Criminal Law Collated notes PDF

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Mens ReaRecklessness● Subjective- what did the df foresee ● Objective- what would the reasonable person foresee in the situationTraditional meaning of recklessness. Cunning 1957 - df ripping a gas meter from a wall to take the money from it, in doing so gas began to seep into adjoining building, df ...

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Mens Rea Recklessness ● ●

Subjective- what did the df foresee Objective- what would the reasonable person foresee in the situation

Traditional meaning of recklessness. Cunning 1957- df ripping a gas meter from a wall to take the money from it, in doing so gas began to seep into adjoining building, df maliciously administering an obnoxious substance as to endanger a life. Coa said maliciousness meant intention or recklessness. Df was reckless, just need to see some harm for recklessness. Recklessness- the conscious running of an unjustifiable risk. Must be aware of risk, must not have a reason to justify it. Stevenson- mental health issue don’t see risk they are running, conviction quashed. Extended to include deliberately closing your mind to risk- Briggs 1977. Reasoning, someone who closes their mind to a risk must first have thought of it. Caldwell 1982- df gets drunk sets hotel on fire. Df charged with arson. Recklessness in the offence. Df said drunk so couldn’t foresee the risk to life. HoL, Diplock, recklessness means either df foresees the risk and goes on to take it or df fails to see an obvious and serious risk. Problems● Either test could be over-inclusive or under-inclusive could include mentally ill people who could never know the risk. ● Must consider to who the risk must be obvious, must be obvious to the reasonably prudent individual. Bell 1984- schizophrenic liable for criminal damage even though risk wouldn’t be obvious to him. Elliot- girl with learning difficulties, criminal damage. ● The lacuna- if you rule out the risk, you don’t fit into either limb of Caldwell. Not a practical issue ● Caldwell only applies to criminal damage. R v G- HoL cim damage Caldwell, 2 boys df, aged 11 & 12yro. Set light to papers, thought the fire would automatically burn out, didn’t foresee the risk. HoL, question of if Caldwell applies if even when are infringed by personal circumstances. Say law has taken a wrong turning and overrule Caldwell. Preferred definition of recklessness in Draft Criminal Code clause 18. Brady 2006- risk needs only be foreseen as a possible risk. Other issues of Mens Rea- Negligence- lower likeability Is recklessness. Driving offences standard uses recklessness. Serious offence that is test of negligence, manslaughter, must be gross negligence.

Actus Reus Have to consider act, circumstance and result. Omission- failure to act cause a result. Factual causationcausation is question of fact for jury to decide on the basis of legal principles. 2 steps of assessing causation● Factual- but for test- White 1910 df son of deceased, put poison in water glass, hoping to kill her,

though she dies in the night of natural causes. In this case she died unconnected to his actions. Thus, he wasn’t liable for her death. Benge 1865- may be more than one culpable cause, df railway foreman, misread time table when people working on track, hit by train, others should’ve been in right place. But if he had read timetable correctly the person wouldn’t have died. ● Legal- significant cause, proximate cause, substantial cause. Must be more than a minimal cause. Adams 1957- doctor, homicide, had accelerated passing of terminally ill patients by increasing the morphine dose. Doctrine of double effect. Doctors will not be liable of murder if they incidentally shorten the lives of terminally ill patients in the intention of alleviating the suffering. Only applies to terminally ill. Must also be blameworthy. Dalloway 1847- cart driver holding reins of horse loosely, child runs out in front of cart killed by horses, found that even if cart was in control then the child would have died. Prosecuted for gross negligence manslaughter due to duty. acquitted as it wasn’t blameworthy as couldn’t have done anything about it. Hughes 2014- SC confirms point in Dalloway. Driving without insurance and full driving licence, involved in fatal collision other drivers fault driving on wrong side of road. Charged with causing death whilst uninsured. Driving without licence strict liability offence. SC disagree, say offence requires degree of blameworthiness. Said approach in strict liability offence and may alter depending on wording of the test. Confirmed in Taylor 2016. There must me no break in the chain of causation. Novus actus interveniens● Naturally occurring events- will break the chain if they are unforeseeable. ● Victims own conduct- Roberts 1971- victim is a passenger, df driver makes unwanted sexual advances, jump out of car, suffer injuries. Reasonably foreseeable that victim may try to escape thus Roberts liable. Is it within a range of reasonable responses. Williams v Davies 1992- hitchhiker jumps from car, fearing robbery, threatened whilst in car conviction quashed. Nature of threat is relevant to decide if victim behaved in a reasonable way. Mackie 1973 3yro child running away from child scared by adult falls downstairs. Manslaughter. Action of child foreseeable. Dear 1996- v wounded by df, reopened wound and died. Df still liable. Kennedy NO.2 2007- Kennedy drug use case, df supplied drugs to victim they selfinject, fully informed and free decision, df played no role in injection and victim dies, df wasn’t present at time. Court said it breaks chain in causation, free informed and voluntary decision. ● Victims own characteristics/conditions- Blaue 1975- stabbed lost lots of blood needed transfusion wouldn’t cause Jehovah's witness. Wouldn’t have died if taken transfusion. Take victim as you find them. Take the risk of pre-existing condition/ belief that may make condition more server. Egg Shell Skull rule. Hayward 1903- someone with overactive thyroid death when others would only suffer injury. The casual chain● Third party intervention; Jordan 1956- victim suffered stab wound mainly healed but died as a result of a treatment culpably wrong. Wounds largely heeled, not related to the original wounding. Had allergic reaction to medication known to be allergic to. Smith stabbed in army barracks, mistreated by doctor, dropped on route to treatment, had punctured lung not picked up on. Accelerated death. wound an Operating and substantial cause at time of death. Malcherekinjured wife on life support, life support switched off, caused death, result of original injury. Cheshire shot, emergency tracheotomy, wound healed in a way that caused his death. 2 months

