WHAT MAKES A CRIMINAL OFFENCE? Flashcards
(21 cards)
What constitutes a crime?
Actus Reus + Mens Rea + (for result crimes) causing the bad consequence (death/injury)
Types of criminal offence
1) Act or Conduct Crimes - guilt by conduct irrespective of consequences e.g. rape
2) Result (consequence) crimes - e.g. murder
3) situational crimes e.g.possessing controlled drugs
What is Actus Reus
The conduct element of an offence (most criminal offences require a positive and voluntary act to to be performed. e.g. murder = act of killing)
However, if there is duty to act (e.g. child to feed) then one may be liable for omission
Liability by Omission
Few offences can be committed by omission. There is no general “Good Samaritan” law (Miller, 1983)
Liability will be imposed where there is a duty to act in order to avoid harm
examples of liability by omission
Gibbons and Proctor [1918] starved a child
Stone and Dobinson [1977] failed to care for a vulnerable relative
Pittwood [1902] failed to close a railway crossing
Act or Omission?
Sometimes it is not clear whether conduct amounts to an act or an omission, particularly in the medical context
Act or Omission Example
Airedale Trust v Bland [1993]
Do you agree that withdrawing or discontinuing treatment should be classified as an omission?
Do you see a moral distinction between killing and letting die
Factual Causation
‘but for’ test
‘but for’ D’s act, would he result have occured?
Legal Causation
In addition to satisfying the ‘but for’ test, D’s act must be culpable and more than a minimal cause of the harm
Intervening acts of causation
- Natural events
- Act of third party - often medical blunders
- victims own act/choice
Mens Rea
‘the guilty mind’
Intention -> recklessness -> gross negligence
offences that require no mens rea?
Acts which are criminal only under certain circumstances e.g. driving without a license & Strict Liability Offences
What is the most culpable/blameworthy form of mens rea?
INTENTION
does not require motive or premeditation
Direct Intention
the D intends a particular consequence, acting with purpose or aim towards that result
Oblique intention
The D knows that a particular consequence is very certain to happen
Oblique intention case study
Woollin [1999]: confirmed the 3-part test for oblique intent:
The result was virtually certain;
The result was foreseen by D as virtually certain;
It is for the jury to ‘find’ intention.
questions arising from Woollin
What does virtually certain mean? covers only those cases where the consequence was practically inevitable, rather than likely or very likely.
If the consequence was virtually certain and D realised this, must the jury convict, or do they retain discretion?
Subjective Recklessness
SUBJECTIVE ‘Cunningham Recklessness’: Cunningham [1957] – The D must foresee the risk of harm caused under the OAPA 1861.
Objective vs Subjective recklessness tests
Objective - would a reasonable person have foreseen something or believed it to be true
Subjective - Did the Defendant foresee something or believe something to be true?
“Honest belief” or “Genuine belief”.
In Crown Court, the jury must be sure that the Defendant foresaw or believed it
Gross Negligence
Negligence is not a state of mind like intention and recklessness, but a failure to comply with the standard of a reasonable man
Even if D did not foresee the risk, that failure is itself culpable where a duty of care is breached.
gross negligence case study
Adomako [1995] – anaesthetist failed to check oxygen supply and V died. To be guilty, D must breach a duty of care and ‘…whether… the conduct of the defendant was so bad in all the circumstances to amount in their judgement to a criminal act or omission’ (Lord Mackay).
