Criminal Law Notes 5 Theft and Fraud PDF

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1 Criminal Law: What is a Crime? Crime that is capable of being followed criminal proceedings, having one of the types of outcome (Punishment) known to follow these Glanville Williams Difference between Criminal and Civil Law: Criminal Civil What Established State response to crime. Official moral c...

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1 Criminal Law: What is a Crime? Crime = “…Act that is capable of being followed by criminal proceedings, having one of the types of outcome (Punishment) known to follow these proceedings” ~ Glanville Williams Difference between Criminal and Civil Law: Criminal

Civil

What

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Established State response to crime. Official moral censure

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Disputes between individuals, organizations, or between the two

Burden of Proof is on…

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Plaintiff “Preponderance of evidence” – Balance of probabilities

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Compensation for injuries

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Private party

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Either party Doesn’t need to be unanimous

Objective

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Case filed by

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Prosecutor “Presumption of innocence” “Beyond a reasonable doubt” (Burden of Proof of mental aspect on prosecution) However, “Burden of Evidence” (for defence) falls on Defendant, balance of probabilities Determining blame, resulting in punishment eg: Imprisonment, Fines, etc. State

Appeal Jury

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Only Defendant Must be unanimous

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Criminal proceedings = State response to crime Stigma (“Criminal liability is the strongest formal condemnation that society can inflict ~ Professor Ashworth)

What is criminal

determined by values/ culture of society

Overuse of Criminal labels = ↓ Stigma and prevention

∴ Important to justify/ limit what should count as “criminal”. Also distinguish what is “criminal” from what is simply “immoral”. Harm Principle “The only purpose for which power can be rightfully exercised over any member of a civilised society, against his will, is to prevent harm to others.” ~ J.S. Mill What is harmful?  Primitive, physical harms to others: Culturally universal and easier to identify Eg: Rape, murder, manslaughter, theft etc.  Bad conduct that is potentially harmful to others: Eg: Speeding through a school-zone   

Harms beyond that become more subjective, eg: Environmental harm, economic harm What about self-harm? Would the state infringe on privacy? Competing principle: Offense principle

Two main determining factors: 1) Fair Criminalisation Constraint  Unfair to criminalise wrong innocuous conduct that does not cause harm to others  Constitutional rights or international human rights can be justifications for determining what is “innocuous” 2) Proportionate Punishment Constraint  Extent of punishment should be equal to the crime. How else can criminalisation be constrained? 

“Right not to be unfairly criminalised does not exist”

2 

In light of harm principle, how can one’s autonomy be protected from criminalisation, esp if the majority disapproves morally?

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Judges can invoke constitutional rights:  “Human Rights Act 1998”: Interpretation of legislation must be in line with European Convention on Human Rights  If a statute renders this impossible, judges can issue a “Declaration of Incompatibility”  Parliament may reform statute to be compatible  These rights + interpretation should also apply to the victim More rights in the Act:  Prevention of passing retrospective criminal statutes  Entitlement to a fair and public hearing, Presumption of innocence, Choice/ provision of legal assistance for defence  Restrictions on deprivation of life, Prohibition of torture/inhuman/degrading treatment  No public interference of private/ family life  “Freedom of expression1”, which is also restricted by non-discrimination  “Offences should be precise enough for an individual to regulate his conduct”

Opposing Pressures:  

Political Expediency: Parliament responding to social pressure (eg: not to illegalise alcohol) Power Relationships: Criminal law may seem to favour one group over another eg: ↑Crimes + minorities ~ Trayvon Martin

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Practicality: Is the law enforceable? Social norms , Science (in the case of drugs) and logic

Offense Principle   

Offense: Eg- Public indecency, corruption of morals, hate-speech, defamation May be punishable, even more so than harm However, there is yet to be a standard procedure for determining offense + subsequent degree of punishment

Elements of a Crime Various combinations of these are present for different crimes. Element Conduct

What  Doing something that could be criminal on its own. Eg: Harmful conduct (See harm principle)  OR Only criminal if Circumstance is present.  OR Only criminal if Consequence is present.

Circumstance

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Eg: Rape = Conduct (Sex) + Circumstance (Lack of consent)

Consequence

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Eg: Murder/ manslaughter requires corpse.

