Criminal LAW YEAR 1 Outline PDF

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Criminal Law Outline – 2018-19

Actus Reus and Mens Rea

CYCLE 1 | ACTUS REUS AND MENS REA I.

OVERVIEW Actus reus and mens rea are taught in relation to murder (a form of homicide) but the principles apply in the same way throughout the offences covered.

II.

ACTUS REUS The “guilty act.” The conduct/external element of the offence. It describes what D must be proved to have done (or have failed to do by omission), in what circumstances and with what consequences in order to be guilty of a crime. It identifies the conduct which the criminal law considers harmful. Must be beyond reasonable doubt- goes with the autonomy principle. Actus Reus of a crime may involve different aspects: 1. Proof D did a particular act 2. Proof that the act caused a particular result 3. Proof that the act or result occurred in certain circumstances

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A.

Voluntary Act “Requirement” Many criminal offences require proof that the D performed a voluntary act. BUT some only require proof of state affairs and sometimes a D can be convicted in respect of the actions of another. Where D is not acting voluntarily or said to be acting as an automaton and will not be guilty of an offence; this is because both the MR and AR will not be proved. A voluntary act is defined as conduct which is performed consciously.

B.

Omissions A defendant is only guilty of a crime when failing to act, where they are under a duty to act. Generally a person will not be liable for simply failing to act. There is no law in English and Welsh law that criminalises the failure to act. But not to say that a D is never criminally liable for an omission, they can be criminally liable for an omission where there is a duty to act in a particular way.

Criminal Law Outline – 2018-19 1.

Actus Reus and Mens Rea

When D is under a duty to act Duty to act may arise via statute or contract, or be assumed e.g. parental, or via voluntary assumption of care, or may arise where D creates a dangerous situation. a)

Statutory duty In some situations there is a statutory duty to act. For example, to provide details of insurance after a traffic accident or to notify DVLA when you sell a vehicle. Failure to do so will lead to criminal liability.

b)

Duties of law enforcement Police officers have a duty to assist members of public in danger; if they fail to do so they will be criminally liable.

c)

Contractual duty If a person owes a contractual duty to act, then a failure to meet this contractual duty may result in criminal liability.

 d)

Assumed duties People who voluntarily assume responsibility for another’s welfare will be under a duty to care for him or her; failure to do so will result in criminal liability. This includes: parental, explicit or implied care.

  e)

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Ashworth [1989:446]:

Continuing act The courts held that some cases which appear to be cases involving omissions which involved a ‘continuing act.’ This is best explained in the case below.

  g)

Gibbins and Proctor (1918) 13 Cr App R 134: Parental Stone and Dobinson [1977] QB 354: Implied

Ownership / Control of property Where someone owns a piece of property and another person in their presence commits a crime using that property, the owner is under a duty to seek to prevent the crime in so far as is reasonable.

 f)

Pittwood (1902) 19 TLR 37:

Fagan v MPC [1969] 1 QB 439: Thebo Meli [1954] 1 WLR 228:

Creation of danger If a person creates a dangerous situation through his own fault, he may be under a duty to take reasonable steps to avert that

Criminal Law Outline – 2018-19

Actus Reus and Mens Rea

danger, and may therefore incur criminal liability for failing to do so.

 h)

R v Miller [1983] 2 AC 161:

Novel situations As the law continues to develop, the list of exceptions is not necessarily a closed list and the courts may be willing to create new circumstances under which there is a duty to act.

2.

What is required when there is this “duty”? The D must do what is reasonable, and what is reasonable is to be decided by the jury. Even where it may be unreasonable to act, it may still be reasonable to seek help.

3.

When will omission = result? It must be shown that the omission has directly caused the harm. Had D acted reasonably in accordance with their duty the harm would not have occurred. 

4.

Dalloway [1847] 2 Cox CC 273:

Distinguishing between omissions & acts Though there is a sharp line between the two, there can be great difficulties distinguishing between them. Jeremy Horder: ‘although there are some clear cases of omission and some clear cases of act, there are many ambiguous cases in which the act-omission distinction should not be used as a cloak for avoiding moral issues’

C.