after original shooting. Wasn’t the operating cause. Negligent treatment must be so overwhelming that the df action is negated. High bar set on policy ground protect doctor. ● Other: Pagett 1983- trying to evade arrest held gf in front of him, convicted. Foreseeable, voluntary. Acts done in the line of a duty to protect from crime won’t break causation. Empress Car 1998- broad approach businesses need to take adequate steps to prevent harm. Natural England v Day 2014- removed strictness of Empress only applicable on strict liability cases.

Homicide “The law governing homicide in England and Wales is a rickety structure set upon shaky foundation” Law Commission. Common law offence● Murder ● Manslaughter- including causing death by dangerous driving and other statutory offences ● Infanticide- mother of infant less than 1yr old have to show mother hasn’t recovered from child birth or breast feeding Homicide is a predominantly male offence, mainly stabbing, alcohol, under 1. Actus Reus of Homicide- unlawful killing of a person under the queen’s peace. ● Unlawful- not self-defence, has to be a living person. Not in times of war. Result crime have to establish causation. Death used to have to occur within a year and a day, this was due to the fact that they weren’t medically capable of tracing the cause of death. Though it was abolished in 1996 limiting it instead to 3yrs, requires consent of DPP after this time. Not a breach of article 6 of the HRA t convict someone of attempted murder and then convict them of murder once they die. ● Reasonable creature of being- point of birth, when baby is expelled from the mother’s womb. Rance 1991. Foetus not a being for purpose of homicide. Infant Life Preservation Act 1929 s1 child destruction if a baby is capable of being born alive and is killed then it is child destruction for which they can get life imprisonment. Said to be 24weeks though younger may survive. If it is under 24 weeks and not a lawful abortion under the Abortion Act 1967 then it is a Criminal Abortion 1861 s 1 58, can receive life imprisonment. Ag ref 1998 HoL pregnant woman stabbed 26weeks, baby injured, survives born then dies. Transferred malice and thus manslaughter. ● Point of death- Dicta in Airedale NHS Trust v Bland case, vegetative state, life support switched off, point of death is when brain stem death occurs. ● Causation- result crime, may be acceleration of death, has to be a substantial cause.

Specific offence of murder Killing with malice aforethought- intention to kill or cause grievous bodily harm. Cunningham 1982- ‘GBH rule is an outcropping of old law from which surrounding strata of reasoning has withered away’ 1997 Lord Mustil. From time when grievous harm almost always died.

No need to foresee death is likely can use intention in ordinary meaning where facts are clear. If facts unclear use Woolin to show facts that there was intention. Law Commission 2006● 1st degree where df intended to kill or cause serious injury with an awareness of serious risk of causing death (mandatory life sentence) ● 2nd degree- df intended serious injury killing were intended some injury and aware of serious risk. Killing where partial defence to what would otherwise be 1st degree murder Mandatory life sentence- case since abolition of Death Penalty Act 1965. indeterminate sentence, not fixed, no automatic remission no right to parole, licence on release. Criminal Justice Act 2003 sch 2- lists factors judges should consider, Judges set minimum term, home security had power to alter tariff and refuse parole. Courts view this as ultra vires as politicians may have political issues in mind when sentencing. Average prison sentence has increased to 17 yrs. 66 people in prison serving life terms. ManslaughterInvoluntary- D lacks malice aforethought 1. Constructive (unlawful act) 2. Reckless 3. Gross negligence Voluntary- D has malice aforethought but Loss of control (formerly provocation- C & justice act 2009) Diminished responsibility (homicide act 1957 s 2) Suicide pact (homicide act 1957 s 4)

