Summary Smith & Hogan\'s Essentials Of Criminal Law PDF

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Summary

Summary of Smith and Hogan's Essentials of Criminal Law 1st
edition 2015. Chapters: principles of criminal law, actus reus, mens rea,
defences, homicide, property offences, non-fatal and non - sexual offences
against the person, sexual offences. The case names are highlighted...

Description

Principles of Criminal Law

1. The Principle of Fair Warning  

Requires clear communication of the law to the public. States that if criminal law were codified, public access would be improved and there would be a higher chance that the public would be made aware of what is being criminalised.

2. The Principle of Fair Labelling  

Requires accurate correlation between the name of an offence and the conduct it criminalises. Ensures that the label given to D’s offence is accurate (fair) by separating different wrongs into different offences with different labels.

3. The Principle of Autonomy 

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Ensures that people are free to act unrestrained by limiting the number of defences by omission which require a certain course of conduct (criminal law restricts options by criminalising certain conduct). We should not criminalise conduct that D cannot avoid.

4. The Principle of Welfare   

Promotes the role of the law in protecting society from harm. For an individual to be autonomous, she must be protected from others who would unfairly interfere with her. However, the protection of V requires the restriction on D => the challenge of criminal law is to find balance and promote maximum autonomy and welfare by creating safety through minimum criminalisation

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Actus Reus

Conduct   

Concerned with the physical movement or lack of movement of D’s body When assessing potential liability, always begin by identifying the conduct element of the actus reus: what did D do or fail to do in breach of duty? Omissions liability – 3 ingredients must be satisfied: recognised offence (offence is recognised in law as one that can be committed by omission), duty to act (legally recognised duty requiring D to act in a certain manner), breach of duty (D’s failure to act when required to).

The Circumstance Element  

Surrounding facts that are not performed nor caused by D’s action Some offences require certain circumstances, others not

The Result Element  

Only concerned with the certain result required for liability Not all offences require a result element

Duties to Act   

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After establishing that the offence charged is one that is capable of commission by omission, the next requirement is that D must have a legally recognised duty to act Offence specific duties to act: they apply only in the context of the individual offence that creates them, for example when D fails to report a motor accident in which he is involved Contractual duties to act: for example where D is contracted to protect V or her property, or third parties such as carers and health professionals. In Pittwood, D, a railway gatekeeper forgot to close a gate before going to lunch => a cart collided with a train, killing the train driver. D was charged with gross negligence manslaughter on the basis of his omission (contractual duty to close the gate) Familial duties to act: for example a parent’s duty to care for their child and between a married couple. In Hood, D omitted to summon help for three weeks after his wife fell ill and suffered broken bones (she died as a result) => D was charged with manslaughter on the basis of his omission and his familial duty to assist Assumption of care: arises when D voluntarily undertakes to care for V and V is dependent upon that care Duties to act based on endangerment: arise when D’s previous conduct has created a dangerous situation. In Evans, V’s sister supplied her with heroin which she self-administred. D did not alert 2

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authorities for fear of personal liability, V died and D was charged with gross negligence manslaughter on the basis of her omission to aid V (her duty arose from having created a dangerous situation) After it has been established that D’s offence was capable of commission by omission and that D had a duty to act, the next requirement is that D breached the duty D is generally only required to do what is reasonable (question for the jury). In Evans, D was required to contact emergency services. Stone and Dobinson: D1 and D2, ineffectual and inadequate, took in D1’s sister to live with them but she died of starvation having suffered from anorexia nervosa. D1 and D2 were charged with gross negligence manslaughter based on their omission created by voluntary assumption of care. This case set out an objective test for the reasonableness of the breach (reasonable by standards of reasonable people)

Causation  

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Causation in fact: Did the result come about because of D’s conduct? The “but for” test: it must be proved that but for D’s conduct element, the result would not have come about. It was set out in White (V gave mother poison in drink, she died of unrelated heart condition => D was not guilty of murder but attempted murder) Causation in law: D’s conduct element must have had a substantial contribution to the result. Must be blameworthy conduct. Novus actus interveniens – something breaks the chain of causation, for example D’s subsequent actions, natural events, actions of V, actions or omissions of a third party.

