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LW22012

The correspondence principle is the basic idea that each element within the actus reus of an offence should have a parallel mens rea requirement. The corresponding mens rea allows the defendant to be held responsible for the crime committed. Of course, there are exceptions to the correspondence principle as it is not an absolute rule on the construction of offences. In the beginning, constructive liability offences follow the correspondence principle. Firstly, there must be a base offence with corresponding actus reus and mens rea elements. Further to this, constructive crimes include additional actus reus elements, usually in the form of result elements, that build upon the base offence to create a more serious crime. These additional elements have no corresponding mens rea, they are strict liability elements, breaching the correspondence principle. Is this justified? Generally, offences of this kind, where liability is strict as to one element and ‘builds’ liability upon the mens rea for something but not the actus reus in question, are less controversial than strict liability offences where no mens rea is required as to circumstances and results. However, they still pose problems; the defendant can be criminalised without choosing to cause or risk an essential part of the actus reus.

Murder is a constructive liability offence. The definition of murder is derived from a seventeenth-century book by Coke1, but in modern language it is translated to be the unlawful killing of a person under the Queen’s peace with the intention to cause death or grievous bodily harm. Murder is committed as a constructive offence where the defendant intentionally causes serious harm to the victim- the base offence, and the victim dies as a result- the additional actus reus. The minimum mens rea of the defendant is that they voluntarily and intentionally caused grievous bodily harm to a person. If the defendant acted

1 Coke’s Institutes, 3 Co Inst 47.

LW22012 in keeping with this intention, they would commit a serious offence against the person.2 Building on top of the base offence of intentionally causing grievous bodily harm, the offence of murder also requires an additional actus reus element: that the defendant did in fact cause the death. However, an additional corresponding mens rea is not required for this additional actus reus. Basically, the grievous bodily harm offence plus death results in murder.

Intent can be direct or indirect. Thus, the Nedrick/ Woollin test of foresight of a ‘virtual certainty’ applies. In the case of R v Woollin3, the defendant frustratedly threw his threemonth old baby to the ground when it would not stop crying; the baby suffered a fractured skull and died as a result. The court found that the defendant did not intend to cause death or harm to the child but that he must have foreseen that his actions carried a risk of causing serious harm to the baby. The original trial judge directed the jury that oblique intention exists if there is ‘an appreciation of a substantial risk of injury’, which resulted in the jury decision that exposing somebody to a risk of harm was sufficient to amount to intention.4 The case was referred to the Court of Appeal and the House of Lords to consider the definition of intention. The Court of Appeal upheld the murder conviction; however, the House of Lords overturned the conviction for murder and replaced it with manslaughter, holding that the original trial judge had amplified the mens rea element for murder by asking whether the defendant foresaw a substantial risk. The term ‘substantial risk’ blurred the lines between intention and recklessness. As recklessness is not a sufficient mental

2 Offences Against the Person Act, s18.

3 R v Woollin [1999] 1 AC 82. 4 Michael J. Allen, Textbook on Criminal Law (13th Edition, Oxford 2015).

LW22012 element for a murder conviction it is important to keep them separate. The House of Lords found that the ‘virtual certainty’ test introduced in R v Nedrick5 should instead be used when considering intention. The Nedrick test was amended to only allow the jury to find intention. Presumably, this means that whilst a jury are able to find that the defendant had intention, they need not find that the defendant actually acted with intent at the time the offence was committed.6 This allows juries some wiggle room when deciding difficult cases7; however, Ashworth argues that, for serious offences such as murder, the courts should be aiming to introduce a more secure definition for intention. In the case of R v Matthews and Alleyne8, Rix LJ stated, ‘we do not regard Woollin as yet reaching or laying down a substantive rule of law’.9 Kaveny criticises this further10, with the opinion that the trouble in determining a defendant’s foresight means that the jury should instead be focusing on the defendant’s purpose when carrying out the action. Woolin was used in the case of Smith v Criminal Injuries Compensation Authority11, in which a cyclist who had been riding dangerously quick through a pedestrian area argued that he did not intend to injure the victim. The court held that the defendant foresaw it was a ‘virtual certainty’ that a pedestrian would be injured; he 5 R v Nedrick [1986] 1 WLR 1025. 6 Gerard Coffey, Codifying the Meaning of ‘Intention’ in the Criminal Law [2009] J.Crim L. 394.