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Distinguishes hierarchy of crimes eg: Murder (requires intent to cause grievous bodily harm/ kill) from Manslaughter (Specific and basic intent) Burden of evidence on defendant

Fault (Culpability) 

1

See pg 17 of Herring Textbook.

3 Reasons for Lack of Culpability: 1) Exemption from Liability  Juveniles (>18) ~ Is this decision worthy of criticism? Miller Evans (Sister giving heroin) Since Gemma Evans was the older half-sister, she did not have a duty of care (unlike the mother), but it was held that she created the dangerous situation by supplying the heroin (the

2

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Other Cases.

but-for cause of death) = gross negligence manslaughter But had she left before recognising the dangerous situation she had created, she would not have been liable! Had the sister died immediately, according to Kennedy, she would not have been liable. Implied duty out of creation of a dangerous situation ~ It is arguable that she merely FACILITATED the dangerous situation, not caused it: She didn’t directly inject her sister’s arm. Speck

Key qtn: How would a reasonable person have acted in the same situation? Duty Theory and Continuous Act Theory: Duty Theory  Defendant under duty to rectify risk because he caused it  Capability to rectify is impt.  Prof. J.C. Smith  Miller Lord Diplock: Actus reus: His omission after being the one responsible for the dangerous situation! Mens rea: Occurred ONCE HE DISCOVERED THE FIRE + Chose to do nothing. Notwithstanding whether it is recklessness or intent.

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Continuous Act Defendant’s actions were a continuing act: From initiation to final damage. Prof. Glanville Williams Fagan v Metropolitan Police Commissioner Majority judgement: Actus reus: The original act, which continued Mens rea: Superimposed on it. -

Dissenting Bridge J: The car stayed by its own inertia  NOT a continuing act.

Excuse is not the same as a Justification  Justification makes it right, INVOLUNTARY MANSLAUGHTER:  Gross negligence 

Extreme subjective recklessness

Loss of Control  

New defence. Must establish there is no pre-meditation though. Acting spontaneously. ~ Partial excuse of acting without thinking straight.

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Weapon is evidence of pre-meditation IF not, diminished responsibility could be raised, but this will still result in a prison sentence.

Oblique Intention What

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Requires

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Distinction from Constructive Manslaughter/ Recklessness Finding Oblique Intention?

Concept defined by Glanville Williams Where “motive/ desire” do not coincide with “intention” To “intend” in the criminal law is to seek to bring about a certain outcome through one’s actions. In “oblique intention”, the outcome is collateral to actor’s real desire/ ulterior motive But he does it anyway With foresight of virtual certainty that the outcome will occur. Foresight of virtual certainty. 100% certainty + Recognition by the person that this is the result.

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Oblique intent treated as an independent form of Mens Rea It is as grave as direct intent. (In fact, the law doesn’t really recognise the distinction)

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Judge should direct jury to FIND (a la Woollin) Oblique intention if there is a foresight of virtual certainty (Nedrick) Finding of oblique intention = guilty!

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Why then did Woollin, Nedrick and Moloney have manslaughter convictions? The judge at first instance misdirected the jury by saying that foresight of virtual certainty = Intent, rather than a FINDING of intent. So the appeal judge reduced the conviction to manslaughter on that basis.

3 Cases

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R v Nedrick [1986] 3 All E.R. 1 Had grudge against woman. Poured paraffin into her letterbox and set it alight. = killed her child, denied wanting anyone to die. Judge found misdirection at 1st instance: Set the criteria of “foresight of virtual certainty to infer intent”

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R v Moloney [1985] A.C. 905 Drank heavily with beloved stepfather. Blood-alcohol twice the permitted level for driving. Stepfather challenged him to see who could shoot better. Defendant did not aim his gun, fired, unintentionally killed stepdad instantly. Judgement: Precursor to the Nedrick judgement.  Finding of manslaughter

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R v Woollin [1999] 1 A.C. 82 Lost his temper at 3-month-old son and threw him at pram but missed. Child hit wall, died. Judgement: Adapted the word “infer” to “find”, in the Nedrick direction.  Finding of manslaughter

1 Criminal Law: Causation Causation

The rules that decide whether a defendant is responsible for a harm  Defendant’s actions must be a “substantial and functioning cause”(Smith) of the harm.

