Criminal law refresh.
The definition of an offence:
Key elements of criminal liability... Criminal liability = actus reus + mens rea + absence of valid defence.
In order to establish criminal liability, the prosecution must provide the defendant had the acus reus (guilty action)
and mens rea (guilty mind) along with the absence if a valid defence.
Actus reus:
Different kinds of offences – conduct, result
For result offences, the end result is required to form the actus reus – the defendants conduct causes a particular
result. These crimes include murder, manslaughter, criminal damage and assault occasioning actual bodily harm.
Causation (both factual and legal) is a part of the actus reus in these types of offences.
Conduct offences do not require the end result to happen for the actus reus to be formed. They must only perform
whatever the act is – e.g. theft does not require the person being thieved to lose the property.
Some crimes require certain circumstances to be present in order for the actus reus to be fulfilled – e.g. for criminal
damage, the actus reus is to damage or destroy property belonging to someone else. This requires the circumstances
to be present of it being property and belonging to someone else.
OMISSIONS – some offences you can be liable for omissions, but generally you are not liable for a failure to act.
Absolute liability offences – no mens rea is required (Winzar v Chief Constable of Kent)
Strict liability offences – these do not require proof of mens rea for at least one aspect of the actus reus. These are
mostly created by statute and punishable by fines. For example, the prosecution does not need to prove that a
defendant intended to, or was reckless in, breaking the speed limit. These are usually to protect the public in food
standards, or the environment from pollution.
Actus reus in result crimes
Result crimes = factual + legal causation.
Factual causation – the ‘but for’ test. 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, R v White [1910] 2 KB 124.
- In this case he put poison in his mother's glass, she dies of heart failure. There was no indication she had
drank the poison – no factual causation, acquitted of murder (but convicted of attempted murder)
In other words, if you eliminate the act of the defendant would the prohibited harm have occurred anyway?
Legal causation – The law will check the culpability of the defendant before imposing liability and it will require that
the defendant is the ‘operating and substantial’ (substantial is to mean ‘more than minimal’ in criminal law) cause of
the prohibited consequence. R v Pagett (1983) 76 Cr App R 279.
- The defendant’s act must be the ‘substantial’ cause of the prohibited harm (more than minimal)
- The consequence must be caused by the defendant’s culpable act
- The defendant’s act need not be the only cause of the prohibited consequence. (Railway foreman ordered
the track to be taken up, thinking the next train would be hours away, sent a man down with red flag to stop
any trains – he did not go to the correct distance and train crashed. Court held foreman was still liable as his
negligence mainly or substantially caused the accident)
,Intervening acts – a novus actus interveniens is a subsequent event or act of either the victim or a third party that
renders the defendant’s part in the consequence very small, breaking the chain of causation and meaning that the
defendant is not criminally liable.
- Medical negligence in R v Smith (1959) 2 QB 35 and R v Cheshire [1991] 3 All ER 670 - ‘... only is the second
cause is so overwhelming as to make the original wound merely part of history can it be said that the death
does not follow from the wound’ (Smith case). Courts are very reluctant to impose liability on medical
professionals and very rarely will it break the chain of causation – must be very severe to break the chain of
causation.
- Acts of third parties in R v Pagett (1983) 76 Cr App R 279 – acts must be ‘free, deliberate and informed’
- Acts of the victim:
o ’Fright and flight’ - R v Roberts (1972) 56 Cr App R 95 (CA), will only not break the chain of causation
if ‘...is was something that could have reasonably been foreseen as the consequence’. Was the
response of the victim reasonably foreseeable or was it (as put in Roberts) ‘Daft and unexpected’?
o Thin skull rule – R v Hayward [1908] 21 Cox 692 – the defendant must take the victim as they find
them. Also R v Blaue below.
o Refusal of treatment – R v Blaue [1975] 1 WLR 1411 & R v Holland (1841) 2 Mood & R 351.
Defendants must take their victims as they find them and that meant the whole person, in both
mind and body. If a victim refuses treatment, this is not a break in causation. In Blaue she was a
Jehovah’s Witness so refused a blood transfusion.
o Suicide – R v Dear [1996] Crim LR 595 (CA). Will not break the chain if the operating cause of the
suicide is the defendants act. As per Wallace a victim being voluntarily euthanised due to the pain
and suffering caused by the injuries sustained from the attack DID break the chain – to find liability it
must be reasonably foreseeable that the victim would die from suicide as a result of the injuries.
