Criminal Law Revision Notes PDF

Preview

Summary

Criminal Law Revision Notes Actus Reus ➔ The Actus Reus is the physical element of a crime ➔ It may be an act or a failure to act (an omission) ➔ The act/omission must be voluntary on the part of D. ■ If D has no control over his actions, then he has not committed the offence. ■ Hill v Baxter 1958 ●...

Description

Criminal Law Revision Notes Actus Reus ➔ The Actus Reus is the physical element of a crime ➔ It may be an act or a failure to act (an omission) ➔ The act/omission must be voluntary on the part of D. ■ If D has no control over his actions, then he has not committed the offence. ■ Hill v Baxter 1958 ● the court gave examples of where a driver lost control of his vehicle because he was stung by a swarm of bees, struck on the head by a stone or had a heart attack whilst driving. ■ Kay v Butterworth 1945 ● D fell asleep whilst driving and killed people. D's conduct was voluntary as he has chosen to drive even though he knew he was tired. Omissions ➔ The normal rule is that an omission cannot make a person guilty of an offence ➔ However, there are 6 exceptions where there is a duty to act 1. A statutory duty ■ an Act of Parliament can create liability for an omission ■ s170 Road Traffic Act 1988 - failing to stop and report a traffic accident. ■ s6 Road Traffic Act 19 -: failing to provide a specimen of breath 2. A contractual duty ■ R v Pittwood (1902) – A railway crossing keeper failed to shut the gates resulting in a person being struck by a train 3. A duty because of a relationship ■ R v Gibbins and Proctor (1918) – D and Partner responsible for D’s children. Singled out one girl and starved her to death. 4. A duty taken on voluntarily ■ R v Stone and Dobinson (1977) - Stone’s sister came to live with D’s. Dobinson occasionally helped to wash and feed the V, she died of malnutrition. 5. A duty through ones official position ■ R v Dytham (1979) - D was a police officer who watched a man being kicked to death before going off duty and doing nothing to help. 6. A duty which arises because the D has set a chain of events in motion ■ R v Miller (1983) - D was squatting, slept with a cigarette, set fire to mattress. He moved to another room without getting help. Charged with Arson.

Law of Omissions Reform ➔ Assuming a duty? ■ It can seem harsh that someone who accepts an adult into their home can be held to have assumed a duty towards that adult (Stone and Dobinson). ■ An adult is normally held responsible for their own life. If an adult is vulnerable then the argument for imposing a duty is that the person assuming the duty is in the best position to ensure that potential harm is avoided. ■ They will know the vulnerability of V when others do not. Also how do they discharge their duty?? ➔ Good Samaritan Law? ■ Ordinary people should not be forced into acting like rescuers. ■ In a developed country, the state provides well-trained and well-equipped professionals such as the police and ambulance crews to deal with emergency situations. ■ These services are paid for through taxes, so it can be argued that every taxpayer is already helping and doing their bit. Causation ➔ When the accused is charged with a crime, the prosecution must prove to the jury that the accused actually committed or caused the result, e.g. death of the victim. ➔ It must be established that the suspect’s conduct is factual AND legal cause of the consequence. ➔ Factual causation – But For Test – but for the actions of accused would the prohibited consequence occurred ■ R v Pagett 1983 – D used pregnant girlfriend as human shield during police gunfight → he was guilty because the girl would not have died 'but for' him using her as a shield in the shootout ■ R v White 1910 – cyanide into his mother’s drink intending to kill her for his inheritance → She died because of a heart attack without touching her drink → he was not the factual cause of death. ➔ Legal causation - There may be more than one act contributing to the consequence → D can be guilty if his conduct was more than a 'minimal cause' of the consequence (also known as De minimis rule)→ BUT D's conduct need not be a substantial cause. ■ R v Kimsey 1996 – D lost control of car in a high speed car race with a friend. Other driver died. Act wasn’t substantial cause but more than minimal.

Intervening Acts (nouvus actus interveniens) ➔ Chain of Causation ■ chain of events which starts with the D’s initial act + ends with the consequence to the victim e.g. the victim is injured or dies ■ Must be direct link from the D’s conduct → consequence ■ In some situations something else happens after the D’s act or omission + if this is separate from D’s conduct = it may break the chain of causation ➔ Medical Treatment

