Elements of criminal law

Question 1

What is burden of proof in criminal law ?

Answer 1

Beyond all reasonable doubt

Question 2

Woolmington v DPP 1935

Answer 2

Reginald woolmington was a 21 year old farm labourer from Castletown Dorset. He married 17 year old violet in August 1934. She gave birth to his child in October. Shortly after, the couple fell out. On 22nd November 1934 , violet left the matrimonial home to live with her mother.
On 10 December Reginald stole a double barrelled shot gun and cartridges from his employer and sawed off the barrel. He then cycled to his mother and laws house where he shot and killed violet. He was arrested on 23rd January 1935 and was charged with murder.
Woolmingtons defence was that he did not intend to kill and thus lacked the necessary men’s rea. Specifically, he claimed that he wanted to win her back and planned to scare her by threatening to kill himself if she refused to. He had attempted to shower her the gun which discharged accidentally killing her instantly.

Question 3

R v Mitchell 1983

Answer 3

D tried to push into a queue in the post office. A 72 year old man told him off for this. D punched this man, causing him to stagger backwards into an 89 year old women. The women was knocked over and injured, and a few days later dies from her injuries.
D was convicted of unlawful act manslaughter. The man who had been punched and fallen against the women was not liable for the act.

Question 4

R v larsonneur

Answer 4

Involuntariness
The defendant was a French national who had entered the uk lawfully but was given only limited permission to remain in the country. At the end of that period the defendant left England not to return to France but to travel to the Irish free state.
The Irish authorities made a deportation order against her and she was forcibly removed from Ireland and returned to the uk. On arrival in England the defendant was charged under the aliens order 1920 with being found in the uk whilst not having permission to enter the country.
The defendant was convicted, and appealed on the basis that her return to the uk had not been from her own free will in that she had forcibly been taken to England by the immigration authorities. The court of appeal dismissed her appeal on the simple basis that the prosecution had proved the facts necessary for a conviction.

Question 5

Ommission

Answer 5

Failure to act
Will be held criminally liable to failing to act where :
There is a duty created by the statute
They have a contractual duty to act
There is a duty imposed by their official position
They have voluntarily accepted responsibility for another
They have created a dangerous situation
There is a special relationship

Question 6

Duty created by statute

Answer 6

Road traffic act failure to provide breath specimen when required to stop and report a road traffic accident
Children and young persons act 1993 for failure to send a child to school or to not provide food , clothes and lodgings .

Question 7

Contractual duty to act

Answer 7

Contained in the person contract eg a lifeguard when he’s on duty

Question 8

Pittwood 1902

Answer 8

Pittwood was a railway employee with responsibility to open and shut the gates on the railway crossing. He failed to shut them and went on his break. A hay cart was driving a cross and hit by a train. The driver of the hay cart was killed and Pittwood was found criminally liable.

Question 9

Special relationship

Answer 9

• this is usually created in a parent child relationship - a parent has a duty of care for their children.

Question 10

Khan 1988

Answer 10

Drug dealer was found not to have a duty of care to his clients and a manslaughter conviction was quashed.

Question 11

Gibbins and proctor 1918

Answer 11

Gibbins, and several of his children from a previous marriage , lived together with his partner proctor. The 7 year old daughter was kept separate from the other children and starved to death. The court held that the father had a duty of care for his child and proctor had also taken the responsibility to care for the child. The failure to feed her led to them both being convicted of murder.

Question 12

Voluntary acceptance of responsibility for another

Answer 12

• this duty is often linked with the duty that can be imposed by a special relationship like your partner child

Question 13

Stone and dobinson 1977

Answer 13

Both defendants agreed to care for stones sister , Fanny who came to live with them . Fanny was anorexic and eventually became bedridden and unable to care for herself. The defendants were elderly and of low intelligence. Although they tried to get help for Fanny, she eventually, died. The court held them guilty of manslaughter as they owed Fanny a duty of care and failed in that duty.