Suicide may not break chain if:
V dies from the original wound
The act was reasonably foreseeable e.g. where D causes a pianist to lose their
fingers, or a sportsman be paralysed
D’s unlawful act was a significant and substantial cause and at the time of the attack
it was reasonably foreseeable that the victim would die of suicide.
It may break the chain when:
The injuries inflicted by the D have healed, but they go on to die by suicide anyway
It was a voluntary and informed decision of the victim (someone who supplies drugs
will not be held to have caused that drug to be administered)
Omissions – the general rule:
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”
However, there are 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.
Exceptions to the general rule:
- Statutory duty – the Road Traffic Act 1988, s 6(4)
- Special relationship (Doctor / patient, Parent / Child, Spouses (see Hood)
- Voluntary assumption – if a person voluntarily assumes a duty towards another, the law will hold that
person liable if they fail to carry out that duty. This is a question of fact. R v Nicholls, R v Gibbons and
Proctor, R v Instan (assuming care of a relative and then just stopping care for them), R v Stone and
Dobinson, R v Ruffell (care of a friend).
- Contractual e.g. lifeguards, level-crossing gatekeepers who fail to close the gate when train is approaching.
, - Creating a dangerous situation – if a person creates a dangerous situation, 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, btu they would be expected
to take reasonable steps. R v Wilson (He fell asleep with a cigarette, then saw the room he was in set on fire,
but simply moved out of the room and went back to sleep. Was charged with arson, he had a duty to do
something about it.
- Public office – e.g. police officer (whilst on duty) failing to intervene when they see a crime occurring.
Mens Rea:
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 compete
the offence. Burglary is an example of this. The state of mind that the prosecution must prove to secure a conviction
will vary from crime to crime.
Types:
- Intention – Direct and Oblique intention.
o Direct – (subjective) the consequence is what the defendant aims to happen (Moloney). It is the
purpose or objective of D’s act. This is subjective.
o Oblique – this 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.
Woolin case – where the charge is murder, the jury should not find oblique intention unless
the consequence was a virtual certainty of the D’s direct intention (objective), and that D
appreciated that as such (subjective). This is very rarely used.
Oblique intention is only to be used where intention is the only mens rea aspect (i.e. no
recklessness available)
- Recklessness
o Where the defendant does not intend a harmful result, but sees the risk of harm and goes ahead
anyway.
o R v G, in order to be criminally liable for recklessness, the risk taking must be unjustifiable in the
circumstances known to him. If the risk taking is justifiable, weigh up if there is social utility or value
to the activity against the amount and likelihood of harm that might happen.
- Knowledge and belief – e.g. in handling stolen goods - ‘knowing or believing them to be stolen’. These words
have been held to mean someone who is absolutely certain, or is at least possibly aware.
- Dishonesty
- Negligence (in criminal law it is generally not enough to simply be negligent)
o R v Bateman - ‘showed such disregard for the life and safety of others as to amount to a crime
against the state and conduct deserving punishment’.
Relevant rules to remember:
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. The courts have developed some flexible
interpretations to get round the requirement for coincidence of actus reus and mens rea:
- The continuing act theory - the D can form the mens rea at any point whilst the actus reus is continuing –
Fagan case, unintentionally parked on police officer’s foot, so did not have mens rea. When he noticed this
and refused to move it, he formed the mens rea and the coincidence of the AR and MR was present.
- The one transaction principle - the defendant can be construed as having the mens rea for an offence at one
point during a series of acts.
o D’s hit man over the head with intent to kill him. They did not, but then rolled what they thought to
be his dead body over a cliff to make it appear accidental. V died from exposure at the bottom of the
cliff – Court ruled this was one part of a series of events.
, Transferred Malice (Latimer) – this is when the defendants 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 murder. So long as the mens rea for the offences are the same,
this can apply (Pembilton case)
- Note – cannot ‘mix and match’ mens rea and actus reus of different crimes – for transferred malice, the D
must have the AR and MR of the same crime, just different victims.
