English Criminal Law Exam Review PDF

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English Criminal Law Part One: Criminal Theory Principals of Legality -

Offences should be clearly defined The law must be capable of being obeyed Law must be readily available

Principal of Responsibility -

People should not be convicted for conduct they had no control over

Principal of Proportionality -

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Sentence should reflect the crime o How do you assess? (Feinburg) 1. Physical integrity of victim 2. Material support and amenity 3. Freedom from degrading treatment 4. Privacy and autonomy Focus on the impact on the life of the victim

What conduct should be criminal? -

Governments decision to criminalize something is normally a matter of political expedient There must be political pressure to create law o Respond by developing legislation

Autonomy -

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Right of autonomy protects the right to life 3 crucial roles 1. justifies existence of criminal law  prevent someone’s autonomy from being interfered with 2. restricts extend of criminal law  autonomy principal explains why it criminalizes actions which cause harm to others 3. it justifies censure although the right of autonomy is natural it is still necessary to have regulation for it

Harm Principal -

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Harm principal supersedes autonomy J Stuart Mill o The only purpose for which power can be rightfully exercised over any member of society against his will is to prevent harm to others Harm principal

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o Person should be allowed to do/say what he/she likes provided that this does not harm the interests of others DPP v Gough 2013 o Naked man violating public order o He wasn’t harming anyone o Offences involve more than concern/ disapproval

Culpability -

Needs to show that D was blameworthy in causing harm o Harmful act + blameworthy state of mind

Subjectivism / Objectivism Debate -

Subjectivist o Criminal liability should be determined by looking inside the D’s mind Objectivist o Behaviour of D & asked what a reasonable person would do

Criminal Liability -

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Complex and contradictory rules Motive is generally irrelevant to liability o Criminal law is not blind to why a person commits a crime Burden of Proof o Requirement on a party to adduce sufficient evidence to persuade the factfinder Reverse Burden of Proof o Defendant has to prove a defence  Insanity  Diminished responsibility

Elements of Criminal Liability -

3 elements must be present o Actus Reus + Mens rea + absence of Defence In general o the burden of proof is on the prosecution to establish guilt beyond reasonable doubt

Actus Reus -

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Actus Reus Conduct element of offence What the D did or failed to do

Mens Rea - Mental element Intentions/ recklessness/ negligence

Actus Reus -

Generally a positive act o Killing / appropriating another’s property o But there are exceptions  Omissions  State of affairs  Vicarious liability  Innocent agency

Voluntary Act -

Failure to act, omission = criminal liability State of affairs/ set of circumstances o Eg. Possession of a firearm D can be responsibility for acts of another

Omissions -

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Criminal liability for an omission when there was a duty to act in a particular way Omission crime = statutory crimes Statutory duty o Road Traffic Act  fail to provide breath sample Duties of Law enforcement o Under a duty to assist anyone in danger Contractual duty o Pittwood 1902  Employed as a gate keeper on a railway  Failed to close the gate = man died  Hadn’t performed his contractual duty Assumed duties o Voluntary assume responsibility for another’s welfare  Looking after a vulnerable person Parent is automatically responsible for caring for a child o Sheppard 1862  No duty owed by parent to 18-year-old  Child reaches age of majority duty ends o R v Nicholls 1874  Grandmother doesn’t necessarily have a duty to care for grandchild o Barras 2011  Adult taken on a responsibility for elderly mother = duty of care o Evans 2009  Failed to get help for 16 year old daughter after she collapsed from heroin o Gibbons v Proctor  failed to feed the mans 7 year old child, and child died from starvation  both were convicted  gibbins had a duty to care b/c he was father

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 proctor = voluntarily took responsibility of child o R v Stone and Dobinson 1977  Sister was anorexic, accused didn’t seek help, died of neglect Public duty to act o Dytham 1979  Standing by exit of club  Thrown out fo a club and beaten to death  Police officer watched and didn’t do anything, failed to take reasonable steps Creation of danger o R v Miller 1982 *  Drunk fell asleep with cig in hand, set mattress on fire  Moved to another room, convicted of arson Person with a duty must act and take reasonable steps

