CRIM LAW A - CRIMINAL LAW A NOTES - JAN EXAM PDF

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Criminal Law – Lecture 1Sources of criminal law – the ‘landscape’ of criminal lawSpecific offences – they should be clear (written in language that can be understood by ordinary people), fair (not oppressive or discriminatory) and comprehensive.The principles should be clearly set out in some form s...

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Criminal Law – Lecture 1 Sources of criminal law – the ‘landscape’ of criminal law Specific offences – they should be clear (written in language that can be understood by ordinary people), fair (not oppressive or discriminatory) and comprehensive. The principles should be clearly set out in some form so that we can resolve disputes where there is more than one resolution. Need to keep the body of law up to date – when drafting legislation + crimes that are outdated and need to be removed. Eg. 15 years since intercourse between gay men has been decriminalised, suicide. With current thinking. Dealing with new problems when they arise – especially with technology. A Criminal Code – body of laws which contains the main offences and the principles. *The UK does not have one. Draft of Criminal Code 1989 – published in two volumes, but it never made it past the draft stage. ‘historic event’ codification of the statute law in one field controversy – provisions about murder parts have been brought in, but never the whole thing Common Law – developed by judges Most defences are still defined by common law. Their definition can be found in case. Serious crimes are transformed into statutory offences – sexual offences of 2003. All common law is subject to the HRA scrutiny and challenge which often has an impact. Common Law Offences: Murder, manslaughter, duress, etc. Statutory Offences: Sexual offences, diminished responsibility, self-defence, theft, fraud, etc. If defendant committed two distinct crimes falling in the two different categories, you would have to jump in between the two sources of law for definitions and principles + exploring the available defences. Very easy to lose sight of different criminal elements. Common Law – based on ancient judicial decisions, but there is a lot of modern authority for important offences. If modern decisions found to be wrong, judges might explore the old decisions in order to come to the right decision. Used to create new offences without warning for which punishment could then be imposed. We need to know before we do something if it is wrong or not. ‘Dog law’ – punishing someone after the event. Principle of certainty – found in Art 7 ECHR.

‘No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under the national or international law at the time when it was committed.’ ‘fair warning’ and certainty Dyson LJ in Muhamad (2002) – ‘To ensure that those who are or may be subject to criminal sanctions have a sufficiently clear indication of what will or may be the consequence of their actions.’

No new offences may be discovered at common law – Parliament alone creates new criminal offences and ‘fills in the gaps’. Where Parliament has legislated in an area previously covered by common law, only the statutory offence/s should then be used. (Rimmington 2005) Existing common law offences should not be put to unorthodox uses, but can be used to respond to novel situations. (Ireland 1998 – threat considered assault) ‘Restaurant owner jailed for six years over death of peanut allergy customer’ – Gross negligence manslaughter. Statutory Offences A body of primary and secondary legislation under which new offences may be created or repealed. Parliament’s offence-making powers cannot be curbed or overridden except: by the precedence accorder to EU law, and by judges exercising their various duties under the HRA 1998 Certainty may still be a concern if offences are out of date or poorly drafted. Criminal Law – Lecture 2 The distinctive functions a crime has. Three distinctive functions: What must not be done – criminalisation Convicts persons who have transgressed its prohibitions Punishes those whom it convicts Procedures Two types of jurisdiction: criminal and civil. (the same court often has both kinds of jurisdiction eg. magistrates) Two kinds of legal procedure. Same act can be both a civil wrong and a crime eg. assault. Distinction between criminal and civil: ‘An act that is capable of being followed by criminal proceedings.’ Type of behaviour that needs to be criminalised. New criminal law cannot be radically out of state with public opinion. Criminal sanction should only be used as a ‘last resort’. Criminalisation = state’s authority to inflict punitive measures, not just because of the consequences that flow directly from being punished, but the indirect consequences as well eg. unemployment. Minimise criminalisation – hence the use of education instead of criminal law to deal with issues such as use of alcohol, tobacco, etc. Individual and society – autonomy = the right of a person to make their own choices on matters that concern no one but themselves. ‘The individual is sovereign.’ The state should not interfere to prevent an individual from making choices simply on the basis that they are bad for him/her, only on the basis that they are bad for others. Obvious harms: -