Mistake
Where D makes a mistake, the effect of this on their criminal liability depends on whether it was due to ignorance of
the law or a mistake that negates the MR.
- Ignorance of the law
o If the D does not know he is breaking the law, his ignorance will not help him avoid liability.
- Mistakes that negate the MR
o If the D makes a mistake as to some element of the AR which then prevents them forming the MR.
o If the MR of the crime is intention or recklessness, there is no need for the mistake to be reasonable.
If the MR is negligence, the mistake must be reasonable.
The Homicide offences:
Murder: No statutory offence for murder, it is a common law offence. Only option is mandatory life sentence. BUT is
usually an indeterminate sentence – judge will state a minimum sentence at which the convicted party can apply for
parole. When released, they are on licence for the rest of their life. It can be a ‘whole life sentence’ which means
they cannot ever be released.
Actus reus: To unlawfully kill a human being under the King’s peace.
- Person?
o Needs to be capable of independent life.
o Man stabbed pregnant woman in the abdomen, child was born prematurely and died. Court held it
was not murder as the child was in utero when it was stabbed and did not satisfy the test.
o Umbilical cord need not be cut, but child does need to be fully born – if they die part way through
birth, then they do not fulfil the test.
Mens rea: used to be ‘Malice aforethought’ - now updated to intention to kill or intention to cause GBH. Note – no
recklessness mentioned in the mens rea, so it is direct intention.
- Where D’s aim or purpose in acting is something other than death or GBH, juries are not entitled to find
oblique intention unless:
o Death or serious injury was a virtual certainty as a result of the D’s action; and
o The defendant appreciated that.
o OBLIQUE INTENTION IS NOT INTENTION, BUT EVIDENCE OF IT.
Defences for murder:
2 special defences (can only be used for murder – not attempted murder, not manslaughter ONLY MURDER) - Loss of
control and Diminished responsibility – And then the normal defences, self-defence, defence of another, POSSIBLY
intoxication. THESE ONLY REDUCE THE CONVICTION DOWN FROM MURDER TO VOLUNATRY MANSLAUGHTER.
Loss of control: (On the prosecution to disprove this beyond a reasonable doubt)
S52 Coroners and Justice act 2009.
The definition of an offence:
Key elements of criminal liability... Criminal liability = actus reus + mens rea + absence of valid defence.
In order to establish criminal liability, the prosecution must provide the defendant had the acus reus (guilty action)
and mens rea (guilty mind) along with the absence if a valid defence.
Actus reus:
Different kinds of offences – conduct, result
For result offences, the end result is required to form the actus reus – the defendants conduct causes a particular
result. These crimes include murder, manslaughter, criminal damage and assault occasioning actual bodily harm.
Causation (both factual and legal) is a part of the actus reus in these types of offences.
Conduct offences do not require the end result to happen for the actus reus to be formed. They must only perform
whatever the act is – e.g. theft does not require the person being thieved to lose the property.
Some crimes require certain circumstances to be present in order for the actus reus to be fulfilled – e.g. for criminal
damage, the actus reus is to damage or destroy property belonging to someone else. This requires the circumstances
to be present of it being property and belonging to someone else.
OMISSIONS – some offences you can be liable for omissions, but generally you are not liable for a failure to act.
Absolute liability offences – no mens rea is required (Winzar v Chief Constable of Kent)
Strict liability offences – these do not require proof of mens rea for at least one aspect of the actus reus. These are
mostly created by statute and punishable by fines. For example, the prosecution does not need to prove that a
defendant intended to, or was reckless in, breaking the speed limit. These are usually to protect the public in food
standards, or the environment from pollution.
Actus reus in result crimes
Result crimes = factual + legal causation.
Factual causation – the ‘but for’ test. 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, R v White [1910] 2 KB 124.
- In this case he put poison in his mother's glass, she dies of heart failure. There was no indication she had
drank the poison – no factual causation, acquitted of murder (but convicted of attempted murder)
In other words, if you eliminate the act of the defendant would the prohibited harm have occurred anyway?
Legal causation – The law will check the culpability of the defendant before imposing liability and it will require that
the defendant is the ‘operating and substantial’ (substantial is to mean ‘more than minimal’ in criminal law) cause of
the prohibited consequence. R v Pagett (1983) 76 Cr App R 279.