What is required for a duty to act? -

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D must do what is reasonable (decided by jury) R v Jenkins v HM Coroner o Partner and friends advised him to see a doctor  Due to beliefs didn’t see one o Court rejected argument friends breached their duty b/c it was his choice to summon help Airedale NHS v Brand 1993 o Injured @ Hillsborough football ground o Persistent veg state, parents sought court declaration to stop life support o No further interest in being kept alive but his inability to make choice = gone

Causation Causation - An act caused a particular consequence - Causation is a simple matter of common sense o Each person is responsible for he/her own actions

But For -

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D’s actions is a but for cause of a result if… o But for the D’s actions the result wouldn’t have occurred Something cannot be a legal cause unless it is a factual cause Dyson 1908 o Dying form meningitis, died of injuries o But for the actions of D, vic would not have died White 1910 o Put poison in vic’s drink, suffered heart attack o Poison and heart attack = unrelated  Therefore poison was not cause of death

But for an operating and substantial cause 1. Substantial o Must substantially contribute to the end result  Not be a slight or trifling link o R v L 2010  Sufficient if the D’s act had been more than negligible contribution o Hughes 2013  Be more than minimal 2. Operating o Act must be an operating cause of the result o Nothing can break the chain of causation  Novus Actus Interveniens o Rafferty 2007  Hit the vic then drowned vic  Novus actus of Rafferty was not held to have cause the vic’s death

3 Situations Chain can be broken

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1. 3rd party  poor medical treatment 2. victim 3. acts of god  natural events Novus actus Interveniens o Free, voluntary and informed act of a 3rd party which renders the original act no longer a substantial and operating cause of the result o Jordan 1956  D injured the victim  Injury had nearly healed, dr gave and antibiotic which the vic was allergic to and died  That broke the chain of causation R v Kennedy * o Prepared syringe of heroin, injected vic, and vic died o Kennedy charged with supplying drug and manslaughter o Principal  1) free voluntary act & informed act  2) renders D’s acts no longer substantial

Voluntary Free Act -

Wise v Dunning 1902 o Gave an anti-Catholic speech, Catholics in the audience may react violently o Court was willing to accept that the preacher caused spontaneous violence 1. If someone is acting to preserve on life the act will not be free  Ginango  Shooting match, other man had accidently shot a passer-by, responsible for own actions

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2. Acting in order to assist law enforcement will not be a break in the chain  Pagett 1983  Kidnapped her & she was killed by a marksman cop, cop was acting lawfully 3. Moral obligation will not break the chain  Passerby act may not breack the chain  Medical practice/ assistance doesn’t break  Malcherek & Steel 1981  Switched off life support held not to have caused death  R v Cheshire 1991*  Shot vic in leg and stomach  Trach tube put in, complications with the wind pipe narrowing  Rare but not unknown completion o Complications were direct cause of death by D R v Roberts 1971 (vic breaking chain) o Jumped out of car injuring self o Causing actual bodily harm o Test in Roberts = vic acted reasonably but was action foreseeable? Lewis 2010 o Was the vic’s response expected? Blaue 1975 o Blood transfusion b/c of stabbing o D convicted of manslaughter, eggshell skull rule  Religious convictions included In the eggshell skull rule Dear 1996 o Vic stabbed, vic dies b/c he reopened wounds o Even if vic deliberately reopened wounds D’s actions could be found to have been substantial cause of death Dhaliwal 2006 o Accept that a husband who has been abusive and cause her to commit suicide was a causal factor

Eggshell Skull Rule -

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Eggshell Skull o D must take vic as they find them  No defence to say death/ injury was cause by physical condition of vic Hayward o Chased wife out of the house and she collapsed o Medical abnormality if she suffered fright/ physical exertion she might die  Therefore the husband could be said to have cause death

Act of God -

Something like a bolt of lightning Gowas 2003 o Attacked vic and put him in a coma o Caught serious infection and died  Therefore an act of god cause death

Actus Reus & Causation: Theories! Voluntary Requirement -

Actions are will body movements Objections  absurdity o Traditional view does not encompass enough and thus creates an absurdity Control principal o Unjust to impose criminal liability for state of affairs = D has no control Agency principal o Liability be imposed, expressive of D’s agency

