Criminal Law - Notes
Actus Reus -
Legal Burden of Proof - on the prosecution to prove all the elements of the office, including (in most cases) disproving
the defence.
Evidential Burden - also on the prosecution to provide sufficient evidence for each element of the offence. This may
take the form of police interviews, witness or expert evidence and forensic evidence.
Standard of Proof - where the prosecution has the burden, it is beyond reasonable doubt. Where the defendants raise
certain defences, it is their burden on a balance of probabilities.
Types of Crime -
an act by the defendant - result crimes. eg. Murder/Criminal Damage
certain consequences flowing from the defendants conduct - conduct crimes. eg. perjury
the existence of certain circumstances at the time of the defendants conduct - circumstances/ state of affairs
crimes. eg being drunk at the wheel
Omissions -
General Rule - no liability for omissions. Unless:
Statutory duty to act
Common law offences
contractual duty to act
special relationship
duty based on voluntary assumption of care
creation of a dangerous situation
Causation -
Both elements need to be present to satisfy the acts reus.
Factual Causation = “would the result have occurred but for (in the absence of) the defendants actions?”
Legal Causation = the defendants conduct must be a substantial and operating cause of the consequence.
the consequence must be attributable to the culpable act or omission.
the culpable act must be a more than minimal cause of the consequence.
the culpable act need not be the sole cause.
the accused must take their victim as they find them. “eggshell skull rule.”
the chain of causation must not be broken.
Therefore, but for the act, the result would not have occurred and the the conduct was the substantial and operating
cause of the result.
Criminal Law - Notes 1
, Breaking the chain of causation:
Victims acts.
'Escape Cases' unless “so daft as to make it the victims own voluntary act”
Suicide - does not break the chain if foreseeable as a result of injuries.
Third party intervention
Medical negligence - “palpably wrong”
provided the original injury is still operating at the time, the defendant will find it difficult to escape liability. As
the injury may not need to be the sole cause of death.
only the most extraordinary and unusual. case would medical treatment break the chain of causation.
“Act of God” - foreseeability of the event being the determine factor.
Mens Rea -
Things to remember:
Intention
Recklessness
Negligence
Strict Liability Offences
Transferred Malice
Coincidence of AR and MR
Classification of Offences
Intention:
A subjective concept so the. court will consider what a particular defendant saw or perceived as a result of their
actions.
Direct Intention
where a defendant seeks to achieve the consequence of their act.
Indirect or Oblique Intention (R v Woollin)
when the consequences that the defendant achieves by committing the AR are a by-product of what the
defendant was aiming to do.
eg where a passenger dies due to a deliberate act of sabotaging a helicopter so the pilot dies.
Indirect/ Oblique Intention:
1. Was the consequence virtually certain to occur from the defendants act or omission? Probably a probability of
75% and above required.
2. Did the defendant appreciate the consequences were virtually certain to occur? A subjective test so the court will
examine what the defendant foresaw or perceived as a consequence of their actions.
Criminal Law - Notes 2
, a. what a reasonable person would have foreseen is a good indication in deciding what this defendant did
foresee.
Recklessness:
Two distinct elements when dealing with recklessness:
1. the risk must be an unjustified or unreasonable one to take.
2. the defendant must be aware of the risk and go on to take it.
Justification of the risk:
Balance the social utility or benefit involved against the likelihood or severity of the harm resulting.
Subjective recklessness test:
the defendant actually foresaw the risk = subjective recklessness.
A defendant is reckless if they foresee a risk that something may happen as a result of their behaviour and, with that
foresight, go on without justification to take the risk. An awareness of any level of risk, however small, is sufficient.
Negligence:
Objective negligence test: All 3 below satisfy:
the defendant failed to foresee a risk that a reasonable person would have foreseen.
the defendant foresaw the risk but did not take steps to avoid it.
the defendant foresaw the risk but took inadequate steps to avoid it.
Comparison of recklessness and negligence:
Both forms of mens pea involve the taking of an unjustifiable risk, but there is a key difference:
Recklessness is the conscious taking of an unjustifiable risk
Negligence is the inadvertent taking of an unjustifiable risk.
Gross Negligent Manslaughter - where negligence and criminal liability meet.