Question 14

R v Evans

Answer 14

More recent case of voluntary acceptance of responsibility for another.
The victim v aged 16 and a heroin addict , lived with her mother and older half sister . The half sister d brought some heroin and gave it to v to self inject . Later it became obvious that v had overdosed. Neither the mother nor the half sister tried tried to get help. Instead they put v into bed hoping she would recover.
Both the mother and d were convicted of gross negligence manslaughter . The mother clearly owed a duty of care to the v as she was her daughter . D appealed stating she did not owe a duty of care to her sister . The coa upheld the conviction on the basis that d had created a state of affairs which she knew or ought to have known was threatening the life of v and therefore owed her a duty of care.

Question 15

What is duty imposed by official position ?

Answer 15

This can be imposed where a person is guilty of misconduct .
Like police officer

Question 16

Dytham 1979

Answer 16

An on duty police officer saw a man being thrown out of a night club and being kicked to death by three men. He didn’t intervene or get help and told a bystander he was going off duty . He walked away from the scene.m
He was found guilty of misconduct in a public offence . He was guilty of will fault and without reasonable excuse neglecting to perform his duty.

Question 17

Miller 1983

Answer 17

Creation of a dangerous situation
A squatter had fallen asleep smoking a cigarette. He woke up to find his mattress on fire but instead of putting it out or summoning help ,m he got up and moved to another room and went to sleep again. He was found guilty of arson . Th issue was not setting the fire but leaving the room when he discovered the fire.

Question 18

Santana - Bermudez 2003

Answer 18

Policewomen was conducting a search of a suspect . She asked if he had any needles or sharp objects in his pockets . He said no she put her hand in his pocket and straight onto a needle causing bleeding . He was convicted of Abh . His Failure to warn her was sufficient for the Actus reus of Abh as he knew that he was creating a dangerous situation.

Question 19

What is duty of doctors - ommissions ?

Answer 19

Treatment that is in the patients best interest is not considered to be an an omission (a failure to act where there is a legal duty to do so so )therefore not the Actus reus.

Question 20

Airedale NHS trust v bland 1993

Answer 20

Anthony bland had been crushed in the Hillsborough stadium disaster and was on a life support machine with severe brain damage and in a persistent vegetative state. After three years the doctors applied to the courts for an order to allow them to stop feeding him which. Would obviously lead to his death . The court held that this was in Blands best interest,.

Question 21

Involuntary manslaughter and omissions

Answer 21

• involuntary manslaughter can be committed either by an unlawful and dangerous act or by gross negligence.
• unlawful and dangerous act manslaughter requires a positive act and cannot be committed by an omission.

Question 22

Lowe 1973

Answer 22

Defendant was of low intelligence . He has a nine week old baby who became ill and died he said he had told the mother to take the child to the doctor but had done nothing further, he was convicted of manslaughter but this was quashed on appeal because there was no unlawful and dangerous act. Lowe should have been charged with gross negligence
Manslaughter which can be committed by omission because he owed the child a duty of care.

Question 23

What are different levels of men’s Rea ?

Answer 23

Intention
Recklessness
Negligence

Question 24

What is specific intention?

Answer 24

• intention is always subjective. The court must believe that the defendant desired the specific consequences of the actions.
  The defendant motive is irrelevant when deciding intention.
  Defined by the courts in mohann1975
  “ a decision to bring about, in so far as it lies within the accused’s power the prohibited consequence no matter whether the accused desired that consequence of his act or not .

Question 25

What is direct intention ?

Answer 25

- the defendant wants a result and carries out an act to achieve it. - generally this is easier to prove based on the circumstances of the crime. This type of intention has been built up through case law largely based on the criminal justice act 1967 s8

Question 26

What is indirect / oblique intention?

Answer 26

With indirect intention, the defendant intends one thing but another things happens .. the issue has been whether the defendant foresaw the consequences of his actions. Wooolins threw baby at wall didn’t intend death but virtually certain it was going to happen. - the defendant doesn’t want the result that occurs but realises that in acting as he does that there is a possibility that it will happen the outcome is virtually certain. - the question of whether indirect / oblique intention exists is complicated, it has been confused by a variety of model directions from different judges . It is for the jury to decide whether oblique intention exists based on the evidence as presented to them. It is subjective notion based on what the jury believe that the defendant knew or foresaw at the time of the crime.

