Interaction OF AR & MR - Lecture notes 7 PDF

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The core of the offence due to the breadth of appropriation. ...

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LECTURE 7- INTERACTION OF AR & MR 1.

Withi n the STRUCTURE of an offence

2.

Withi n the application of an offence

Interaction of AR and MR within the STRUCTURE of an offence Standard case Criminal Damage

Actus Reus

Mens Rea

Conduct element

Any act (or omission) that causes the result

Voluntary

Circumstance element

The property damaged does not belong to D

Intention or recklessness

Result element

Damage

Intention or recklessness

Every element must be satisfied before labeling it as a crime.

Interaction of AR and MR within the STRUCTURE of an offence Ulterior mens rea: MR with no AR Theft

Actus Reus

Conduct element

Any act (or omission) causing the result

Voluntary

Circumstance element

What is appropriated is property What is appropriated belongs to another (ie, not exclusively to D) D’s conduct is dishonest

Knowledge Knowledge

Result element Ulterior mens rea element

Appropriation of V’s property

Mens Rea

Knowledge of dishonesty

Intention Intention to permanently deprive V of the property

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Ulterior mens rea elementessential for liability

Interaction of AR and MR within the STRUCTURE of an offence Strict liability: AR with no MR Causing a child to watch a sexual act

Actus Reus

Conduct element

Any act (or omission) that causes the result

Voluntary

Circumstance element

D is over 18 and V is under 16 or

None Lack of reasonable belief V is over 16 None

V is under 13

Result element

Causing V to watch a third person engaging in a sexual activity or an image of sexual activity

Ulterior mens rea

Mens Rea

Intention

Intention to gain sexual gratification

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Strict liabilityhave to perform the crime & act voluntaril y

Interaction of AR and MR within the STRUCTURE of an offence Constructive liability: AR with lack of MR as to result element Murder

Actus Reus

Mens Rea

Conduct element

Any act (or omission) that causes the result

Voluntary

Circumstance element

V is a person

Knowledge

Result element

Death of V

Intention to cause death or grievous bodily harm

Interaction of AR and MR when applying the offence to facts • Coinci dence problems: Coincidence of object (transferred malice) Coincidence of time EXAM- problem q scenario offences & seeing where you can find potential liability- will require AR & MR, where AR is completed & they also have MR- this looks satisfied but problems as not enough within lifetime both are completed. Must coincide in terms of object (must focus on same place) & coincidence in terms of time. Transferred Malice • D will be liable even if the target of his mens rea is not the same target as that of his actus Reus. • The law requires them to coincide, but where they don’t, the law will transfer the MR from one target in order to find the coincidence Jim • tries to kill Ken by shooting at him, but it turns out that it is not Ken after all.- d could say they didn’t intend to kill that person but another, could argue there was no mens rea- poor argument we say you did kill a person thus MR & AR took place • Jim (D) shoots at Ken (V) (actually is Ken), trying to kill him, but misses and kills Ted (V2) who is standing behind Ken in the bushes.- if d foresees risk, don’t talk about transferred malice. Transferred malice operates as rule in law to pretend that they were attempting to kill the person they did kill, even if this is not the person they intended to. • Used in bar fights where d misses their target- transfer MR to find liability

Transferred Malice (limits) You can’t transfer MR from one type of crime & pretend it is for another crime e.g. intention to kill a dog is not the same as intention to kill a person A double transaction is not possible- can transfer MR but cant go through a causal chain

Jim

• (D) tries to shoot ken’s dog (V), but misses and kills Ken (V2). • •

Jim (D) tries to hurt Ken (V) by hitting him. Ken falls into Jake (X), who falls into Ted (V2) (both being completely unexpected). AG’s Reference (No 3 of 1994) [1997] 3 All ER 936- d stabbed his pregnant girlfriend in the stomach, she was scanned after attack & there was no problem with the foetus but later ended up giving pregnancy prematurely as a result of the attack. Then, the baby died due to being received prematurely. In terms of MR- he didn’t intend to hurt his baby but his girlfriend. Court said there could be liability; the attorney general then repealed it to ensure the law hasn’t been misinterpreted. Went to HOL who said it was correct that there would be no liability- the case would require double transfer of MR. The unborn child was a legal entity in itself. The court said there could be liability for a constructive manslaughter- which doesn’t require MS to the death but simply the act.