For crimes where the mens pea may be satisfied by negligence:
a person is punished simply for failing to measure up to the standards of the reasonable person.
whilst the defendant may have acted intentionally or recklessly, this is not required to establish criminal liability; it
is what the defendant did that is relevant.
because the test is objective, individual considerations such as the defendants motive for acting as they did, or
lack of experiences, are not taken into account.
Strict Liability Offences:
Criminal Law - Notes 3
, Offences where it is not necessary to prove mens rea or negligence in respect of at least one element of the actus
reus.
An example of an offence where an accused may be convicted without proof of fault is driving a motor vehicle in
excess of the speed limit on. a road. Many others relate to areas such as:
Food safety
Consumer Protection
Misuse of drugs
The environment
Road safety
Health and safety
Summary
a. Offences of strict liability are exceptions to the general rule that means rea is required for criminal offences.
b. A person may be convicted of an offence even though they lack the mens rea for one or more elements of the
actus reus.
c. in some instances, the statute expressly states that the offence created is one of strict liability or uses words such
as “intentionally” that make it clear that it is not.
d. in the absence of anything express, a rebuttable presumption applies that the offence is not strictly liable.
e. Usually the higher the social stigma and the greater the penalty on conviction, the more likely that mens rea will
be required.
Transferred Malice:
What if the defendant attacks the wrong person or damages the wrong property?
Under the doctrine, the defendants intention towards A may be transferred to B where they commit the actus reus of
the same offences in relation to B.
It may be transferred from person to person, and object to object.
The Doctrine of Transferred Malice only applies where the actus reus committed is the same type of criminal as the
defendant originally had in mind. If the intended and actual offences are different, the malice cannot be transferred.
If the mens rea of the offence includes recklessness, it may not be necessary to consider the doctrine of transferred
malice at all.
Coincidence of AR and MR:
General Principle:
It is essential the AR and MR coincide in time. However, it becomes more complicated when there is a time lag
between the two.
General rule is that they must coincide.
Continuing Act:
Courts have developed somewhat flexible approach in interpreting the concept to allow the MR and AR to
coincide.
Where an AR may be brought about by a continuing act, it is sufficient that the defendant had mens rea during sits
continuance despite not having the mens rea at its commencement.
Criminal Law - Notes 4
Actus Reus -
Legal Burden of Proof - on the prosecution to prove all the elements of the office, including (in most cases) disproving
the defence.
Evidential Burden - also on the prosecution to provide sufficient evidence for each element of the offence. This may
take the form of police interviews, witness or expert evidence and forensic evidence.
Standard of Proof - where the prosecution has the burden, it is beyond reasonable doubt. Where the defendants raise
certain defences, it is their burden on a balance of probabilities.
Types of Crime -
an act by the defendant - result crimes. eg. Murder/Criminal Damage
certain consequences flowing from the defendants conduct - conduct crimes. eg. perjury
the existence of certain circumstances at the time of the defendants conduct - circumstances/ state of affairs
crimes. eg being drunk at the wheel
Omissions -
General Rule - no liability for omissions. Unless:
Statutory duty to act
Common law offences
contractual duty to act
special relationship
duty based on voluntary assumption of care
creation of a dangerous situation
Causation -
Both elements need to be present to satisfy the acts reus.
Factual Causation = “would the result have occurred but for (in the absence of) the defendants actions?”
Legal Causation = the defendants conduct must be a substantial and operating cause of the consequence.
the consequence must be attributable to the culpable act or omission.
the culpable act must be a more than minimal cause of the consequence.
the culpable act need not be the sole cause.
the accused must take their victim as they find them. “eggshell skull rule.”
the chain of causation must not be broken.
Therefore, but for the act, the result would not have occurred and the the conduct was the substantial and operating
cause of the result.
Criminal Law - Notes 1
, Breaking the chain of causation:
Victims acts.
'Escape Cases' unless “so daft as to make it the victims own voluntary act”
Suicide - does not break the chain if foreseeable as a result of injuries.
Third party intervention
Medical negligence - “palpably wrong”
provided the original injury is still operating at the time, the defendant will find it difficult to escape liability. As
the injury may not need to be the sole cause of death.
only the most extraordinary and unusual. case would medical treatment break the chain of causation.
“Act of God” - foreseeability of the event being the determine factor.