Speck [1977] 2 All ER 859:



Airedale NHS Trust v Bland [1993] AC 789 (HL):

Causation From the factual causes, the law selects the one(s) which are the legal cause 1.

Factual / “But for” causation D’s act is a factual cause of the result, if, ‘but for’ the D’s act, the result would not have occurred. Sine qua non causation. Something cannot be a legal cause unless it is a factual cause. Legal cause = Factual cause BUT Factual cause ≠ Legal cause. Factual causation is too wide to be used as a general rule, can possibly rule out other potential causes.

 

3



White [1910] 2 KB 124: Dyson [1908] 2 KB 454:

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Actus Reus and Mens Rea

Legal Causation Legal cause = Factual cause BUT Factual cause ≠ Legal cause a)

Substantial D’s act must be a substantial cause / significant contributor of the outcome.

 Cheshire [1991] 3 All ER 670: b)

Operating/ Breaking the Chain of Causation D’s act must be an operating cause of the result, the effect of the original act. No interfering acts between the original act and death. “Break in chain of causation” / novus actus interveniens. No longer criminally liable. Breaking the chain of causation: free, voluntary informed act which renders the original act no longer a substantial and operating cause of the result. 1. Acts of a Third Party 2. Victim’s acts 3. ‘Natural event’ / ‘Act of God’

 i.

A free, voluntary and informed act Only the free, voluntary and informed acts of a third party will break the chain of causation. Renders original act no longer the substantial and operating cause of death. 

ii.

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Kennedy [2008] AC 269:

Rendering the D’s actions no longer an operating and substantial cause To amount to a novus actus interveniens the act of the third party must have rendered D’s original act no longer an operating and substantial cause. Compare Cheshire [1991] with Jordan (1956).  

iii.

Rafferty [2007] EWCA Crim 1846: j

Cheshire [1991] 3 All ER 670: Jordan (1956) 40 Cr App R 152:

Omissions of third parties As a general rule, it would seem that omissions of a third party cannot break the chain of causation. This is because an omission cannot render the D’s act no longer an operating and substantial cause.

Criminal Law Outline – 2018-19 iv.

c)

Actus Reus and Mens Rea Acts of Victim Breaking the Chain An act of the victim will not break the chain of causation unless the victim’s actions were unreasonable and disproportionate in the circumstance.

 R v Roberts [1971] 56 Cr App R 95 (CA):  R v Blaue [1975] 3 All ER 446 (CA): “Thin Skull” Rule States that D must take their victims as they find them. No defence on the basis that it was the condition of the victim that can cause their death and break the chain of causation.  

d)

III.

Hayward [1908] 21 Cox CC 692: Blaue [1975] 1 WLR 1411:

A Natural Event / Act of God A natural event will not normally break the chain of causation.

MENS REA The “guilty mind.” The mental / fault element of the offence. This is the state of mind that D they need to have had when the actus reus was created. Role of MR is to ensure only blameworthy D are punished. The ordinary meaning of intention: it is widely accepted that the defendant intends a consequence of his action if he acts with the aim or purpose of producing that consequence Must be remembered that the jury must be persuaded beyond reasonable doubt that D had intended the result. A.

Intention The purpose or aim to get the result. If result was seen as virtually certain to occur as a result of D’s actions and the D realised this, then the jury are entitled to find that the D intended the result. Intention requires the highest degree of fault of all the levels of mens rea. A person who intends to commit a crime, can generally be said to be more culpable than one who acts recklessly e.g. if you intentionally kill someone, that would be generally worse than killing someone recklessly or negligently. 1.

Direct intention:  

2.

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Maloney [1985] 1 AC 905: Purpose or aim Hales [2005] All ER (D) 371 (Apr): Not motive or desire

Distinguishing (direct) intention and:

Criminal Law Outline – 2018-19 i.

Actus Reus and Mens Rea

Foresight: D cannot be said to act with the purpose of producing a result if he did not believe that the result could possibly be caused by their act. Motive: It is possible to intend a consequence without wanting it to happen. Eg “prepared to kill in order to escape” Premeditation: Person may act instinctively in the heat of the moment but still have intention to produce a certain result.

ii. iii.