“But for” cause

A finding that ‘but for’ the defendant’s actions the harm would not have occurred.  Crucial for Factual causation  causa sine qua non  Only Novus actus interveniens can break take over responsibility for causation/ break chain of causation. Conditions are not to be blamed.

Novus actus interveniens

Abnormal causes that break the chain of causation. Must not have been reasonably foreseeable. Eg:

Legal Causation

Third party acting in a “free, voluntary and informed” way. Events in nature that were not expected. Medical Negligence only in exceptional circumstances where they are so independent of the D’s actions that they render D’s actions insignificant to the cause of death. (R v Jordan ~ Defendant’s wounds were already healing when the doctors gave him a drug which he was allergic to) Exceptions: If the party had a duty to take necessary precautions (like a company preventing pollution in  Pegrum). ~ Developed by Hart and Honoré~ Concerned with moral blame of defendant for consequence of actions.

More than a de minimis cause

Minimal cause. ∴ “Accused's act need not be the sole cause, or even the main cause, of the victim's death, it being enough that the act contributed significantly to that result” (Goff LJ, Pagett)

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Take your victim as you find him/her.  R v Blaue: The religion of the defendant, that prevented her from taking a blood transfusion which would save her life could not negate the D’s actions as the cause.

Thin skull rule

Acts of Third Parties 1) Free, voluntary and informed 2) Lack of capacity 3) Lack of mens rea 4) Defences Medical Treatment Was original wound still ‘normal, substantial and operating cause’ ?

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Not foreseeable ∴ = Novus actus interveniens

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Insane, lacks criminal capacity, under age of criminal responsibility ↓ responsibility for the crime Unaware of harm he/she is causing. Eg: being pushed over etc. Eg: Pagett, Public Authority; police officers acted in self-defence according to legal duty.

 1)

The main cause of death = defendant Doctors not to be blamed even if they switch off life support (Malcherek and Steel [1981]): Looking at conduct as a whole, the victim’s situation would be same as initial, without the doctor’s intervention ~ Antony Bland If 3rd party switches the machine off, that is novus actus interveniens

2)

Doctors not blamed when they give inappropriate/ really bad treatment (gross negligence) UNLESS the jury decides that the treatment “Was so independent of the defendant’s act and itself so potent in causing death that it made the defendant’s act insignificant” (Cheshire [1991]) Exception eg: Doctors blamed in Jordan (1956) (gave patient drug he was allergic to after he was recovering from stabbing). Cheshire [1991] and Smith [1959]  Doctors not blamed.

and How wrongful was the treatment?

Defendant’s actions should be more than a de minimis cause Defendant’s actions must continue to be a substantial and operating factor, even if there are further complications down the chain of causation (R v Smith) Further complications, such as medical negligence cannot negate Defendant’s actions unless they “Are so independent of the defendant’s actions that they render D’s actions insignificant to the death” ~ (R v Cheshire) ∴ D’s actions need not be the sole/ ultimate cause, as long as it was significant. Actions of another party are thus not considered.

Acts and Omissions of Victim  If free, voluntary, informed and unforeseeable. then victim is his own cause of death 1. Acts of the Victim  

Eg: Kennedy (no.2) [2007] ~ Injected himself with drugs. This upholds free-will in criminal law

Foreseeable: Did defendants actions provoke victim to foreseeable action? (Roberts (1971), tried to molest

2 victim in car, she jumped out) ‘Would a reasonable person have foreseen the way the victim acted?’ ~ Objectivity test.  If yes, then the victim’s act is not a novus actus interveniens  In Roberts, D was convicted with actual bodily harm, since he was reckless to the Victim’s response. Takes into consideration victim acting-without-thinking-in-terror.  Eg 2: R v Dear The victim was stabbed several times. Died after his wounds reopened. He either opened them himself or omitted to treat himself 1) If he opened them himself…  This act was still motivated by D’s initial stabbing = BUT FOR D’s actions, he would not have died. 2) If he was grossly negligent towards himself…  Thin skull rule = Take your victim as you find him.  D still guilty of murder

2.

Omissions

3.