Question 27

Nedrick 1986

Answer 27

The defendant poured paraffin through a women’s letter box and set it alight . A child died in the ensuing fire

Question 28

Woollin 1998

Answer 28

- the defendant threw his three month old baby towards the pram which was by the wall. The baby suffered head injuries and died. The court dismissed the two questions from nedrick but used the model directions changing the word infer to find as they felt this would clarify the law.

Question 29

Matthew & Alleyne 2003

Answer 29

Defendants dropped the victim 25 feet off a bridge into a river despite him telling them that he couldn’t swim . The victim tried to make his way towards the riverbank but the defendants left before he reached it and he drowned. Following woolin , foresight of consequences is not intention but is a rule of evidence. If the jury decide the defendant foresaw death or really serious injury as virtual certainty, then they are entitled to find intention. But are not obligated to do so. Legal principle : foreseeing death or serious injury means that the jury are entitled to find intention.

Question 30

Define recklessness

Answer 30

A situation where the defendant knows that there is a risk that his actions will lead to harm but goes on to take the risk regardless. This is a lower form of men’s Rea from intention.first arose in case of Cunningham

Question 31

Cunningham 1957

Answer 31

The defendant tore a gas metre off a wall to steal the money from it . The gas leaked into the next door where his prospective mother in law lived. The women became very ill as a result . Cunningham was charged with maliciously administering a noxious thing under the offences against the persons act 1981 . He was acquitted because he did not intend to cause any harm and didn’t therefore realise he was taking a risk.

Question 32

What was found within Cunningham’s case?

Answer 32

- the court of appeal looked at the word maliciously and decided that it meant intentionally or recklessly . They stated that recklessness arose where the accused has foreseen that the particular kind of harm might be done yet has gone on to take the risk of it . The question was whether Cunningham realised there was a risk of the gas harming anyone and still went ahead with his plans. The Cunningham case led to what has become known as Cunningham recklessness. This type of recklessness is subjective as it is based on what the defendant actually realised or foresaw was a risk at the time of the offence not on what he ought to have foreseen. As a result of Cunningham any act which contained the word maliciously was taken to mean recklessly . I’m 1971 the criminal damage act was passed this act replaced the malicious damage act 1861 and replaced the word malicious with reckless. However no clear definition of the word reckless was given in the act so the courts continued to appply the principles in Cunningham .

Question 33

Stephenson 1979

Answer 33

Stephenson was a schizophrenic. He was sleeping in a haystack and decided to light a fire to keep warm . He caused £300 damage and was prosecuted. The court held that his schizophrenia prevented him from realising that he had created a risk that would have been foreseen by a reasonable man. The subjective test was therefore applied - ie based on what Stephenson actually foresaw. Courts continued to apply this test till 1982

Question 34

What house lords do in 1982 ?

Answer 34

Decided on two cases on the same day. The decisions in these cases Caldwell and Lawrence created a lot of confusion in this area of law for quite a number of years . They led to what is known as Caldwell recklessness.

Question 35

Caldwell 1982

Answer 35

Caldwell was not happy about having been dismissed from his job in a hotel. when he was very drunk he broke a window on the ground floor and started a fire. The fire was put out very quickly and no-one was harmed. Caldwell was charged with criminal damage and convicted. lord diplock stated: " that the only person who knows what the accused's mental processes were at the time of committing the crime is the accused himself and probably not even he can them accurately when rage or excitement under which he acted has passed or he has sobered u if he were under the influence of drink at the end of relevant time" Caldwell appealed and the case finally reached the house of lords

Question 36

Lord Diplock created a two stage test that someone is reckless under the criminal damage act 1971 if;

Answer 36

1.He does an act which in fact creates an obvious risk that property will be destroyed or damaged - objective test- based on what a reasonable man would have seen was a risk 2.When he does the act he either has not given any thought to the possibility of their being any such risk or has recognised that there was some risk involved and has nonetheless gone on to do it . the subjective test from Cunningham - the decision in Caldwell led to considerable difficulties - think back to the Stephenson case would a reasonable man have foreseen the risk ? should Stephenson been convicted ? - the decision in Caldwell was heavily criticised but was applied as it was a precedent from the house of lords. it did however cause considerable injustice.