3.

Inferring / Oblique Intention Exceptional, borderline cases. Jury are entitled to find intention if result was subjectively a virtual certainty (Woollin). Cases where even though it is likely that the result will occur following D’s actions, the result was not D’s purpose

4.

Woollin Certainty Test: A useful chart for deciding whether a defendant has intention. 

Woollin [1999] AC 82:

1. Was it the result of the D’s purpose? a. YES: he intended it. b. NO: ask the next question; a. Was the result a virtually certain result of his actions and did D realise that the result was a virtually certain result of his actions? a. YES: then the jury is entitled to find that he intended the result. b. NO: he did not intend the result. a)

“Virtual certainty” Means that the result will occur unless something completely unexpected occurs. As certain as we can be about anything. ASK: Must the jury find intent or may the jury find intention?

5.

Intoxication + Intent It is difficult to prove intention when D was intoxicated at the time of the offence, as they might not have formed the MR. The jury or magistrates should consider the intoxication as part of the evidence in deciding whether the result was D’s purpose or whether they foresaw the result as virtually certain.  i.

If the drunken D had as their purpose the result they intended it: a drunken intent is still an intent

 6

Moloney [1985] AC 905 (HL):

Majewski [1977] AC 443 (HL):

Criminal Law Outline – 2018-19

ii.

B.

Actus Reus and Mens Rea

If the drunken D lacked intent, they are not guilty of an intentbased crime, although he may be guilty of a recklessness-based offence.

Knowledge & Belief For some offences it must be shown that the defendant did an act knowing or believing that a certain state of affairs existed. It should be noted that in cases where the mens rea is knowledge, careful consideration should be given to which aspects of the actus reus need to be known. The difference between knowledge and belief appears simply to be based on whether the facts known or believed turned to be true: if they were true then the defendant knew them to be true, if they were false the defendant believed them to be true.

C.

Recklessness A subjective test. D will be found to be reckless if they were aware of the risk and appreciated that because of their actions there was a chance that the result might occur and that it was unreasonable for them to act as they did. Cunningham [1957] 2 QB 396, 399:



1.

Cunningham Recklessness: The legal standard = subjective recklessness. Two elements that need to be shown. i. ii.

The defendant was aware that there was a risk that his or her conduct would cause a particular result. (subjective) The risk was an unreasonable one for D to take. (objective)

Necessary to show that D foresaw that there was a risk, but it does not have to be foreseen as highly likely to occur. Whether D foresaw the risk, not whether the risk was obvious or would have been foreseen by a reasonable person.  Stephenson [1979] QB 695: 

Linking to subjectivity: look again at pg 175 o Subjectivists focus on what is going on inside D minds when they commit the crime. o What did they intend, foresee, know or believe?

 2.

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R v G [2004] 1 AC 1034: Facts of this case reinstate Cunningham

Caldwell Recklessness: Caldwell recklessness has now been replaced by Cunningham and been abolished. It was different as it included D who were not aware of

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Actus Reus and Mens Rea

obvious risk. It fell into disrepute because it punished defendants for failing to notice a risk which would have been obvious to the reasonable person. i. ii.

D were aware of a risk; OR There was an obvious and serious risk AND they failed to consider whether or not there was a risk.

This was abolished by R v G in which it reinstated Cunningham to be the subjective 2 stage test for recklessness D.

Transferred Malice / Mens Rea Applies to any mens rea, not just malice. Applies where the mens rea of one offence can be transferred to another. Transfers the mens rea / intention to another. When answering a problem question always remember that whenever the doctrine of transferred mens rea applies there are always two offences to consider: i. An attempt to commit the intended offence ii. The full offence involving the harm occurred

  E.

Gnango [2011] UKSC 59: Grant [2014] EWCA Crim 143:

Negligence If D has behaved in the way in which a reasonable person would not, then they are negligent. Sometimes the mens rea of a crime is negligence. However, it should be noted that negligence plays a minor role in criminal liability: it used to form the basis of some driving offences but this has largely been superseded by recklessness. Negligence uses an objective test : 'did the defendant behave in a way which was reasonable in the circumstances?' If the defendant behaves in the way in which a reasonable person would not then he/she is negligent Look at gross negligence at Gross Negligence Manslaughter.