Transferred malice – Reform? D • shoots at V. V2, hiding in the bushes, is shocked by the noise and dies of a heart attack. Question whether we find liability for murder number 2? • On the current law, this looks possible • Horde r – remoteness principle If both victim and method are unforeseen/unforeseeable it seems this will be stretching the principle too far- wanted remoteness principle to be introduced EXAM- in essay engage & discuss with this article, in problem questions you can still engage in academic material after apply the current common law & what will likely happen. Because it is an evolving common law doctrine & the article with Horder that there is likelihood that if this issue arose, the court may follow Horder’s remoteness principle to clarify the law. Coincidence in time of AR and MR Idea that AR & MR must happen at the same time to find liability Important not to talk too loosely about coincidence in time- it must be that d holds the required mens rea at the point he/she completes the act element of the actus Reus. Coincidence of AR and MR Larry really hates Harry because Harry had an affair with his wife. One night, whilst Larry is driving his car in the rain, he accidentally knocks over a man and kills him. At first Larry is devastated, but as soon as he realises its Harry, he can’t believe his luck. Not a murder- action might have caused death but it is not enough to have a general dislike or intention to do harm in the future- MR for murder is an intention to cause GBH by this act or omission- must be tied to the conduct of d D must hold the required mens rea at the point he/she completes the act element of the actus Reus. Larry hates Harry for having an affair with his wife. Larry drives to Harry’s house, pulls out a knife and stabs Harry. Having stabbed him several times, Larry comes to his senses

and regrets what he’s done. Larry calls an ambulance, which rushes Harry to hospital. Unfortunately the stab wounds are so serious, Harry dies in hospital. There would be liability because at the moment of the relevant conduct, d did act with the intention to cause GBH. Coinciding with the result element of the crime, d doesn’t have the MR element anymore. Coincidence is specific to conduct element of the crime, d in this case does have the conduct & thus does commit the event. Blaming d for their criminal choices EXAM- it is easy to talk loosely in exam about MR- talk with more precision, if you think MR of crime is satisfied then say: D must hold the required mens rea at the point he/she completes the act element of the actus Reus. - Shows you understand coincide rule When answering problem question always begin with what is the AR of the crime, did d satisfy this? Then ask the question if d had the required MR Absolute rule with no exceptions however, there are ways where it doesn’t seem that a case has coincidence: Problem 1: D does the act that causes the harm (the actus reus), however D only later holds the mens rea This is absolute rule- no exception but ways court can interpret to find coincide Problem 2: D does an act with the mens rea, but only later does the act that causes the harm (the actus reus). Problem 1: Actus Reus then Mens Rea Fagan [1968] 3 All ER 442- the solution was to stretch the conduct element- d accidently drive onto a policemen’s foot, the action element causing the harm to the victim is satisfied, the policemen was in pain asking d to move his car- the point which d realised what he had done but instead of moving his car immediately, he took his time. Question of could we find liability? MR did not accompany the conduct because he didn’t know what was happening, when he chooses to linger- the action was already over. Court found liability by reinterpreting what the conduct was- driving the car onto the foot & intentionally lingering whilst the car is on the foot. Can see courts not finding exception but twisting the law to find a point of coincidence. One solution is stretching the act element & another is instead of focusing on the action which doesn’t coincide with MR, look at an alternative omission to act which does comply with the MR. could have said in Fagan that they will focus on the omission to move the car when necessary- alternative way to find liability Miller [1983] 2 AC 161- tramp fell asleep in house, cigarette fell & led to fire. Court could have focused on act of dropping cigarette but no MR as d was asleep- he didn’t foresee, when he did was when he woke up, saw the fire but slept in near room. To use the Fagan approach & stretch AR would say it was all the same action which is problematic so rather than using this approach, the court focused on omission liability- he had a duty to act & was in breach of that duty, we have a conduct element based on criminal omission. Exam- in problem q identify both the solution & identify which one the court is likely to adopt & if you think this is possible at all.