Protection of the person against fatal and non-fatal physical injury

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Protection of the right of adults to make their own sexual choices and of children to be protected from premature sexual contact Protection of the right to enjoy property free from dishonest adverse interference by others (whether by taking or by fraud)

Harm vs respect for autonomy: -

A person may ‘commit’ suicide, but may not enlist the help of another person to do so It is not possible to consent to the infliction of more than minimal harm without ‘good reason’ A person may be convicted of stealing his own property by a dishonest transaction

Less obvious harms: -

Some wrongs may lack an immediate individual victim but may still be harmful to society eg. speeding and other driving offences, the pollution of the environments, etc. – all of which may attract criminal sanctions.

Intention of criminal law into matters of morality. Conduct which may be acceptable in private, but not in public. What are the boundaries in cases of public decency? Prosecuting in the interest of the public interest. The enforcement of morals The state should interfere with the rights of an individual to live his or her life as he or she may choose no more than is necessary to ensure a proper balance between the special interests of the individual and the general interests of the individuals who together comprise the populace at large. Regulatory offences and ‘real’ crimes Criminal liability is sometimes used by Parliament as a practical means of regulating an activity. Does not have the same implication as the majority of traditional crimes. Eg. serving food, safety on a building site, etc. – subject to the criminal law. Less thought often goes into them. They are usually found in secondary legislation (little debate). Aimed at avoiding rather than punishing the actual harm. Make participants adjust their conduct to avoid causing any harm. They often carry quite serious punishments eg. fines or prison. Should not be put under the same umbrella as major crimes such as murder, GBH. Regulatory offences are often drafted to impose strict liability (the prosecutor does not have to prove fault) and this may encourage the use of similar drafting in relation to ‘real’ Defending the principles The role of judges They cannot dictate if an act is a criminal offence if Parliament says it is. Judges play an important role in interpreting common law and statutory offences. Judicial precedent (judge made law) in relation to the specific offence in issue, but also builds underlying principles of criminal liability. Parliament has not concerned itself with laying down principles of liability – unlike in other jurisdictions where codification has overtaken judge-made rules. The Law Commission Statutory body advising on law reform. Parliament does not always act on the recommendation of the Law Comission. Eg. Reform of murder, involuntary manslaughter and the OAPA 1861 – recommended, but not yet implemented. Parliament prefers to pass ‘stop gap’ legislation – reacting to particular issues.

Academic commentary widely respected in court and often followed in resolving legal arguments. Criminal Law – Lecture 3 Law and Fact Jury trials: ● Questions of law – decided by judges ● Questions of fact – decided by the jury All trials have implications for appeal – errors of law are more readily rectifiable. All relevant facts must be proved (usually but not inevitably by the prosecution). The Burden of Proof/ Presumption of Innocence ● The prosecution must prove the guilt of the prisoner ● No burden laid on the prisoner to prove his innocence ● Sufficient for him to raise a doubt as to his guilt ● Only exception is the defence of insanity or any statutory exception ‘Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law’ ECHR Art 6(2) Legal and evidential burdens D may be required to produce/identify some evidence on a particular matter (typically a defence) to make it a live issue – evidential burden which requires only some evidence to be available in support of the issue, even if there is ample evidence to the contrary. ‘Comparative experience in constitutional democracies underlines the vice inherent in transfer of legal burden provisions, and the utility, in appropriate contexts, of evidential presumptions’ Lambert (2002) Standard of Proof – where the legal burden is on the prosecution, proof beyond reasonable doubt is required (Woolmington v DPP) ● Where the legal burden is on the defendant, proof on balance of probabilities is enough (Carr-Briant) *Need to be aware of which party has the burden of proof when analysing questions* Actus Reus and Mens Rea An act does not render the actor guilty unless his mind is guilty too. Actus Reus – the physical element/s – what conduct, in what circumstances (if any) and what outcome (if any) must be proved. Crimes may be classified according to the requirements of the actus reus: ● RESULT CRIMES eg. murder require proof that D’s conduct caused the outcome ● CONDUCT CRIMES eg. dangerous driving (RTA 1998, s.2) are concerned with the nature of D’s conduct rather than the outcome ● STATE OF AFFAIRS eg. being the owner of a dog that is dangerously out of control in public require only proof of the state of affairs Mens Rea – the mental element/s – describes the proscribed state of mind (if any) Crimes may also be classified according to the mens rea: ● CRIMES OF INTENTION (sometimes specific intention) – require an element of deliberate intent on the part of D (eg. intent to permanently deprive in theft) ● CRIMES OF RECKLESSNESS require an element of conscious risk-taking (eg. Criminal Damage Act 1971) ● OTHER: knowledge, dishonesty, belief, wilfulness