Question 37

Elliot - v - C( A minor) 1983

Answer 37

The defendant was a 14 year old girl with learning difficulties. She was playing with white spirit and matches in a garden shed which was destroyed in the fire that followed. She gave no thought to the risk but was not capable of appreciating the risk anyway due to her learning difficulties. She was found guilty because the court was bound by the decision in Caldwell.

Question 38

r v g and another 2003

Answer 38

Two boys, aged 10 &11 entered the back yard of a shop and set fire to some newspapers. they put the newspapers under a wheelie bin and left the premises without checking the fire had gone out. The fire spread and caused over£1m worth of damage. The Caldwell precedent was applied by the crown court and by the court of appeal .however a further appeal was allowed to the house of lords. this changed the use of Caldwell.

Question 39

what was the changed use of Caldwell?

Answer 39

- the house of lords reversed the court of appeals decisions and therefore abolished the objective form of recklessness. - personal characteristics of the defendant could therefore be taken into consideration - cases like Stephenson and Elliot would now be decided differently as a result, - in order to clarify some of the confusion the law commissions draft code has provided a definition that a person acts recklessly with respect to - a circumstance. when he is aware of the risk that it exists or will exists and - a result when he is aware of a risk that it will occur and it is unreasonable having regard to the circumstances known to him to take that risk

Question 40

what is transferred malice?

Answer 40

- if a defendant attempts to commit a crime against one person but in doing so actually commits a similar crime against someone else they can still be held guilty of the offence against the actual victim. - the concept of transferred malice will only apply where the two offences are similar.

Question 41

Latimer 1886

Answer 41

The defendant aimed to hit a man with his belt. the belt recoiled and hit a women in the face. as both offences were similar the defendant was found guilty of the offence against the women.

Question 42

Pembliton 1874

Answer 42

The defendant had been involved in a fight and threw a stone at his attackers. The stone broke a window . the defendant's intention to hit his attackers could not be transferred to the window as the crime was not the same as intended.

Question 43

Coincidence of AR and Mr

Answer 43

- we have already seen that for a defendant to be guilty of a crime that requisite actus reus and men's rea must be proved to have been present simultaneously .however in certain situations this can prove difficult.

Question 44

Thabo meli 1954

Answer 44

the defendants attacked a man and threw what they assumed was his dead body over a cliff.in fact, he wasn't dead at that point but subsequently died from exposure. The defendants were convicted of murder. the court decided that the actus reus and men's rea were combined in a series of acts.

Question 45

Church 1965

Answer 45

The defendant took a women back to his van to have sex. He couldn't satisfy her and she laughed at him . a fight followed and the women was knocked unconscious .thinking she was dead, church threw her body in the river where she actually drowned. Church was convicted of manslaughter.

Question 46

what is a continuing act?

Answer 46

Where the actus reus is ongoing and the defendant has the necessary men's rea, then the courts have decided that the two elements do coincide and the defendant can be found guilty.

Question 47

Fagan v metropolitan police commissioner 1986

Answer 47

Fagan drove onto a policeman's foot. Despite being asked by the policeman to remove his car several times he refused. Fagan was convicted of assaulting a policeman in the execution of his duty. When Fagan knew the car was on the policeman's foot the requisite men's rea was present and the actus reus was still continuing. legal principle: AR can be continuing act ,as long as Mr occurs at some point during the ar the the defendant can be guilty.

Question 48

causation

Answer 48

Where the crime is a result crime causation must also be shown for there to be criminal liability.

Question 49

what are the types of causation?

Answer 49

the defendants conduct was the factual cause of the consequence the defendants actions were the legal causation of the consequence both must be present for the defendant to be the criminally liable

Question 50

what is factual causation?

Answer 50

- the but for test but for the conduct of the defendant would the victim of died, as and when they did?

Question 51

R v white 1910

Answer 51

The defendant put poison into the evening drink of the victim his mother, with the intention of killing her. the victim drank a few sips of the drink and then fell asleep. she did not wake up , however the medical evidence was that she had died of a heart attack rather than as a result of the poison . the defendant also gave evidence that he had not intended to kill her by a single does but had planned to deliver multiple doses over a longer period of time . the defendant was convicted of attempted murder. legal principle: the court established the but for test of causation ,according to which the defendant could not be convicted unless it could be shown that but for his actions the victim would have not died . on the facts of this case the test was not met, therefore the defendant could not be convicted of murder.