Involuntary manslaughter Larkin 1942- df waves razor at man to scare him, mistress of man fell against razor and died from injuries. Charged and convicted. Unlawful act brandishing of cut throat weapon, assault. Requirements- actus reus; ● has to be an act. No omission Lowe 1973- df with learning difficulties neglects baby daughter who dies, constructive manslaughter wrong charge, omission that killed. ● Unlawful- Franklin 1883- Brighton pier df threw package into sea landed on swimmers, damage done to package in civil law enough for basis of unlawful no has to be criminal. Lamb 1967- 2 friends playing with a gun, in fun df points gun at victim, pulls trigger and kills friend, no intent to injury, no unlawful act thus couldn’t be charged. Simon Slingsby 1965- couple in consensual sex, ring caused internal cuts, cuts got infected, died, not unlawful can’t be charged. ● Dangerous- likely to subject other person to the risk of some harm. Church 1966- Newbury 1977- HoL decision, relevant unlawful act not identified. 2 boys threw concrete into path of

oncoming train, hit conductor, not specified what the unlawful act is. not difficult to satisfy. ● Causes death- Kennedy No 2, mere supply of drugs isn’t causation. Voluntary act of individual breaks chain of causation. Mens Rea- intention to do unlawful act- Lamb 1967- no requirement that act is aimed at victim. AG’s Ref 1997.

Reckless manslaughter Hussain 2012- df must have foreseen a risk of death or serious injury resulting from their actions. Gross negligence manslaughter ‘negligence of the accused went beyond a mere matter of compensation between the parties and showed such disregard for the life and safety of others as to amount to a crime against the state’ Bateman 1925. Adomako 1995 anaesthetist routine operation, during op the tube connecting patent to breathing apparatus disconnected. Didn’t notice for 4&1/2 mins. Competent individual would’ve noticed in 15secs. Failed to notice patient’s chest not moving, patient becoming blue, dials not on, alarm not on. Noticed and failed to understand that pulse had dropped, and blood pressure had risen. ● Must owe a duty of care● Duty must be breached ● Breach must be grossFairly circular test though the jury can use common sense and expert info to come to a conclusion. Juries interpretation runs the risk of inconsistency. Wacker 2002- df lorry driver, in back people trying to enter country illegally, ventilation closed to avoid detection. 58 people died. gross negligence manslaughter. Defence argue didn’t owe a duty of care as they were partaking in an illegal act. Exterpa causa not applied to criminal law. Misra 2005- doctors, charged when patient died of Diminished responsibility Section 2 homicide act 1957 amended by coroners justice act 2009. Had been used for mercy killing when someone’s health condition diminished due to caring for a loved one. Also used when abused defendant kills abuser. ‘a person who kill or is party to the killing of another is not to be convicted of murder if d was suffering from an abnormality of mental function’ Arose from recognition of medical condition. Ubstantially impaired D’s ability to do one or more of the things mentioned in subsection (1a) 1(A) To understand the nature of D’s conduct, To form a rational judgement Diminished no longer wording substantial impairment new wording. CoA in Golds 2014 said wording of the defence had been made narrower. Potential for use to be restricted. Judge directing jury on what words mean is to use the words of statute- sc 2016 Golds. Abnormality of mental functioning Byrne 1960, df strangles and mutilates victim, he was a sexual predator, coA abnormality of mental function means a state of mind so different form normal that people

would regard it as abnormal. recognised medical condition, going to need expert evidence- Dowds 2012 just because its recognised in international classification of diseases doesn’t mean it will get over the hurdle. Golds 2016- leave the jury to it but ‘of some importance, a serious degree of impairment. Cause/ explains the killing, proving link may not be easy for doctors. Needs to be significant contributory factor in the killing. Joyce 2017- can plead diminished responsibility even if psychotic state triggered by voluntary intoxication but must meet requirements of s 2. 2013 Foye- reversing burden of proof is not a breach of art 6 right to fair trial. Blackman- soldier on duty in Afghanistan, killed a wounded insurgent, charged with murder. Original plea was victim already dead. Found guilty as not the case, no medical evidence entered at trial. Only when psychiatric report asked for in sentencing came to light. Conviction for murder replaced by manslaughter. As he suffered from PTSD type illness.