■

Medical treatment is unlikely to break chain of causation unless it is so independent that D's acts are insignificant ■ R v Smith 1959 – D stabbed V with a bayonet. On the way to hospital he was dropped, and at the medical centre was given wholly inappropriate treatment to his wound. It substantially affected his chances of survival but wound was substantial & so D was liable for his death. ■ R v Jordan 1956 – The V had been stabbed in the stomach. His wounds were healing well, but the Dr prescribed a large dose of a drug to which he was allergic (without checking notes) and he died. The wound was no longer a significant cause for his death. ➔ Life Support Machines ■ R v Malcharek 1981 – D stabbed his wife; she was shown to be brain dead and the life support was switched off. D was charged with murder: turning off a life support was not held to be an intervening act ➔ Fight or flight ■ R v Roberts (1971) – V jumped from a car to avoid the D’s sexual advances and was injured. D was liable for her injuries. ➔ You must take your victim as you find him – “thin skull “ rule ■ If there are particular circumstances about the victim which D is not aware off, i.e. V has a particular weaknesses what makes them more vulnerable than others, this won’t excuse D liability so won’t break the chain of causation ■ R v Blaue 1975 – V stabbed and needed a blood transfusion to save her life but was a Jehovah’s Witness. Refused, died, D convicted of murder. Law of Causation Reform ➔ Taking your victim as you find them? ■ Where V has a medical condition where it makes the injuries more serious, should D be liable for the more serious injury? ■ It can be seen as being unjust where D does not know about the medical condition ➔ V refusing treatment? ■ Should D be liable when V refuses medical treatment? As seen with R v Blaue 1975. It can be argued that D should not be liable for her death. ■ He could have been charged with intent to do so (s18 OAPA 1961). ■ This offence has a max penalty of a life imprisonment, so a suitable punishment should have been imposed on D.

Mens Rea There are different levels of mens rea: Intention ➔ Direct Intention ■ D intends to commit a crime for that consequence to occur. ➔ Oblique Intention ■ The D intends one thing but the consequence is another ● R v Maloney (1985) – D and Step Father were drunk. Had been messing around with a shotgun and step father killed. Intention could be inferred if death was a ‘natural consequence’ of the D’s action and the D foresaw that consequence. ● R v Nedrick (1986) – D had a grudge against a woman. Set her house alight and a child died in the fire. Death, GBH must be a virtual certainty. ● R v Woollin (1998) – D threw his 3 month old baby towards a pram, baby died. Repeated the Nedrick judgement almost verbatim. Recklessness Recklessness is a lower level of mens rea than intention. It is based on the subjective approach: ➔ SUBJECTIVE APPROACH ■ R v Cunningham (1957) – D tore a gas meter from a wall to steal money from it. The resulting gas leak caused a next door neighbour some harm. → He hadn’t intended to cause the harm and hadn’t taken a risk he knew about ■ This version of recklessness was ruled not to exist from 1981 – 2003, when another form took its place, based on the objective approach: ➔ OBJECTIVE APPROACH ■ Metropolitan Policy Commissioner v Caldwell (1981) – D got very drunk and decided to set fire to a hotel, owned by someone whom he had a grudge against. D claimed he was so drunk he hadn’t realised people might be injured. Based on how what reasonable person would do. ■ This version of recklessness was held to be very unfair as it did not take into consideration any peculiarities of the D. ➔ SUBJECTIVE APPROACH ■ The matter was finally settled in 2003, with a return to the subjective approach: ■ R v G and Another (2003) – 2 young boys set fire to some newspapers. The fire spread causing significant damage to some nearby shops. The HoL overruled Caldwell. Knowledge D must have knowledge of certain facts to have the Mens Rea ➔ Sweet v Parsley (1969) – D let out a cottage to some students who smoked cannabis there. She was arrested for managing a property used for such things, found not guilty because she hadn’t known about it.

Transferred Malice If A aims a blow at B but misses, hitting C instead, A will still be guilty of an offence because their mens rea or malice towards B will be transferred to C to prove the crime against them. ➔ R v Latimer (1886) ■ D was involved in an argument with V. He swung his belt at V, missed V and hit W instead who was badly wounded as a result. D was charged with malicious wounding under S20 OAPA 1861. The jury found that the injuries to W were “purely accidental “and could not reasonably been expected. However the doctrine of transferred malice rendered this irrelevant. D was guilty ➔ R v Pembliton 1874 ■ threw a stone at some people → it broke a window. ■ The offence must be of the same nature ■ This meant that the Mens rea for assault could not be transferred to the criminal damage offence Forming Criminal Liability For an offence to take place, the actus reus and mens rea must coincide in time. ➔ Thabo Meli v R (1954) ■ Ds attacked a man and, believing they’d killed him, pushed him off a cliff. In fact he was still alive but died from exposure when unconscious at the bottom of the cliff. The D’s were found guilty as in a series of acts the MR and AR were found to have mixed. When there is a continuing act for the Mens Rea and at some point the Mens Rea exists during that time, the two coincide: ➔ Fagan v Metropolitan Police Commissioner (1986) ■ D was told by a police officer to park in a particular place and accidentally drove onto the policeman’s foot. When the policeman asked him to remove it, D left it there for several minutes. His decision not to remove the car was the moment of the Mens Rea’s coincidence with the AR. Absolute and Strict Liability ➔ These are offences that do not require the Mens Rea for at least part of the Actus Reus ➔ Nearly all strict liability offences must prove that the act was voluntary. ➔ Those that don’t are offences of Absolute Liability: ■ R v Larsonneur (1993) ● D was ordered to leave the UK as a foreign ‘alien’. She went to Eire but was sent back here and found guilty of unlawfully being in the country despite having been forced to do so. ➔ All offences start out with a presumption of mens rea. Where the courts then decide it isn’t, for at least part of the actus reus, the offence becomes one of Strict Liability: ■ R v Prince (1875) ● D took an unmarried girl under 16 out of her father’s possession, but genuinely believed she was 18. M.R for the knowledge of age section of the offence wasn’t required. Guilty ➔ There must be no defence of due diligence available: ■ Harrow LBC v Shah and Shah 1999

