Principles of Criminal Law

Question 1

What are summary offences?

Answer 1

Summary offences are the least serious crimes. These include offences such as assault and criminal damage (subject to the value of damage caused). They can only be tried in the Magistrates’ Court, and the punishment that can be imposed is subject to the maximum that the Magistrates have the power to impose, currently six months’ imprisonment or up to 12 months’ imprisonment (for sentences running consecutively on two or more offences triable either way) and a £5,000 fine.

Question 2

What do you need to establish criminal liability?

Answer 2

actus reus + mens rea+ absence of a valid defence

Question 3

What are the different types of actus reus?

Answer 3

Conduct;
Result;
Offences with surrounding circumstances (e.g. belonging to another); and
Omissions.

Question 4

How is factual causation established in result crimes?

Answer 4

Factually, 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.

Question 5

How is legal causation established in result crimes?

Answer 5

The law will check the culpability of the defendant before imposing liability and it will require that the defendant is the ‘operating and substantial’ cause of the prohibited consequence.

The key legal causation principles are:
The defendant’s act must be the ‘substantial’ cause of the prohibited harm (R v Hughes).
The consequence must be caused by the defendant’s culpable act (R v Dalloway).
The defendant’s act need not be the only cause of the prohibited consequence (R v Benge).

Question 6

What novus actus interveniens may break the legal chain of causation in criminal law?

Answer 6

• Medical negligence (although courts are very reluctant to do this)
• Acts of a third party ( if the actions of the third party were ‘free, deliberate and
  informed’)
• Acts of the victim
• Thin skull rule
• Natural events

Question 7

What types of acts of the victim may break the chain of causation?

Answer 7

1. ‘Fright and flight’ cases - The issue falls around the question as to whether the escape was foreseeable by the reasonable person who had the same knowledge as the defendant. 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.
2. Refusing medical treatment - 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.
3. Suicide

Question 8

When will suicide break the chain of causation?

Answer 8

The victim’s suicide may break the chain of causation if:
* 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). In this case, Kennedy supplied a dose of heroin in a syringe, which he handed to the victim, who injected himself, and almost immediately suffered an adverse reaction. The victim later died of the consequences of intoxication by opiates and alcohol. The House of Lords decided that a person who supplies a drug to another has not caused that drug to be administered when the
other injects it.

Question 9

When will suicide NOT break the chain of causation?

Answer 9

• 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).

Question 10

Can someone be criminally liable for an omission?

Answer 10

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’.

Question 11

When can someone be found criminally liable for an omission?

Answer 11

The prosecution must prove that:
(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.

Question 12

What are omissions and causation related?

Answer 12

• 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.

Question 13

What are the different types of intention?

Answer 13

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. 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.

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.
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.

Question 14

What is the test for recklessness?

Answer 14

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.

Question 15

What is the coincidence principle?

Answer 15

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.

Question 16

In what circumstances do the mens rea and actus reus need not strictly coincide?

Answer 16

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.

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.

Question 17

What is transferred malice?

Answer 17

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

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.

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.

Question 18

Will mistake ever negate the mens rea?

Answer 18

If the defendant does not know they are breaking the law, this mistake will not help avoid liability.

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.

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.

Question 19

How does intoxication operate as a defence?

Answer 19

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. 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). 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

Question 20

How does consent operate as a defence?

Answer 20

There are a variety of rules on consent. In the context of non-fatal offences against the person, the availability of consent will depend on the seriousness of the offence.
* 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).
* 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.

Question 21

How does self defence work in criminal law?

Answer 21

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

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.