Mens Rea

Actus reus non facit nisi mens sit rea = a guilty act does not make for an offence without a guilty mind

Intention    

Direct intention: D intends something when she acts with a purpose towards it (not affected by foreseen likelihood of success); established in Moloney Oblique intention: D can intend an offence even when it is not her purpose or aim D can obliquely intend a result element when the result is virtually certain, she realises it is virtually certain, the jury find that her realisation amounted to an intention D can obliquely intend a circumstance element (V’s ownership of property for theft) where the circumstance was certain at the time she acted, she realised it was virtually certain, her realisation amounted to an intention 3

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Woolin: D killed child by throwing it against a hard surface without meaning to, charged with murder. HoL allowed appeal, “substantial risk” not being enough for a charge of murder => oblique intention requires the result to be virtually certain, to be foreseen as being virtually certain and for the jury to find intention

Recklessness   

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To satisfy a mens rea of recklessness, D must foresee a risk of the relevant element of the actus reus and unreasonably continue to run that risk Subjective part: at the time of the action D must have foreseen a risk of the relevant circumstance or result (no reasonable person) Objective part: Caldwell (objective) recklessness was overruled in the case of R v G: Ds, children aged 11 and 12, set fire to newspapers while camping which spread to surrounding buildings, they were convicted of criminal damage but had not foreseen the chance of the fire spreading and damage being caused although that was obvious to a reasonable person. HoL quashed their convictions following extensive criticism of objective recklessness. Intoxication mens rea: if D was involuntarily intoxicated, she did not foresee the risk and was not reckless, if, however, D is voluntarily intoxicated she can be found guilty of offences that require a mens rea of recklessness

Negligence  

Used to describe a certain type of behaviour from D that drops below the standards that we expect from reasonable people Questions: What was D’s duty of care? Did D breach that duty of care? Both questions are objective, focusing on external standards and conduct

Defences Defences accept that D has committed the elements of an offence but provide an additional set of rules that D can rely on so as to avoid liability. General defences apply to all offences, the only exception being duress, which does not apply to murder and certain related offences. They apply when D is subject to an impossible choice, such that her voluntary commission of an offence is not blameworthy, but her appeal to defences properly so called marks an acceptance that she has committed an offence.

Denial of elements of offences Self-defence and the prevention of crime 4

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Section 3 Criminal Law Act 1967: applies when the defendant sees a friend attacked and uses force to protect them: “such force as is reasonable” (use of force was an attempt to prevent further attacks) The common law of self-defence: applies when attacker is a child or insane (not acting unlawfully), only applies if defendant is acting to protect herself In order for self-defence to apply, there are four requirements: D must respond to an unjustified threat to a person or property, the force used by D must be necessary to avoid threat, the force used must be proportionate, D must act in order to defend herself or someone else and not for another reason An unjustified threat: normally the victim poses an unjust threat to the defendant or another. However, in Hichens, the court suggested that force may be used against an innocent person to prevent a crime by a third party. The threat must be unjust (but does not require the victim to be blameworthy Re A Conjoined Twins). For Titanic parallel, see page 280 of J. Herring. The force used must be necessary to rebut the threat : courts are sympathetic to a defendant who is faced with an unjustifiable threat but fails to see a means of escape. As long as the defendant believes that use of force is the only effective way to repel the attack, he or she will be able to rely on the attack Bird The force used must be reasonable: excessive force: Clegg: D shot a car that didn’t stop and killed a passenger and the driver, D said he was acting in self-defence, 4 shots out of which the 4th was shot after the car had passed The defendant acts to defend himself and not for some other reason: it needs to be shown that D was not acting out of revenge or any other motive but acting to protect himself or another. HRA and self-defence: Ashworth argues that the rule in Williams v Beckford that D can only rely on an honest mistake as the basis for self-defence may infringe the victim’s right to life in Article 2 in a murder case. Article 2(2) permits killing in self-defence in cases of absolute necessity.