Question 52

r v pagett 1983

Answer 52

the appellant shot at a police officer who was trying to arrest him, and subsequently attempted to use a pregnant teenage girl standing nearby as a human shield to defend himself against retaliation by the officer. the officer returned fire , killing the girl. legal principle: in this case, the defendant had done two dangerous acts which a sober and reasonable person would have realised were likely to cause harm, firstly by firing at the officer and secondly by forcing the victim to shield him from return fire. both of these acts had in fact contributed significantly to the victims death .the conviction of manslaughter was therefore upheld.

Question 53

The de minimus rule

Answer 53

- this test requires the orignal injury caused by the defendants actions to be more than a minimal cause of death - so the act must cause an injury that is the main cause of death - this was set out in r v hughes 2013

Question 54

legal causation

Answer 54

- this is more focused on the actual ,physical cause of death. This is normally identified during a post mortem. 1 the injury must be the operating and substantial cause of death 2 the thin skull rule 3 Novus actus interveniens new intervening act

Question 55

r v kimsey 1996

Answer 55

D was involved in a high speed car chase with a friend. She lost control of her car and the other driver was killed in the crash .The evidence about what happened immediately before d lost control was not very clear. The trial judge directed the jury that d's driving did not have to be ' the principle or substantial cause of death , as long as you are sure that it was a cause and that there must be something more than a slight trifling link'. the court of appeal upheld D's conviction for causing death by dangerous driving

Question 56

The thin skull rule

Answer 56

- you need to take your victim as you find them - if the victim dies of something unusual or unexpected you may still be responsible for their death

Question 57

R v blaue 1975

Answer 57

The defendant stabbed a women who was a Jehovah's witness. As a result of her beliefs she refused a blood transfusion which would have saved her life. The defendant argued he should not be responsible for her death as the transfusion could have saved her life and she refused it. The court disagreed and said he must take his victim as he finds them.

Question 58

what are novus actus interveniens?

Answer 58

- The intervening act must be unforeseeable and random - sometimes linked to an act of god - whose act may break the chain? an act of a third party victims own act a natural or unpredictable event

Question 59

R v smith

Answer 59

The defendant was a soldier who stabbed one of his comrades during a fight in an army barracks. The victim was taken to receive medical attention, but whilst being carried to the hospital he was dropped twice by those carrying him. once at the hospital, he received negligent medical treatment the medics failed to diagnose a puncture in his lung. The victim died of his injuries and the defendant was charged with murder and convicted at first instance. the defendant appealed on the basis that the victim would have survived but for the negligence of those treating him. He also argued that his confession had been obtained under duress and was therefore inadmissible. legal principle: the court held that the stab wound was an operating cause of the victims death it did not matter that it was not the sole cause the chain of causation was not broken on the facts of this case. With respect to the issue of duress the court held that as the threat was made some time before the relevant confession and was no longer active at the time of the defendants statement it did not render the evidence inadmissible. The conviction for murder was therefore upheld.

Question 60

victims own acts

Answer 60

The victim may break the chain of causation themselves if their acts were extreme or unforeseeable

Question 61

r v roberts 1959

Answer 61

After a party the male defendant r , gave the female victim a lift in his automobile. The victim and the defendant had not met before. The defendant began making sexual advances towards the victim which were rejected before attempting to pull off her coat. The victim then opened the door and jumped out of the moving vehicle sustaining injuries as a result. The defendant was charged with sexual assault and assault occasioning actual bodily harm. legal principle the defendants appeal was dismissed. The trial judge was right to direct the jury that they could convict if they thought the victims act had been a natural consequence of the defendants actions. The test for whether a victims own acts were not to be considered capable of breaking the chain of causation was whether the act was a natural consequence or result of what the assailant did or said? If the victims act was so unexpected that it could not be foreseen by a reasonable man then the act would be remote and unreal consequence of the assault and as such would then break the chain of causation.