- The defendant’s act must be the ‘substantial’ cause of the prohibited harm (more than minimal)
- The consequence must be caused by the defendant’s culpable act
- The defendant’s act need not be the only cause of the prohibited consequence. (Railway foreman ordered
the track to be taken up, thinking the next train would be hours away, sent a man down with red flag to stop
any trains – he did not go to the correct distance and train crashed. Court held foreman was still liable as his
negligence mainly or substantially caused the accident)
,Intervening acts – a novus actus interveniens is a subsequent event or act of either the victim or a third party that
renders the defendant’s part in the consequence very small, breaking the chain of causation and meaning that the
defendant is not criminally liable.
- Medical negligence in R v Smith (1959) 2 QB 35 and R v Cheshire [1991] 3 All ER 670 - ‘... only is the second
cause is so overwhelming as to make the original wound merely part of history can it be said that the death
does not follow from the wound’ (Smith case). Courts are very reluctant to impose liability on medical
professionals and very rarely will it break the chain of causation – must be very severe to break the chain of
causation.
- Acts of third parties in R v Pagett (1983) 76 Cr App R 279 – acts must be ‘free, deliberate and informed’
- Acts of the victim:
o ’Fright and flight’ - R v Roberts (1972) 56 Cr App R 95 (CA), will only not break the chain of causation
if ‘...is was something that could have reasonably been foreseen as the consequence’. Was the
response of the victim reasonably foreseeable or was it (as put in Roberts) ‘Daft and unexpected’?
o Thin skull rule – R v Hayward [1908] 21 Cox 692 – the defendant must take the victim as they find
them. Also R v Blaue below.
o Refusal of treatment – R v Blaue [1975] 1 WLR 1411 & R v Holland (1841) 2 Mood & R 351.
Defendants must take their victims as they find them and that meant the whole person, in both
mind and body. If a victim refuses treatment, this is not a break in causation. In Blaue she was a
Jehovah’s Witness so refused a blood transfusion.
o Suicide – R v Dear [1996] Crim LR 595 (CA). Will not break the chain if the operating cause of the
suicide is the defendants act. As per Wallace a victim being voluntarily euthanised due to the pain
and suffering caused by the injuries sustained from the attack DID break the chain – to find liability it
must be reasonably foreseeable that the victim would die from suicide as a result of the injuries.
Suicide may not break chain if:
V dies from the original wound
The act was reasonably foreseeable e.g. where D causes a pianist to lose their
fingers, or a sportsman be paralysed
D’s unlawful act was a significant and substantial cause and at the time of the attack
it was reasonably foreseeable that the victim would die of suicide.
It may break the chain when:
The injuries inflicted by the D have healed, but they go on to die by suicide anyway
It was a voluntary and informed decision of the victim (someone who supplies drugs
will not be held to have caused that drug to be administered)
Omissions – the general rule:
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”
However, there are 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.
Exceptions to the general rule:
- Statutory duty – the Road Traffic Act 1988, s 6(4)
- Special relationship (Doctor / patient, Parent / Child, Spouses (see Hood)
- Voluntary assumption – if a person voluntarily assumes a duty towards another, the law will hold that
person liable if they fail to carry out that duty. This is a question of fact. R v Nicholls, R v Gibbons and
Proctor, R v Instan (assuming care of a relative and then just stopping care for them), R v Stone and
Dobinson, R v Ruffell (care of a friend).
- Contractual e.g. lifeguards, level-crossing gatekeepers who fail to close the gate when train is approaching.
, - Creating a dangerous situation – if a person creates a dangerous situation, 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, btu they would be expected
to take reasonable steps. R v Wilson (He fell asleep with a cigarette, then saw the room he was in set on fire,
but simply moved out of the room and went back to sleep. Was charged with arson, he had a duty to do
something about it.
- Public office – e.g. police officer (whilst on duty) failing to intervene when they see a crime occurring.
Mens Rea:
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 compete
the offence. Burglary is an example of this. The state of mind that the prosecution must prove to secure a conviction
will vary from crime to crime.
Types:
- Intention – Direct and Oblique intention.
o Direct – (subjective) the consequence is what the defendant aims to happen (Moloney). It is the
purpose or objective of D’s act. This is subjective.
o Oblique – this 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.