Mistake 

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If D contends he has made a mistake, it will only succeed if the effect of the mistake means he did not have the appropriate mens rea => no defence of mistake, can only lead to a finding that the defendant has no mens rea The mistake must relate to an aspect of the actus reus: for example, a mistake related to the belief in consent in rape The mistake does not need to be reasonable. The mistake must be one of fact, not law.

Intoxication  

Cannot be used as a defence: it can only support a defence of no mens rea. Voluntary vs involuntary intoxication: did the defendant knowingly take alcohol or illegal drugs?

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Voluntary intoxication: in the leading case of Majewski, a line is drawn between offences of specific intent (D can use intoxication to deny mens rea, but it does not mean that if D is intoxicated, he should not be found guilty “a drunken intent is still an intent” => jury considers evidence to find mens rea) and basic intent (D cannot introduce evidence of voluntary intoxication to rebut a claim that he had the mens rea) Basic intent means recklessness and specific intent means intention: specific intent requires proof that something specific was intended, basic intent does not Involuntary intoxication: only relevant if D doesn’t have mens rea, in Kinston, D had paedophilic desires and was drugged, taken to a drugged boy and committed indecent assault. HoL decided that involuntary intoxication was only relevant in deciding that D did intent to commit the assault, it was irrelevant that he did so only because drugs were administered against his will Intoxication and defences: pages 289- 292 J Herring.

Insanity 

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The rules for insanity (confirmed in Sullivan), are: D must suffer from a disease of the mind and this must have caused a defect of reason and this must have caused a lack of responsibility, either because D did not know the nature or quality of her act or she did not know it was legally wrong Burden of proof is on D and when the rules are satisfied, she is granted an acquittal.

Duress by threats      

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Excusatory defence, like insanity D has committed an offence because she was threatened by X with death or serious injury if she refused Represents a concession to human frailty, an acceptance that although D had a choice, her decision to offend does not make her a criminal Duress is not a defence to murder and attempted murder D must have reasonably believed that she or another was threatened with death or serious injury by X unless D committed the offence The crime committed by D must be something that a reasonable person in her circumstances would have done (show reasonable steadfastness) – Graham (D lived with wife V and homosexual partner X, suffered from anxiety and took valium, making him susceptible to bullying. X and D tricked V into returning home where X forced D to kill her. He was charged with murder, his steadfastness having been weakened by alcohol and Valium is irrelevant because of the objective nature of the test) Wilson: D, a boy of 13, assisted his father in murdering his neighbour by fetching an axe and starting a fire, claiming it was for fear of his father’s violence. D was charged with murder. CoA accepted the law could be criticised for not providing a defence of duress in this case but were obliged to follow precedent from Howe (duress is no defence for murder, not even as a secondary party)

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Voluntary exposure to threat: if D voluntarily exposes himself to threat, he cannot rely on the defence of duress (Sharp – D joins robbery gang with firearms, prosecuted for robbery, claims other gang members threatened him into participating, Hasan – V commits burglary because of threats from X, drug dealer, D also acted as a minder for X’s girlfriend, a prostitute. D was charged with aggravated burglary, his voluntary association undermined any appeal to duress, confirmed that threat must be of death or serious injury)

Duress by circumstances  

New defence, mirrors duress by threats Willer – D drove his car to pavement to escape a gang who intended to hurt him and his passenger. He was charged with reckless driving and tried to raise the defence of necessity. CoA: necessity was irrelevant, but D had a defence of duress