Mens Rea -
Things to remember:
Intention
Recklessness
Negligence
Strict Liability Offences
Transferred Malice
Coincidence of AR and MR
Classification of Offences
Intention:
A subjective concept so the. court will consider what a particular defendant saw or perceived as a result of their
actions.
Direct Intention
where a defendant seeks to achieve the consequence of their act.
Indirect or Oblique Intention (R v Woollin)
when the consequences that the defendant achieves by committing the AR are a by-product of what the
defendant was aiming to do.
eg where a passenger dies due to a deliberate act of sabotaging a helicopter so the pilot dies.
Indirect/ Oblique Intention:
1. Was the consequence virtually certain to occur from the defendants act or omission? Probably a probability of
75% and above required.
2. Did the defendant appreciate the consequences were virtually certain to occur? A subjective test so the court will
examine what the defendant foresaw or perceived as a consequence of their actions.
Criminal Law - Notes 2
, a. what a reasonable person would have foreseen is a good indication in deciding what this defendant did
foresee.
Recklessness:
Two distinct elements when dealing with recklessness:
1. the risk must be an unjustified or unreasonable one to take.
2. the defendant must be aware of the risk and go on to take it.
Justification of the risk:
Balance the social utility or benefit involved against the likelihood or severity of the harm resulting.
Subjective recklessness test:
the defendant actually foresaw the risk = subjective recklessness.
A defendant is reckless if they foresee a risk that something may happen as a result of their behaviour and, with that
foresight, go on without justification to take the risk. An awareness of any level of risk, however small, is sufficient.
Negligence:
Objective negligence test: All 3 below satisfy:
the defendant failed to foresee a risk that a reasonable person would have foreseen.
the defendant foresaw the risk but did not take steps to avoid it.
the defendant foresaw the risk but took inadequate steps to avoid it.
Comparison of recklessness and negligence:
Both forms of mens pea involve the taking of an unjustifiable risk, but there is a key difference:
Recklessness is the conscious taking of an unjustifiable risk
Negligence is the inadvertent taking of an unjustifiable risk.
Gross Negligent Manslaughter - where negligence and criminal liability meet.
For crimes where the mens pea may be satisfied by negligence:
a person is punished simply for failing to measure up to the standards of the reasonable person.
whilst the defendant may have acted intentionally or recklessly, this is not required to establish criminal liability; it
is what the defendant did that is relevant.
because the test is objective, individual considerations such as the defendants motive for acting as they did, or
lack of experiences, are not taken into account.
Strict Liability Offences:
Criminal Law - Notes 3
, Offences where it is not necessary to prove mens rea or negligence in respect of at least one element of the actus
reus.
An example of an offence where an accused may be convicted without proof of fault is driving a motor vehicle in
excess of the speed limit on. a road. Many others relate to areas such as:
Food safety
Consumer Protection
Misuse of drugs
The environment
Road safety
Health and safety
Summary
a. Offences of strict liability are exceptions to the general rule that means rea is required for criminal offences.
b. A person may be convicted of an offence even though they lack the mens rea for one or more elements of the
actus reus.
c. in some instances, the statute expressly states that the offence created is one of strict liability or uses words such
as “intentionally” that make it clear that it is not.
d. in the absence of anything express, a rebuttable presumption applies that the offence is not strictly liable.
e. Usually the higher the social stigma and the greater the penalty on conviction, the more likely that mens rea will
be required.
Transferred Malice:
What if the defendant attacks the wrong person or damages the wrong property?
Under the doctrine, the defendants intention towards A may be transferred to B where they commit the actus reus of
the same offences in relation to B.
It may be transferred from person to person, and object to object.
The Doctrine of Transferred Malice only applies where the actus reus committed is the same type of criminal as the
defendant originally had in mind. If the intended and actual offences are different, the malice cannot be transferred.
If the mens rea of the offence includes recklessness, it may not be necessary to consider the doctrine of transferred
malice at all.
Coincidence of AR and MR:
General Principle:
It is essential the AR and MR coincide in time. However, it becomes more complicated when there is a time lag
between the two.
General rule is that they must coincide.
Continuing Act:
Courts have developed somewhat flexible approach in interpreting the concept to allow the MR and AR to
coincide.
Where an AR may be brought about by a continuing act, it is sufficient that the defendant had mens rea during sits
continuance despite not having the mens rea at its commencement.
Criminal Law - Notes 4
