280CLS Criminal Law Seminar Three – Criminal Fault PDF

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280CLS Criminal Law Seminar Three – Criminal Fault...

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280CLS Criminal Law Seminar Three – Criminal Fault Direct intention – when it’s the offender’s aim, desire, or purpose to kill/cause GBH Oblique/indirect intention – when the offender kills/causes GBH because it’s a precondition to something else. The test is virtual certainty. Defendant must be virtually certain that death will occur. There is no definition of intention in English criminal law. Intention is a rule of evidence not a rule of law. The difference between murder and manslaughter is the intention. Mercy killing is murder as the direct intention was to kill. Intention and murder key cases: Nedrick and Woolin.

Categories of life sentence: Life Life with minimum tariff of 30 years Minimum tariff of 25 years Minimum tariff of 15 years A tariff means you cannot be released before the termination of this tariff. One cannot even be considered for parole during this time period.

R v Woolin [1999] AC 82 D killed his child by throwing them against a hard surface. D did not desire to kill the child. D was charged with murder, requiring a mens rea of intention to kill or cause serious bodily harm.

Crown Court: guilty of murder – judge’s direction to the jury that they could find intention if they were satisfied that D realised his actions posed a ‘substantial risk’ of causing death or serious injury. Court of Appeal: conviction upheld on appeal – direction as to intention was acceptable. House of Lords: allowing D’s appeal. A direction in relation to ‘substantial risk’ is not appropriate, oblique intention requires the result: (a) to be virtually certain; (b) to be foreseen by D as virtually certain; and (c) for the jury to find intention. The jury can infer intention but they don’t have to find it. Austin intended to kill Dr Evil but not Agent 99; see Hyam v DPP [1975] AC 55. Recklessness involves any likelihood that an unjustifiable risk will happen. The fault element is subjective, because the defendant must have realised the risk, but it is objective, in the sense that the risk must have been an unreasonable one to take in the circumstances. Negligence arguments Deterrence – “although he may know that he is about to engage in the act itself… he knows not of the tendency it has to produce that mischief” – J. Bentham Capacity – “if our conditions… are not adjusted to the capacities of the accused, then some individuals will be held liable for negligence though they could not have helped their failure to comply with the standard” – H.L.A. Hart Fair warning – “the existence of a duty is a question of law. But in the absence of criteria for determining duty situations, this appears to be

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common law decision-making at its retrospective worst” – Ashworth and Horder Contemporaneity – “the enquiry into… negligence liability widens the time frame of the criminal law, giving precedence to the doctrine of prior fault over the principle of contemporaneity” – Ashworth Transferred malice is when the defendant aim was to kill a person (X) but in the act ends up killing or causing grievous bodily harm to another (Y).

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