*Subjective element – what D thinks/believes is at the heart of the court’s inquiry. Must be acquitted if he lacks necessary intent/awareness. Many crimes do not require MR in this sense: ● Crimes with an element that can be satisfied by negligence (manslaughter by gross negligence, dangerous driving) – D needs only to fall short of a standard, whether he is aware or not ● Crimes with an element of strict liability (rape of a child under 13, SOA 2003 s.5) where the court is not concerned with whether D was or should have been aware of the matter Correspondence of AR and MR ● MR should extend to the whole AR No correspondence in crimes of strict liability since there is no MR requirement as to an important element of the AR, even if there are other elements for which MR is required. (eg. the act of penetration in the s.5 SOA 2003) Liability is constructive where there is a requirement of MR to some degree, but falling short of the full AR ● D may be guilty of murder if he kills intending really serious injury, and of constructive manslaughter if he intends a mere battery. AR + MR = CRIME ● But, the criminal law also recognises a range of defences under which D may commit the AR with MR but still not be guilty. Defence may be: 1. General: they apply to all/most crimes eg. duress, which applies to all offences except murder 2. Crime-specific: eg. diminished responsibility, which is a defence only to murder 3. Complete: D is exonerated eg. duress 4. Partial: D’s liability is reduced eg. diminished responsibility All elements are of equal importance to the prosecution case and all must be proved EXCEPT where the element which cannot be proved is a defence and the legal burden of proof is on D: Eg. the prosecution proves D killed V with intent and D tries but fails to prove insanity/diminished responsibility. Locating AR, MR and D It may not be clear what role a particular element plays until the courts can construe the offence to find out: ● A word like ‘possession’ in the Misuse of Drugs Act may be held to have both physical and mental connotations ● A word like ‘unlawful’ may mean that exonerating circumstances of which D is unaware render his conduct lawful (no AR) or that he must also be aware of them (defence) The Criminal Damage Act 1971 AR – every crime has an AR, always start with locating it It helps to break it down into the conduct, circumstances and any outcomes that have to be proved. Introducing causation: in crimes requiring proof of an outcome such as damage/destruction causation must be shown and problems may arise. Eg. X throws a wedding-ring belonging to his unfaithful wife under a steamroller driven by Y. Y cannot stop in time and squashes the ring. Who causes the damage? Causing normally requires some deliberate or voluntary conduct on the defendant. The issue is that omissions normally don’t attract liability – We need a duty to impose liability. Where does the AR begin and where does it end?

Defining conduct – R v Miller (1983): D was smoking in bed when he fell asleep. Woke up when mattress was smouldering. Chose to ignore fire. No MR at the beginning when the AR which caused the damage happened (dropping the cigarette). We need to be able to look at a piece of conduct as a whole. D’s conduct can take into account the fact that he failed to take reasonable steps to hinder this danger from happening. The margins of ‘damage’ – The CDA offers no definition of ‘damage’ or ‘destroy’ – up to courts to settle the meaning. Requires the application of ‘common sense’ of the word and to pose a question of ‘fact and degree’. Eg. eradicable graffiti may constitute damage. It is irrelevant whether D intends to improve the property – that does not stop it being damaged. Relevant circumstances – ‘Property’ and ‘belonging to another’ are defined words in s.10 CDA 1971 because they are legal concepts. ● Land can be damaged ● Property belongs to anyone who has a property right or control over it; D may be guilty of damaging property that he owns provided it also belongs to another MR – proving the defendant’s intention or recklessness ● Intention is the more culpable state of mind (and easily proved eg. in relation to acts of vandalism of public property) ● Recklessness is the bare minimum requirement ● Neither terms are defined Recklessness – intended as a term of a precise legal meaning but not defined in the act itself because the Law Commission expected to have a separate act of Parliament with all the MR terms to be defined but it never happened. But if it was put in the act, it would be defined as the deliberate taking of an unreasonable risk (eg. throwing a stone knowing you might break a neighbour’s window) – it has an element of negligence in it too – awareness of risk Caldwell (1982): D could be judged reckless where he took a risk that was ‘obvious’ to the reasonable person (whether he realised or not) *losing the element of awareness* - objective approach R v G (2004): Two boys, aged 11 and 12, set fire to newspapers and threw them under a large plastic bin in a supermarket yard. It appears that they thought the fire would burn itself out. In fact the fire took hold on the bin and spread to the supermarket causing £1m of damage. Held: They did not see the risk due to their inexperience and immaturity. House of Lords restores the ‘intended meaning’ of recklessness and gives it a strong principled basis. ‘It is not clearly blameworthy to do something involving a risk of injury…if one genuinely does not perceive the risk’ ➔