●

D’s owned a newsagent. Frequently reminded staff to check age when selling lottery tickets. 13 year old slipped through net, guilty despite making every effort to avoid situation as no defence of DD in act. ➔ There must be no defence of mistake available ■ Cundy v Le Cocq (1884) ● D’s pub sold alcohol to a drunk person. D hadn’t acted drunk or shown any signs of intoxication and no one had realised but no defence of M in act so guilty. Reform to Strict Liability ➔ Absolute Liability is extremely harsh, imposing liability on people who aren’t really blameworthy ➔ Parliament doesn’t seem to have a sensible pattern of when they do or do not apply the defences of due diligence or mistake in legislation ➔ Strict Liability may be imposed where the D wasn’t even aware of a risk ➔ Does it really improve standards? If precautions against a risk are more expensive than a possible fine, will the precautions really be taken? ➔ Strict Liability may be imposed even where there is a severe social stigma: ◆ R v G (2008) – D was a 15 year old boy who had consensual sex with a 12 year old girl who admitted that she had told him she was also 15. Guilty of statutory rape and put on the sexual offenders register.

Murder ➔ Murder is a common law offence. This means there is no Act of Parliament outlining the law on murder. Therefore, the law on murder has been developed in the courts over the years. ➔ There are two ways in which a person can be found guilty of murder: ■ If he intends to kill the victim and he succeeds in killing the victim. This is express malice aforethought. ■ If he intends to cause grievous bodily harm to the victim, and the grievous bodily harm causes the death of the victim. This is implied malice aforethought. ➔ Murder definition: ■ When a man of sound memory unlawfully kills someone with malice aforethought, express or implied. Actus Reus of Murder ➔ [Unlawfully] causing the death ■ All previous cases on ommission ■ R v Clegg (1995) ● Soldiers and police may kill in the course of their duties but will be liable for murder if they go beyond their duty or use excessive force ■ Dr Bodkin Adams 1957 ● doctors may lawfully kill in limited circumstances such as when administering pain relief ➔ Of a Person in Being - requires the victim to be a human being → excludes animals but raises questions as to at what point does one become and stop being a human being ■ Attourney general’s reference (no3 of 1994) (1997) ● A foetus is not classed as a human being and therefore a person who kills a foetus can not be charged with murder ● A foetus only becomes a human being when it has been fully expelled from it mother and has an independent existence ■ R v Malcherek and Steel (1981) ● ending life-support for braindead → not murder ● A person ceases to be a human being when their brain stem ceases to be active irrespective of whether they are being kept alive by artificial means ■ R v Inglis (2011) ● Mercy killing (e.g. killing someone to stop them going through pain) → murder ➔ Under the Queen’s Peace ■ Excludes killings which take place in accordance with the rules of war. Mens Rea of Murder ➔ With intention to kill or Intention to cause grievous bodily harm ■ R v Vickers [1957] ■ R v Cunningham [1982] ➔ A Man of Sound Memory

■

■ ■

Not insane with the M’Naughton Rules (test applied to see whether D was sane at the time → criminally responsible for the wrongdoing) Not suffering from diminished responsibility Over the age of 10

Manslaughter Definition - The crime of killing a human being without malice aforethought, or in circumstances not amounting to murder.