Condition of victim “Thin skull rule”

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Nature Freak occurrence in nature can be novus actus interveniens

Failure to seek treatment/ declining treatment Blaue [1975] ~ Jehovah’s Witness refused blood transfusion. “take the victim as you find her” ~ Regardless of the victim’s actions/ lack thereof. Defendant’s actions still more than a de minimis cause. “Abnormal state of the deceased’s health does not affect… that death was accelerated by prisoner’s illegal act” ~~ Even if defendant did not know about it. If not, what would have been “reasonably known” about the defendant would be too subjective. Eg: Burglary of 80+ year-old man  Heart attack and died = CoA held that the defendants would have appreciated the risk  They only got let off the hook because the heart attack took place 90 mins after, so causation was not established (R v Watson)

“An operation of natural forces so unpredictable as to excuse D all liability for its consequences” Policy Factors:  Exceptions to the rule: Environment Agency (Formerly National Rivers Authority) Respondent v Empress Car Co. (Abertillery) Ltd. (caused oil to overflow) and Pegrum [1989] (caused pig effluent to overflow) In spite of a positive act of a 3rd party, or an overflow of rain respectively, these could not operate as Novus Actus Interveniens where D had a duty to foresee and take precautions!  Duty to take prevention measures even if overflow of rain/ third party caused pollution. WHY? Potential pollution was foreseeable + profit-making activity

R v Mitchell  Unlawful act manslaughter causation - Punched a person in a queue, who fell into an old lady, who fell and died due to a rupture in her leg vein - Chain of causation not broken = He was found guilty of manslaughter - Intended battery, awareness of risk of harm + Unlawful act + Death of victim.

Causation Cases Case Cheshire 

Key Issues

Details Facts 

Jordan

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Medical negligence

D shot V. V taken to hospital, wounds were healing, but he died from complications relating to his tracheotomy.

Judgement:  The complications were not so independent of D’s acts as to render D’s shooting insignificant Facts 

D stabbed V. V’s wounds were starting to heal. Doctors gave V an antibiotic which they had already established he was allergic to.

Judgement:  The medical negligence in this case = sufficient to render D’s actions insignificant as to the Dear

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cause of death Facts D stabbed V several times. V died after his wounds reopened. He either opened them himself or omitted to treat himself Judgement: 1) If he opened them himself…  This act was still motivated by D’s initial stabbing = BUT FOR D’s actions, he would not have died. 2) If he was grossly negligent towards himself…

3 

Thin skull rule = Take your victim as you find him.

D still guilty of murder

Pegrum

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Smith

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Facts  s Judgement:  An operation of natural forces so unpredictable as to excuse D all liability for its consequences Facts  Smith stabbed the victim who died 4 hours later; A fellow member of his company had dropped the stab victim on the way to the hospital to get treatment. Once in emergency care, there was no blood transfusion. The victim was given saline solution (which, medically, is a gross error), and used artificial respiration - not knowing that the victim was suffering from a pierced lung). It was stated that with proper treatment, chances of the victim's survival was about 75%.

Judgement:  D’s actions still a substantial and operating cause of death = None of the other complications broke the chain of causation.

Watson

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Facts 

Burgled an 90+ year old man’s house and continued to stay there even after establishing his age. He later died of heart-attack.

Judgement:  Since the heart-attack happened several hours later when the police arrived, the burglary could not be established the substantial/ operating cause of V’s death.

Dawson

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Facts

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Judgement:  D’s heart attack due to heart-condition not foreseeable. Facts

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Kennedy No.2

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s

Judgement:  s

Criminal Law notes: Recklessness, Negligence and Intoxication Chapter Recklessness and Negligence

(Subjective) Recklessness  Conscious and unreasonable risk-taking.  Intention > Recklessness> negligence  R v G and R, Lord Bingham: (i) Aware that a risk exists/ will exist (ii) Aware that risk will occur and knows that in the circumstances, it is unreasonable to take that risk. ALSO INCLUDES SHUTTING ONE’S EYES TO RISK  Recklessness is Subjective: Whether he (rather than any reasonable person) realised there was a risk but carried on regardless.  This affirmed Cunningham Recklessness, and abandoned Caldwell (Objective) Recklessness which led to convictions such as Elliot v C = 14yr-old with learning difficulties convicted of criminal damage, even though she lit a shed without being aware of the risk.     

He coul...