Problem 2: Mens Rea then Actus Reus Single transaction of linking separate actions together to find a grouping- accepting they are separate but court says they are so tied together it should be seen as one action Thabo Meli [1954] 1 All ER 373- d planned to kill a victim & they came across him in remote location & hit him in the head, they believed they killed him, and then rolled him off cliff to hide what they did. Found from medical evidence that he didn’t die from being hit in the head (the action they did which they intended to kill him didn’t but rolling him of the cliff did.) the second action was not accompanied of MR, they didn’t intend GBH because they thought he was already dead. To find liability, the court said there was an issue of coincidence but it is so obviously correct they should find liability- argued it was always d’s plan to v on the head & roll off him a cliff thus the actions should be linked in a single transaction which at some point there was a MR. Church [1965] 2 All ER 72- involved d that was fighting with v & strangled her- didn’t have MR for murder but manslaughter. V then passed out, he believed he killed her, panicked & threw the body into the river. Medical experts found that he hadn’t killed her- she just passed out but his second action did cause her to drown and thus die. The court chooses the single transaction approach- linking the actions together. Now starting to extend the principle. In the previous case, it was a plan & here it was an unexpected killing & moment of panic no plan but court said actions could still be linked. Unclear what the borderlines are Le Brun [1991] 4 All ER 673- d had an argument with his wife, hit her & she passed out, he thought she died. at the time this happened, they were in the street, he tried to hide it by picking her up & dragged her to house. The dragging caused her death. Court did find liability for manslaughter on basis of single transaction- action with MR, which didn’t cause death, & then action, which did cause death without MS. The court said there was justification where there was continuation between the two acts. Interestingly, they applied this principle but also discussed an alternative which may be introduced by courts in future- rather than linking the single transaction, perhaps focus on the initial action with MR & ask using the generous rules on causation whether there was causal impact of the initial attack. As long as there was some causal element we could still you use. (Rules of Causation) We must find coincidence but there are various ways & examples of how the court could, find ways where scenarios are problematic. Coincidence of AR and MR D must hold the required mens rea at the point he/she completes the act element of the actus reus Exam- discuss at what point MR occurs, is it during the AR or in a separate omission? Then discuss the possibilities the court could use, the likelihood of the court using them & whether it is appropriate.

Application to problem facts questions in the exam

Step 1: Identify the potential criminal event in the facts

This should be simply stated (eg, ‘The first potential criminal event arises where D kicks V). The role of this stage is to highlight which part of the question you are answering before you begin to apply the law.

Step 2: Identify the potential offence

Again, state this simply (eg, ‘When breaking the vase, D may be liable for criminal damage’). The role of this stag is to highlight which offence you are going to apply.

Step 3: Applying the offence to the facts

Having highlighted a possible offence, stage 3 requires you to both identify th actus reus and mens rea of that offence and apply them to the facts.

Application to problem facts (step 3) • Actus Reus: o What is it? o Did D do it? • Mens Rea: o What is it? o Did D have it? ➢ If yes: – If D does satisfy the mens rea at that time and directed at that object then there is no problem with coincidence. You do not need to say more on the topic: by explicitly identifying the mens rea at that relevant time and directed at that relevant object you have already demonstrated that coincidence is present. – If D does not satisfy the mens rea at that time and directed at that object then there is a problem with coincidence. You can now highlight the problem; moving on to a full discussion of transferred malice and/or the reinterpretation of acts in order to see if coincidence can be found.

LECTURE- PROPERTY OFFENCES 1 • Theft- particularly shoplifting • Robbery • Burglary • Criminal damage Property Offences

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Proprietary rights as a species of personal rights? Right to deal with your own property as you wish without the interference of others which would affect personal autonomy Theft Act covers wide variety of violations relating to other’s property- covers infringement of someone’s rights over their property, having the intent can also be criminalised o Ashworth and Horder (2009; 368) Theft Act 1968 “shifted the emphasis of the offence from protecting possession to protecting ownership” Property offences exist primarily to reinforce and protect rights recognised by the civil law. o Dobson v General Accident Fire and Life Assurance Corp [1989] 3 All ER 927: whether property belongs to another “is a question to which the criminal law offers no answer and which can only be answered by reference to civil law principles”. o Dishonest acquisitive intention that makes it worthy of criminal sanction?