Should Criminal Law Punish Omissions? -

Cannot be said that omissions caused a result Omission to act the same as every else’s failure to rescue What would create and absurdity? o Wouldn’t be normal for someone not to rescue a child Social/ moral obligation

Argument Against Holding People Responsible? -

Should the law punish things that are out of D’s control? o Only punish things that are out of their control

Consequences do Matter -

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Universal reactions reflect a moral truth Lying example o Action reason  not performing certain actions o Outcome reason  reason for not preforming the action as potential bad consequences may flow from that We are defined from what we do Not responsible  causation = middle ground of responsibility Not possible to set out guiding principal o Case by case basis

Concluding Thoughts -

Defines the harm done to the vic and wrong performed by the D o Struggled t produce set of principals Criminal law operates under assumption o We are all responsible for our own actions regardless if the result is out of our control

Mens Rea Mens Rea - D’s mental state (some crimes do not require any proof of mental state)

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Mercy killer and contract killer may both intend to kill but most people wouldn’t regard their conduct as equally wicked

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Yip Chiu – Cheung 1995 o Undercover officer pretending to be a drug dealer o Mens rea was confirmed by his behaviour isn’t blameworthy

Intention -

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Intention = Purpose or aim Golden rule o Judges don’t define intention by telling jury to give it its ordinary meaning When it’s not clear if the D’s aim was to commit the actus reus o Must consider (TEST)  It was virtually certain to occur  And did the accused appricate this? Hales 2005 o Only in rare cases will the judge have to give more instruction D intends the consequence of his actions Cunliff v Goodman 1950 o State of affairs which the party intending does more than merely contemplate Haigh 2010 o Clearly D smothered her child but no evidence how/ circumstances leading to killing  Therefore jury couldn’t have been persuaded beyond a reasonable doubt Anthony Duff 1990 o Useful test: Had the result not occurred could it be said the D failed in his plan? R v Woolan 1999* o Killed 3 month old son, thrown on surface/ temper o Did the D realize that there was a risk of harm?  D foresaw death was a likely result, doesn’t mean he intended death

Recklessness -

Recklessness = risk taking 2 types of recklessness (only one in use)

Cunningham Recklessness 1) D was aware that there was a risk, that conduct would cause a particular result 2) Risk was unreasonable to take -

R v Cunningham o Stole gas meter and its contents from a house and fractured the gas pipe line o Gas escaped and entered into the house next door o Recklessness required that the vic had actually saw the future harm (actually had foreseen the risk)

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Stephonson 1979 o D suffered from schitzo, lit a fire in a haystack o b/c of an illness didn’t realise risk  thus he was not Cunningham Reckless Parker 1977 o Caused criminal damaged to phone booth o Court stretched recklessness to convict b/c they believed him to be blameworthy Foster v CPS 2013 o To be reckless it was not enough to show the D stopped to think about risk Unreasonable risk, usually never in dispute

Intoxication & Recklessness -

Voluntary intoxication o Failed to see risk they would have seen if sober = having foreseen risk Involuntary intoxication o They will not be reckless

Caldwell Recklessness (Now Abolished) -

Caldwell Recklessness o Aware of the risk OR o There was an obvious/ serious risk and failed to consider

Negligence -

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Negligence o D behaved in a way which reasonable person would not Uses an objective test o No need to shoe D intended or foresaw risk Ordinary negligence o The D’s actions fall below the standard of a reasonable person o Andrew 1937  Driving car and collided with motor bike  Lack of care due to an error of judgement o Simpson v Peat 1952  Driving dangerously and killed someone  manslaughter  Degree of negligence for manslaughter would require a high degree of negligence Gross Negligence o Negligence must be so bas as to justify criminal conviction o A D’s actions fall FAR below that of a reasonable person (TEST)  Here juries bring in their own moral ideas o Adomako 1995  It was obvious a tube came lose, patient suffocated, suffered heart failure and died

Recklessness v Negligence -

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Woolin o Where a result was not the D’s purpose but it was foreseen s virtually certain = reckless Difference o Reckless = must foresee the result o Negligence = whether D acted as a reasonable person