Driving offences Causing death by dangerous driving 14yrs. Dangerous s 2 A 1 (a) falls far below what would be expected of competent drive. Gov plan to increase max sentence to life no action as yet. ● Causing death by careless driving when under the influence of drink and drugs max of 14yrs ● Casing death by aggravated vehicle taking max 14yrs. ● Causing death by careless driving Domestic violence crimes and victims Act 2004Section 5● ● ●

Causing or allowing the death of a child or vulnerable adult. Caused to deal with specific evidential problem. Child killed in home by one or more of adults, Impossible to know which killed child. Unforeseen consequences. Being used as back up charge for another parent when we know who killed the child. Net of criminal liability expanded.

Sexual Offences Sexual Offences Act 2003● ● ● ● ● ●

Non-consensual sex Child sex offence Offences against person with a mental disorder Prostitution Trafficking Other, animals, human corpses

Non-consensual sex main area of focus. ● ● ● ●

S1: rape S2: assault by penetration S3: sexual assault S4: causing

● ● ● ●

Intentional (mens rea) Sexual activity (actus reus) V doesn’t consent (actus reus) D lacks reasonable belief in consent (mens rea)

s1-3 conduct crimes. S 4 is a result crime. Rape s 1- A person commits an offence if a) he intentionally penetrates the vagina, anus or mouth of another person with his penis b) does not consent to the penetration c) does not reasonably believe that they consent Overturned in R v R 1992- decided that marital rape exemption should not have been included. 1994 definition expanded in Criminal Justice and Public Order Act- said victim could be a man or a woman and could be vaginal or anal penetration. Still restricted to penetration by penis in 2003 act, 2003 act makes df a person not just a man, accepting the gender recognition despite what genitals are. Assault by Penetration- s2 Actus reus, a) df penetrates the vagina or anus of another person with a part of his body or anything else b) the penetration is sexual c) V does not consent to the penetration. Broad enough to include penile penetration. Can be used if V can’t be sure what was used to penetrate them. Critique of offence, distinction of penile penetration being separate and treated different to penetration of another kind. max of life imprisonment. Sentencing guideline, assault by penetration as lower offence. Meaning of sexual- statute, s 7 penetration, touching or any other activity is sexual if a reasonable person would consider that-a) whatever its circumstance or any persons purpose in relation to it is because of its nature sexual or b) because of its nature it may be sexual and because of its circumstances or the purpose of any person in relation to it (or both) it is sexual R v Court 1989 indecent assault (no longer an offence)df put 12yr on knee and spanked her over her shorts, capable of having sexual and no sexual relation. Df questioning said that it was due to a buttock’s fetish, motive isn’t usually relevant, reasoning evidence for discerning if act was sexual. R v H 2005- guy grabbed woman’s tracksuit whilst out running. nature depends on context, could’ve been battery. Just before grabbing her man shouted, ‘fancy a shag’ showing intended in a sexual way.

Sexual Assault s 3- A person commits an offence if a) he touches another person b) the touching is sexual c) v does not consent S79- a) touching includes with any part of the body b) with anything else, c) through anything

R v H- df grabbing v’s tracksuit. touching clothes counts as touching the person.

Causing another person to engage in sexual activity without consent s4- a) Causes another person to engage in an activity b) activity is sexual c) v does not consent to engaging in activity. result crime. Critique- v broad, sort of and anything else box. Strength that it gives flexibility to get someone. Doesn’t require physical contact with the victim. Explanatory notes, kinds of things envisaged ‘a may cause b to engage in sexual activity with a, on b himself, or with another person. Violence, blackmail or deceit. Woman forcing man to penetrate her treated different to rape, more serious if its penetration that’s not consensual.

Consent Prior to SOA 2003consent was state of V’s mind. McFall- former cohabitant, abducted, gave signs that she was consenting/enjoying the sex though she was fearful for her life did not in consent. convicted of rape. Victims words and behaviour is evidence though not conclusive victims state of mind is conclusive. Violence or physical force is not required to demonstrate rape. Though it is easier to prove in those cases. Camplin- victim intoxicated, didn’t struggle or fight back but doesn’t mean they consented. Malone- doesn’t require physical or verbal resistance, too drunk to verbalise lack of consent. Olugboja- 2 df took 2 young women to house other man raped both women and df rape ...