IV.

MURDER It must be remembered that to argue either murder or manslaughter in a problem question there must be a death. Murder is the most serious type of homicide and will always have a life sentence by the judge; mandatory life sentence. Conduct which ends in a result = a death. Murder: D killed V with intention to kill or cause GBH (grievance bodily harm). Voluntary Manslaughter: would be murder. Involuntary: caused the death but had no intention, but there is still sufficient fault to justify it as a criminal liability.

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Criminal Law Outline – 2018-19 A.

Actus Reus and Mens Rea

Actus Reus Actus Reus of murder is the unlawful killing of another person in the Queen’s peace.D caused death of V (a person) via a positive act or omission of a duty to act. Terms in which murder is classified as “actus reus” - A person; V must be a human being who was alive when the accused cause their death. - Controversies concerning when life begins and when life ends - Unlawfully; there was no valid defence, if D had to rely on self-defence they have not killed unlawfully (link to C12: DEFENCES) - Queen’s peace; when there is no war, killing of enemy aliens during war is not criminal homicide. - Killed; D causing death of V, normal rules of causation apply - D unlawfully caused the death of another person - Unlawfully; no valid defence (self-defence) → link to Chapter 12: DEFENCES - Causing death- normal rules of causation apply - Of a person; V must be a human being who was alive during the time when the accused caused his or her death.

B.

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Mens Rea for Murder D intended to kill or cause GBH. Intention can be direct or oblique

Criminal Law Outline – 2018-19

Manslaughter

CYCLE 2 | MANSLAUGHTER I.

OVERVIEW Manslaughter involves a situation where D has caused the death of V but is less culpable than murder and carries a discretionary sentence. It must be remembered that to argue either murder or manslaughter in a problem question there must be a death. There are two distinct categories of manslaughter: (1) Voluntary manslaughter: occurs when D satisfies the actus reus and the mens rea of murder, but extenuating circumstances make D less culpable; and (2) Involuntary manslaughter: occurs when D fails to satisfy the mens rea for murder (in other words, only the actus reus is met).

V.

VOLUNTARY MANSLAUGHTER Voluntary manslaughter would be murder but for the existence of defined extenuating circumstances. Voluntary manslaughter recognises there may be circumstances in which D does not deserve the label of murderer. There are two types of voluntary manslaughter: (1) Loss of Self-Control; Ss54-55 CJA 2009 (2) Diminished Responsibility; S52 CJA 2009 A.

Partial Defence (an Excuse) D has the requisite actus reus and mens rea for murder but can claim a partial defence that mitigates D’s culpability. The partial defence reduces the sentence from murder to manslaughter. In practice, this means that D must first be found liable for murder. D then puts forward the excuse as mitigating the circumstances from murder to manslaughter.

B.

Loss of Self-Control (Sections 54-55 CJA 2009) For loss of control, D must have killed V as a result of a loss of control caused by a qualifying trigger. Sections 54-55 of the Coroners and Justice Act 2009 set out loss of control and have completely repealed Section 3 of the Homicide Act 1957 (the old partial defence of provocation). The defence was introduced following widespread criticism of the old provocation defence, such as:  Anger is a criminogenic emotion, and the role of criminal law is to curb violent responses caused by angry states.  The defence privileged male angered states and excluded women who killed out of fear or self-reservation. See Aluwalia. >> Miles: “a dog’s breakfast of reform.” 1.

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S 54 “loss of control” at the time of killing The test is a subjective test that is not defined within the Act and focuses on D’s reaction. It no longer requires a “sudden and temporary”

Criminal Law Outline – 2018-19

Manslaughter

(Duffy (1949)) loss of control as per the old standard under provocation. Ask: Was there an actual loss of self-control? Ask: Was there a causal link between the loss of self-control and the relevant act or omission? (S 55(1)(a)) 

Jewell [2014] EWCA Crim 414: ...