally be tried for murder wherever committed if he is a British subject, or, if not a British subject, the murder was committed within England and Wales. The reference to “the Queen’s[/King’s] peace”, as originally dealt with in the cases to which we have referred, went essentially to jurisdiction

Answer 172

Malice aforethought: 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.

Answer 173

Facts: In Vickers, the defendant broke into a shop intending to steal from it. He was disturbed by the elderly lady who lived above the shop. Vickers struck her and kicked her in the face, as a result of which she died. Vickers was convicted of murder. He appealed against his conviction on the grounds that the Homicide Act 1957 had removed an intention to cause grievous bodily harm as a head of mens rea for murder. The defence argued that, if Vickers intended to cause her grievous bodily harm, he was committing an offence under s 18 Offences Against the Person Act 1861, ie another offence and therefore, under the s 1(1) Homicide Act 1957, the offence of murder had to be disregarded. Held: This argument was rejected by the Court of Appeal, which confirmed the mens rea of murder as intention to kill or intention to cause grievous bodily harm.

Answer 174

* 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).

Answer 175

Murder is a common law offence defined as the unlawful killing of a reasonable person who is in being under the King’s peace with malice aforethought. This element considered what the prosecution must prove for the actus reus of murder: * Unlawful: The killing was not done in self-defence for example; * Killing: The defendant caused the victim’s death in fact (White) and in law (Hughes); * Human being: The victim was alive and capable of independent life before their death (Poulton); * King’s peace: The murder was committed within the legal jurisdiction of the courts of England and Wales (Adebolajo).

Answer 176

* Intention to kill (express malice); or * Intention to cause grievous bodily harm (implied malice) (Vickers). Grievous bodily harm means ‘serious harm’ (Saunders).