Types of property offence ◼ Theft Act 1968- specific actus reus involved, no general offence o Ss.1-6 – theft (week 6 and 7) o S.8 – robbery (week 7) o S.9 – burglary (week 7) o S.12 – taking motor vehicle without authority/ TWAC o S.22 – handling stolen goods ◼ Theft Act 1978 o s.3 – making off with payment ◼ Fraud (week 8) ◼ Note also criminal damage (s.1 Criminal Damage Act 1971) including arson A. Theft • Theft Act 1968, s.1: (1) A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; and “thief” and “steal” shall be construed accordingly. (2) It is immaterial whether the appropriation is made with a view to gain, or is made for the thief’s own benefit  it doesn’t matter if the person takes it for their own benefit or not. Elements of Theft 1. Property - section 4 2. Belonging to another – section 5 3. Appropriation – section 3 • 2 mens rea element: 4. Intention to permanently deprive – section 6 4. Dishonestly – section 2 Need to ask… • Was the thing appropriated ‘property’? • Did the property, at the time it was appropriated, belong to another? • Was there an appropriation?

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Was the appropriation of the other’s property dishonest? Was that appropriation, at the time it occurred, accompanied by an intention to permanently deprive the owner of the property? E.g. where someone borrows a book, keeps it & sells it- at what point is it an offence?

Property • Lawyers use the term in TWO senses: o Abstract: legal title in those goods - ‘I have property in that DVD’ i.e. ‘I own it’ o Concrete: goods themselves - ‘what property is involved?’ a house, an acre of land, a shed.... o BUT goods are not always tangible – consider your current account at the bank • S4 (1) “Property” includes money and all other property, real or personal, including things in action and other intangible property. Real or personal o Real Property: land and improvements made to it by human effort e.g. Buildings mines, wells o Personal Property: moveable, private property • Other issues o Things in action o Intangible property ▪ Money = banknotes and coins NOT accounts ▪ When you pay money into a bank, legal title passes to the bank, the bank then ‘owes’ a debt and you have a ‘right’ to enforce – this is a thing in action ▪ E.g. D taking v’s bankcard & using it- has d stolen anything from d & if yes what? The card itself, the money in the account held by the bank on V’s behalf Property • Things in action: o D takes V’s bank card and uses it in an ATM o D could have stolen the money (tangible personal property) but also appropriated part of V’s ‘thing in action’ as against the bank: o Could be charged EITHER with stealing notes (property of bank) OR stealing thing in action (property of V) • Chan Man-Sin [1988]: d was an accountant who withdraws 4.8 million pounds of Hong Kong money; account went overdrawn but was within limit. D argued the bank had n right to honour the cheque & transaction should have been voided but the court said no because in presenting a cheque you are creating a trust like situation. Lord Oliver "One who draws, presents and negotiates a cheque on a particular bank account is assuming the rights of the owner of the credit in the account or (as the case may be) of the pre-negotiated right to draw on the account up to the agreed figure." • A bank account, post office account, stocks and shares might come within this category

Property ◼ Intangible property ▪ Patents, copyrights etc. ▪ Mere (confidential) information does not qualify: Oxford v Moss (1978) 68 Cr App Rep 183- d stole an exam paper & returned it but was not constituted a theft because confidential information alone cannot constitute a theft. ▪ Not info gained through phone hacking (have alternative offences such as computer hacking) ▪ Not trade secrets ◼ Body parts ▪ People are not property ▪ Kelly [1998] 3 All ER 741- Kelly was an artist & had access to the royal surgeon & had access to draw them, she removed body parts & was held they were property belong to royal college who had sufficient possession of the body parts. ▪ Yearworth v North Bristol NHS Trust [2009] EWCA Civ 37- civil case, Yearworth went through given sperm sa...