The necessity for force  

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Threshold question: was it necessary for to use any force against V on the facts as D believed them to exist? (the trigger element is entirely subjective, unlike duress) Gladstone Williams: V witnessed X rob a woman in the street and caught him down, knocking him to the ground when X attempted to get away. On the second altercation, D thought V was assaulting X and punched V in the face. He was charged with assault occasioning actual bodily harm. CoA: appeal allowed, necessity element must be based on an honest belief but there is no requirement of reasonable grounds The question, as a consequence, is not whether D’s belief in the necessity of force was reasonable, but whether it was honest Imminence of attack: Devlin v Armstrong: defence can apply where D uses force to “ward off or prevent attack” as long as she honestly believed it was “imminent” The degree of force used by D must be reasonable and proportionate: the degree of force must be objectively reasonable based on the subjective facts as D believed them to be

Necessity 

Denning in Southward London Borough v Williams: “If hunger were once allowed to be an excuse for stealing, it would open a door through which all kinds of lawlessness and disorder would pass… If homelessness were once admitted as a defence to trespass, no one’s house would be safe. Necessity would open a door which no man could shut… the reason for such circumspection is clear – necessity can very easily become simply a mask for anarchy”

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This defence has been applied to a number of exceptional cases: to justify detention of a person suffering from a mental disorder, to justify force-feeding of prisoners, procuring an abortion to save the mother. Dudley and Stephens: D1, D2 and V were shipwrecked. After 18 days, several of which without food or water, they decided to eat V (cabin boy). Four days later they were rescued and charged with murder. High Court: Guilty of murder, with a sentence of death => respited afterwards and their sentences commuted to six months’ imprisonment without hard labour (necessity not successful because of the selection process, any of the 3 could have died but the cabin boy was chosen)

Homicide Murder

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The definition or murder quoted and used by courts derives from a 17 th century book by Coke: “Murder is when a man of sound memory, and of the age of discretion, unlawfully killeth within any country of the realm any reasonable creature in rerum natura under the king’s peace, with malice aforethought, either expressed by the party or implied by law, so as the party wounded, or hurt, etc die of that wound or hurt, etc within a year and a day after the same” Murder is when a person unlawfully causes the death of V with the intention to kill or cause GBH. Actus reus: under the queen’s peace: where soldiers kill alien enemies, the killing is not under the queen’s peace and is not murder Unlawful killing: it must satisfy all actus reus and mens rea elements without any defence V must be a person: An unborn child is not a person. When V stops breathing or his heart stops beating he is no longer a person. Causing death: D’s act or omission must cause V’s death (causation). Causing death includes the acceleration of death. Mens rea: D intends to kill or cause GBH where her conduct is carried out in order to bring about a certain result (direct intent) or when the result is a virtual certainty (oblique intent) Defences: most general and complete defences apply (except for duress) Partial defences: loss of self-control, diminished responsibility, suicide pact (these apply only to the defence of murder and lead to liability for manslaughter)

Manslaughter Voluntary Manslaughter 8

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Arises where D satisfies both the actus reus and the mens rea of murder. When D does not have a complete defence, one of the three partial defences to murder an reduce liability to voluntary manslaughter

 Loss of self-control : defined 

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in section 54 and 55 of the Coroners and Justice Act 2009. When D kills because of being overwhelmed by a violent passion likely to have affected others in a similar way, her level of culpability will be lower. 3 elements: loss of self-control; must have been caused by a qualifying trigger (fear of serious violence, things done or said of an extremely grave character which caused D to have a sense of being seriously wronged); a hypothetical person of D’s age and sex might have reacted the same way D must not have acted in a considered desire for revenge D must have lost self-control: subjective requirement: does not claim that D lacked mens rea for murder, but rather, explains why she had it. There must be a qualifying trigger: a fear of serious violence (does not apply where D has consciously caused the conditions of her own defence, Dawes and Ors) or a sense of being seriously wronged by things said or done (partily subjective in that D must personally feel seriously wronged and partly objective in that the feeling mus...