Loss of Control ➔ Before 2009 → Provocation used as defence ■ Included ‘anything said or done’ (e.g. crying baby R v Doughty 1986) ■ Unclear which characteristics of D could be considered: all (Morgan Smith 2001) or just sex and age (R v Holley 2005) ■ Gender biased? Women who killed violent partners struggled (R v Ahluwalia 1993,R v Thornton 1996) but men who ‘snapped’ after nagging or discovering infidelity succeeded. ➔ The Coroners and Justice Act 2009 abolished the defence of provocation and has replaced it with a new defence of loss of control. ■ This came into force October 2010 ■ S.3 of the Homicide Act 1957 and the common law of provocation< s.56 Coroners and Justice Act 2009. ■ The defence of loss of control is a partial defence that may reduce liability for murder to manslaughter. ➔ A person who kills or was party to a killing may be convicted of manslaughter rather than murder where there exists: ■ a loss of self-control ● D must have lost self-control – subjective test ● There is no requirement that the loss of self-control be sudden (s.54(2)) ■ the loss of self-control had a qualifying trigger

●

■

Under the old law of provocation virtually any act was capable of being used as evidence of provocation. This was considered problematic in that it was too wide. ● S.55 (3) Where D's loss of self-control was attributable to D's fear of serious violence from V against D or another identified person ● S.55 (4) Where D's loss of self-control was attributable to a thing or things done or said (or both) which ✦ constituted circumstances of an extremely grave character ✦ caused D to have a justifiable sense of being seriously wronged ● R v Hatter (2013) ✦ breakdown of a relationship is not a sufficient reason a person of D's sex and age, with a normal degree of tolerance and selfrestraint and in the circumstances of D, might have reacted in the same or in a similar way to D.

Diminished Responsibility ➔ Partial defence only to murder (not attempt) ➔ Abnormality of the mental functioning caused by a recognised mental condition. ■ Battered woman syndrome (R v Hobson 1997, R v Ahluwalia 1993) ■ Pre-menstrual tension (R v Smith 1982, R v Reynolds 1988) ■ Epilepsy (R v Campbell 1997) ■ Chronic depression (R v Seers, R v Gittens 1984) ■ Some illnesses not acceptable even if listed by World Health Organisation (R v Dowds [2012]) ➔ The abnormality must provide an explanation for D’s act or omission in being party to the killing ■ abnormality must be caused by an inside source and that outside factors causing the abnormality such as alcohol or drugs could not be taken into account unless the abnormality was as a result of the disease of alcoholism or drug addiction or long term damage caused by the intake of such intoxicants ● R v Tandy (1989) ● R v Wood (2009) ● R v Stewart (2009) ■ The same approach is applied where the defendant is intoxicated by prescription drugs ● R v O'Connell 1997 ■ Where there exists an abnormality of the mind in addition to intoxicants ● R v Gittens (1984) ✦ Up to jury to decide whether or not the defendant would have committed the crime had he not been intoxicated → make subsequent decision Suicide Pact ➔ Section 4 of the Homicide Act 1957 ■ reduces murder to manslaughter where the survivor of a joint suicide pact, took part in the killing of another person in the pact or was a party to that other person being killed by a third person.

Constructive Manslaughter ➔ A form of involuntary manslaughter in that an unlawful killing has taken place where the defendant lacks the mens rea of murder. ➔ The offence of constructive manslaughter can be broken down into: 1. There must be an unlawful act ■ R v Franklin (1883) ● For constructive manslaughter there must be an unlawful act. ● The unlawful act must constitute a criminal offence ■ All elements of the unlawful act must be present. If there is no unlawful act, there can be no conviction for constructive manslaughter ● R v Lamb [1967] ■ Children playing with revolver ● R v Scarlett [1993] ■ Drunk man ejected from pub → hit his head and died → NA ● R v Lowe [1973] ■ For constructive manslaughter there must be an unlawful 'act' ■ The offence could not be committed by an omission. ● R v Larkin (1942) ■ The appellant waved a razor about intending to frighten his mistress's lover. He claimed his mistress, who was drunk, blundered against the razor and was killed when it cut her throat. ■ The unlawful act need not be directed at the victim 2. The unlawful act must be dangerous ■ R v Church (1965) ● the unlawful act must be such as all sober and reasonable people would inevitably recognise the risk ■ R v Dawson and others [1985] ● Three defendants attempted to rob a petrol station wearing masks and were armed with a pickaxe handle and replica guns. The petrol attendant was aged 60 and suffered from heart disease. He subsequently died. ● a reasonable person present at the time of the attack would not have known about heart condition 3. The unlawful dangerous act must cause death ■ R v Dalby (1982) AND R v Kennedy [2007] ● Supplying drugs does not count as causing death ■ R v Carey & Ors [2006] ● V punched in face. Ran away, she had diseased heart and died when running away. Assault dangerous but not cause of death Gross Negligence Manslaughter ➔ Gross negligence manslaughter can be said to apply where...