7 Andrew Ashworth, Principles, Pragmatism and the Law Commission’s Recommendations on Homicide Law Reform [2007] Crim. L.R. 333. 8 R v Matthews and Alleyne [2003] EWCA Crim 192.

9 R v Matthews and Alleyne [2003] EWCA Crim 192, para 43. 10 M. Cathleen Kaveny, Inferring Intention from Foresight [2004] L.Q.R. 81. 11 Smith v Criminal Injuries Compensation Authority, Unreported, March 24, 2015.

LW22012 had saw pedestrians using a crossing, but rather than stopping at the red light he sped up and this amounted to oblique intention. Similarly, in R v Royle12 the defendant argued his intention was to steal a handbag rather than cause death or injury to the victim, however the court held that by stamping on the elderly victims head it was a ‘virtual certainty’ that serious harm would be caused. It is important to note that it is not necessary for the defendant to realise that their actions might cause death. The case of R v Vickers13 highlights this. Vickers broke into a shop to steal money. During the break-in, the defendant came across a tenant, attacking her, and later dying as a result of her injuries. He was convicted of murder on the basis that he intended to cause grievous bodily harm. He appealed this conviction, arguing that an intent to cause grievous bodily harm was not sufficient to satisfy the mens rea of murder. Vicker’s conviction of murder was upheld because the infliction of the grievous bodily harm was the direct cause of death. Similarly, in the case of R v Cunningham14, the defendant attacked the victim in a public house, hitting him repeatedly with a chair, which resulted in the death of the victim. Cunningham was convicted of murder on the basis that he had intended to cause grievous bodily harm. The defendant appealed this conviction, arguing that the law of murder should be confined to defendant’s who have an intention to kill. The House of Lords dismissed the defendant’s appeal and upheld his conviction for murder, confirming that the required mens rea for murder is an intention to kill or an intention to cause grievous bodily harm. Lord Edmund-Davies stated, “I recognise the force of the contrary view that the 12 R v Boyle [2003]. EWCA 1461.

13 R v Vickers [1957] 2 All ER 741.

14 R v Cunningham [1981] 2 All ER 863.

LW22012 outcome of intentionally inflicting serious harm can be so unpredictable that anyone prepared to act so wickedly has little ground for complaint if, where death results, he is convicted and punished as severely as one who intended to kill.” The fairness of the decision that we should take responsibility for all consequences of violence, foreseen or not, is continually criticised by the judiciary.

In conclusion, whilst the criminal law tends to favour the principle of correspondence between actus reus and mens rea, the current law on offences against the person approach offences against the person constructively. This approach is based on the consideration of both the defendant’s mens rea and the level of harm caused by the defendant’s actions, directly or indirectly. There are reasons for the correspondence principle and withholding the constructivist approach for offences against the person. The question of fairness of apportioning blame and holding the defendant liable for the unforeseen consequences of their actions and whether such an approach can be defended by the change in the defendant’s position based on their decision to use violence.

LW22012

Bibliography Cases R v Boyle [2003]. EWCA 1461.

R v Cunningham [1981] 2 All ER 863.

R v Matthews and Alleyne [2003] EWCA Crim 192.

R v Matthews and Alleyne [2003] EWCA Crim 192, para 43.

R v Nedrick [1986] 1 WLR 1025.

R v Vickers [1957] 2 All ER 741.

R v Woollin [1999] 1 AC 82.

Smith v Criminal Injuries Compensation Authority, Unreported, March 24, 2015. Legislation Offences Against the Person Act, s18. Bibliography Andrew Ashworth, Principles, Pragmatism and the Law Commission’s Recommendations on Homicide Law Reform [2007] Crim. L.R. 333. Coke’s Institutes, 3 Co Inst 47. Gerard Coffey, Codifying the Meaning of ‘Intention’ in the Criminal Law [2009] J.Crim L. 394. M. Cathleen Kaveny, Inferring Intention from Foresight [2004] L.Q.R. 81.

LW22012 Michael J. Allen, Textbook on Criminal Law (13th Edition, Oxford 2015) Smith, Hogan and Ormerod’s Essentials of Criminal Law (3rd Edition, Oxford 2019)...