Current definition of recklessness: ‘A person acts recklessly with respect to (i) A circumstance when he is aware of a risk that it exists or will exist and (ii) A result when he is aware of a risk that it will occur; And it is in the circumstances known to him, unreasonable to take the risk’ Some D’s are blameworthy if they have the capacity to foresee the risk, but there is another reason for them not do so? Eg. failure to appreciate a risk caused by D’s own shortcomings such as anger or over-tiredness? Criminal Damage Act 1971, s.1(2) – Ulterior Mens Rea The defendant commits this crime If he destroys or damages any property, whether belonging to himself or anothera. Intending/being reckless to destroying/damaging the property; and

b. Intending/being reckless to endanger the life of another by damaging/destroying the property Lawful excuse S.5 CDA a. D believes the person consented or would have done so had they known the circumstances or b. D acted to protect property that he believed to be in immediate need of protection and he believed that the means of protection were reasonable in the circumstances. Note that s.5 provides that ‘it is immaterial whether a belief is justified or not if it is honestly held’. The defendant may be completely mistaken and still have a lawful excuse. Lawful Excuse and other defences CDA s.5(5): This section shall not be construed as casting doubt on any defence recognised by law as a defence to criminal charges’ The defendant can rely on any general defence that applies to the case, as well as a specific defence such as s.5’s lawful excuse. Criminal Law – Lecture 4 Causation in murder, manslaughter and other result crimes Examples of cases where D escapes liability because they did not act voluntarily: ● D is attacked by a swarm of bees and loses control of his car (Hill v Baxter) ● D not liable if X grabs D’s hand and punches V ● Some complex forms of unconscious action eg. sleepwalking The defendant should not be liable if he has not control over his actions. Coercion (eg. duress) does not affect voluntariness but may provide a defence. The same common law principles of causation generally apply to ALL result crimes (fatal or not). Most cases concern homicides (where causation is most likely to be hotly contested). A number of offences involve causing the death of a person: ● Murder ● Manslaughter ● Corporate manslaughter ● Infanticide ● Offences concerning assisting suicide ● Offences of causing death by driving

Murder Where the defendant did the act which caused the death intending to kill the victim or to cause him at least grievous bodily harm. Manslaughter Two kinds: 1. Voluntary Manslaughter: D has mens rea for murder but relies on a partial defence reducing culpability (eg. diminished responsibility or loss of self control) 2. Involuntary Manslaughter: D causes the death of V and either has a degree of mens rea amounting to a lesser crime or is grossly negligent or reckless Causation – the basics D will not be liable at all if he was not acting voluntarily. The rules of causation determine whether D’s conduct is a sufficient and a legally operative cause of V’s death -> chain of causation.

Conduct may in exceptional cases include an omission, where D is under the DUTY TO ACT and BREACHES THE DUTY, leading to the death of V. The doctrines of causation may be complex, but because the judge deals with questions of law and the jury with the facts, any problems can usually be explained to the jury in simple terms: ● Whether the death of a deceased was the result of the accused’s criminal act is a question of fact for the jury, but it is a question of fact to be decided in accordance with legal principles explained to the jury by the judge (Cheshire 1991) Principles of causation: 3 key issues 1. The minimum causal contribution required of D 2. The causal effect attributed to D’s omissions 3. When to relieve D of causal responsibility for an act or culpable omission because...