Intoxication -

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Voluntary Intoxication o Choose to take substance, can try to prove they lacked mens rea in crimes of specific intent and therefore not guilty  Crimes of basic intent, usually will be found to have the necessary mens rea Involuntary Intoxication o Can introduce evidence of involuntary intoxication and try to persuade jury Addiction is treated as voluntary intoxication Crimes of specific intent o Are those which have intention as their mens rea  Example  rape R v Heard 2007* o Sexual assault, drunk and exposed penis and rubbed it against cop, no memory o Drunken intent is still intent o Sexual touching must be intention The Current Law 1. Voluntary intoxication + Mens rea = Guilty  Drunken intent is still intent  Drunken recklessness is still recklessness 2. D = involuntarily intoxicated – Mens Rea = acquitted  Unaware of what they are doing and attacks  Not guild to assault b/c lack of mens rea 3. D – Voluntarily intoxication – Mens rea = Acquitted  D will be deemed reckless but will be acquitted of offence requiring intention  Eg. Murder, moved to lesser offence of manslaughter 4. Intoxicated to enable commission of a crime  Drunk for purpose of gaining courage to commit crime

Knowledge & Belief -

Knowing / Believing o Knowing/ believing a cerain state of affairs existed Handling stolen goods o Requires proof D knew they were stolen Knowledge requires positive belief o Reader 1997

Belief that property might be stolen is not enough for a belief that it is stolen Wilful Blindness o D deliberately shut his eyes to the obvious or refrained from enquiry o Test: what did the D know?  This is not an objective test but a subjective test 

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Transferred Mens Rea -

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Transferred mens rea o Person aims to harm one but misses and harms another AG’s Reference No 3 of 1994 o D stabs gf who was pregnant, c section performed baby dies after 121 days o Act of GBH cannot be transferred to baby b/c unborn child is not a person in the eyes of the law Actus Reus and Mens rea should coincide in time

Exceptions to Coincidence Requirement -

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Interval of time – as long as there is an unbroken chain of causation The act will be seen as a continuing act o One transaction D might perform act at one point without mens but later develop it o Fagan v Metro police  Cop asked D to pull over, ended up on cops foot  D didn’t move the car when asked  Was it deliberate or accidental? D might have mens at one point o And later without mens might preform the act  Thabo Meli  Le Brun On person might commit the act and another might have the mens o Cogan and Leak 1976

Actus Reus: Theory -

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Choice theory (Cunningham Recklessness) o People are only responsible for the things they chose to do , guilty if they actually commit the act Capacity theory o People responsible for that they choose to do  It is proper to punish people who could have chosen to act lawfully but didn’t Character theory o D is responsible for her/hers own character  Criminal actions reveal character Criticisms of Cunningham Recklessness

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o Choice theory  D cannot have chosen to take irks of which he was unaware o Fundamental difference between choice (advert Risk) & unexercised capacity (in advert risk) o Good moral judgment depend extensively on good causal judgement Negligence o Most often associated with minor offence which carry a slight stigma o A negligent actor has not chosen to risk harm to others  Negligent act doesn’t manifest a careless disposition  Could be on accident / forgetfulness o Negligence we often associate with indifference Intoxication o Strong link between alcohol and crim o Illegal drug use and crime – 30% were addicts o Alcoholism/ drug addiction as a kind of illness o Is alcohol/ drugs regarded as an aggravating factor or mitigating factors? Current law on intoxication o Presumption of recklessness  They are made aware of the risk Motive o Motive and intention are separate o Lynch v DPP 1975  He intended to assist in killing, even though his motive was to avoid being killed by terrorists o Steane 1947  Assisted the enemy under treat, held not to have committed a crime o Adams 1957  Dr gave pain meds, slightly shorted patients life, didn’t intend to kill, purpose was to relieve pain not kill o Misleading to say that motive is irrelevant  May help to establish purpose (driving force blind intent)  Some crimes involve proof of motive  Most relevant at sentencing stage o Difference lies in motivation not intention o Allan Norrie says  Once we look at what causes intention and look at motive we bring in complex social and political explanations for people’s actions o R v Moloney 1985  Drinking with father, had a good relationship, father dared D to fire the f...