Woolin case – where the charge is murder, the jury should not find oblique intention unless
the consequence was a virtual certainty of the D’s direct intention (objective), and that D
appreciated that as such (subjective). This is very rarely used.
Oblique intention is only to be used where intention is the only mens rea aspect (i.e. no
recklessness available)
- Recklessness
o Where the defendant does not intend a harmful result, but sees the risk of harm and goes ahead
anyway.
o R v G, in order to be criminally liable for recklessness, the risk taking must be unjustifiable in the
circumstances known to him. If the risk taking is justifiable, weigh up if there is social utility or value
to the activity against the amount and likelihood of harm that might happen.
- Knowledge and belief – e.g. in handling stolen goods - ‘knowing or believing them to be stolen’. These words
have been held to mean someone who is absolutely certain, or is at least possibly aware.
- Dishonesty
- Negligence (in criminal law it is generally not enough to simply be negligent)
o R v Bateman - ‘showed such disregard for the life and safety of others as to amount to a crime
against the state and conduct deserving punishment’.
Relevant rules to remember:
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. The courts have developed some flexible
interpretations to get round the requirement for coincidence of actus reus and mens rea:
- The continuing act theory - the D can form the mens rea at any point whilst the actus reus is continuing –
Fagan case, unintentionally parked on police officer’s foot, so did not have mens rea. When he noticed this
and refused to move it, he formed the mens rea and the coincidence of the AR and MR was present.
- The one transaction principle - the defendant can be construed as having the mens rea for an offence at one
point during a series of acts.
o D’s hit man over the head with intent to kill him. They did not, but then rolled what they thought to
be his dead body over a cliff to make it appear accidental. V died from exposure at the bottom of the
cliff – Court ruled this was one part of a series of events.
, Transferred Malice (Latimer) – this is when the defendants 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 murder. So long as the mens rea for the offences are the same,
this can apply (Pembilton case)
- Note – cannot ‘mix and match’ mens rea and actus reus of different crimes – for transferred malice, the D
must have the AR and MR of the same crime, just different victims.
Mistake
Where D makes a mistake, the effect of this on their criminal liability depends on whether it was due to ignorance of
the law or a mistake that negates the MR.
- Ignorance of the law
o If the D does not know he is breaking the law, his ignorance will not help him avoid liability.
- Mistakes that negate the MR
o If the D makes a mistake as to some element of the AR which then prevents them forming the MR.
o If the MR of the crime is intention or recklessness, there is no need for the mistake to be reasonable.
If the MR is negligence, the mistake must be reasonable.
The Homicide offences:
Murder: No statutory offence for murder, it is a common law offence. Only option is mandatory life sentence. BUT is
usually an indeterminate sentence – judge will state a minimum sentence at which the convicted party can apply for
parole. When released, they are on licence for the rest of their life. It can be a ‘whole life sentence’ which means
they cannot ever be released.
Actus reus: To unlawfully kill a human being under the King’s peace.
- Person?
o Needs to be capable of independent life.
o Man stabbed pregnant woman in the abdomen, child was born prematurely and died. Court held it
was not murder as the child was in utero when it was stabbed and did not satisfy the test.
o Umbilical cord need not be cut, but child does need to be fully born – if they die part way through
birth, then they do not fulfil the test.
Mens rea: used to be ‘Malice aforethought’ - now updated to intention to kill or intention to cause GBH. Note – no
recklessness mentioned in the mens rea, so it is direct intention.
- Where D’s aim or purpose in acting is something other than death or GBH, juries are not entitled to find
oblique intention unless:
o Death or serious injury was a virtual certainty as a result of the D’s action; and
o The defendant appreciated that.
o OBLIQUE INTENTION IS NOT INTENTION, BUT EVIDENCE OF IT.
Defences for murder:
2 special defences (can only be used for murder – not attempted murder, not manslaughter ONLY MURDER) - Loss of
control and Diminished responsibility – And then the normal defences, self-defence, defence of another, POSSIBLY
intoxication. THESE ONLY REDUCE THE CONVICTION DOWN FROM MURDER TO VOLUNATRY MANSLAUGHTER.
Loss of control: (On the prosecution to disprove this beyond a reasonable doubt)
S52 Coroners and Justice act 2009.
