Criminal Law
Actus reas:Act can result in crime
Omission can also result in crime but it is not done by purpose for eg not
wearing seatbelt
Conduct crime: to prove the act should be real
Result crime: to prove that act has caused harm without which it will not be a crime.
This is known as the chain of causation.
Causation
For the prosecution to prove the actus reas of result crimes they have to
establish the chain of causation i.e the act caused the harm.
The first step is to prove factual causation through the “but for” test i.e but for
the act or omission, harm would not have occurred(White case), accelerating
harm will also prove factual causation (Dyson case) and harm can be direct or
indirect (mitchell case)
The second step is to prove legal causation i.e. the act has to be the main
cause of harm. If there is a single act leading to harm, factual and legal
causation are automatically met but if there are multiple acts contributing to
the harm, we need to determine if the second act breaks the chain of the first
act.
Breaking chain:
1. Third party act will only break chain if it is independent, voluntary major
reason of harm(Mckenzie case and paget case)
2. Medical negligence will only break chain if there is gross negligence
which is out of routine medical practice ( Adam;s, smith, Jordan,
Cheshire)
3. If harm to the victim is increased due to the special physical or mental
characteristics of the victim, chain will never be broken, this is the
eggshell skull rule (hayworth, holland, blaue)
4. Response of the victim will only break chain if it is not foreseeable and
the test is objective (Roberts, william and davis)
Criminal Homicide
Murder:
AR: Unlawful killing of a human being in the king’s peace where human being
is a foetus is independent of the mother until brain activity ceases and every
killing unlawful including mercy killing.
(Mens reas)MR: Intention to kill or cause grievous bodily harm (R v Whickers)
If a person is liable for murder they can reduce their liability to voluntary
manslaughter if they prove a partial defence:
1. Loss of self control: the defence needs to establish:
1. A subjective loss of self control
2.lOSC was due to a qualifying trigger (fear of
serious violence, circumstances of extremely grave character which
gives a person a justifiable sense of being seriously wrong) history will
be considered but sexual infidelity will not unless there are multiple
triggers in the context then infidelity( possessiveness or jealousy) will
be ignored and the defence will be grounded on the other trigger.
3. A reasonable person of the defendant’s sex
and age in the same circumstances would have done the same thing
(objective test)
2. Diminished responsibility: the defence has to prove the following
1. The defendant was suffering from a recognized mental condition
2. Due to the mental condition, the defendant either lost self control,
could not form a rational judgement or did not understand the nature of his
conduct
3. The mental illness is the main reason for killing
Alluwaliyah case: A woman was abused for 10 years and her husband
threatened to beat her the next day. She lit him on fire. She appealed it as
diminished responsibility and was named battered women syndrome
Involuntary manslaughter:
Constructive manslaughter: The prosecution has to establish,
1. There has to be a base crime committed by the defendant and the
prosecution has to prove the AR and MR of it. (Lamb, Larkin), The base
crime has to be inherently criminal (Andrews) and Constructive
manslaughter (CMS) cannot be committed by omission (Lowe case)
2. The act of the defendant has to be objectively dangerous i.e. exposes
another to the risk of some harm albeit non serious harm (Church)
(Watson) ( Dawson)
3. Causation
Reckless manslaughter: AR(same as murder), MR(subjective recklessness
i.e. being subjectively aware of the risk of harm and voluntarily taking an
unjustified risk)
Gross Negligence manslaughter: The prosecution has to prove the following:
1. The defendant has to owe the victim a duty of care which is a question
of law to be determined by the judge.( Adamako), criminal duty of care
is wider than the civil duty. (Wacker, Willowby)
2. The defendant has to breach duty of care which is a question of facts
determined by the jury keeping in view all circumstances including the
risk of death such that the act/ omission of the Defendant falls so below
the ordinary standards of society that it has to be labelled as criminal
3. Causation
Omission
The general rule is that there is no liability for omission unless there is:
1. Legal duty
2. Contractual duty
3. Voluntary assumption of responsibility
4. Special relationship
5. Creation or contribution towards risk
Offences Against The Person’s Act
Section 18 OAPA: Actus Reas
Causing wounding or grievous bodily harm where wounding is break in
continuity of both layers of skin (Eisenhower) and grievous bodily harm is
serious injury which will be defined by the jury and they can rely on the crown
prosecution guidelines (Smith, Janjua, Bollom), serious psychiatric injury
(Burstow) and transmission of disease (Dica) will amount to GBH
MR: intention to cause GBH or wounding or intention to prevent or resist
lawful arrest
Section 20 OAPA: Actus reas
Inflicting wounding or GBH (The AR of section 18 and 20 is same)
Section 20 OAPA: MR: subjective recklessness i.e. being subjectively aware
of the risk of some harm and voluntarily taking an unjustified risk.
Section 47 OAPA:: (Independent offences)
The prosecution has to prove
1. Assault or Battery:
Assault AR: Apprehension of immediate unlawful violence where
immediate does not mean instant but sometimes in the near future and
words, conduct and even silence can amount to assault
(Smith,Constanza, Tuberville)
MR: intention or subjective recklessness
Battery AR: Infliction of unlawful violence where harm can be direct or
indirect and any hostile unconsented touch will amount to battery.
(Collin, Wilson, Dpp v K, Martin)
MR: intention or subjective recklessness
2. The assault or battery has to cause actual bodily harm (ABH) which is
less serious injury defined by the jury (Donovan)
3. Causation
Defence of consent:
Consent is a defence for minor OAPA offences like ABH but not valid for GBH.
However, exceptions have been made for lawful sports, surgeries,
transmission of disease and tattoos or piercing.
However, courts have invalidated consent where there are policy issues for eg
in cases of street fights or immoral activities
Defences
1. Automatism: If there is an involuntary act due to an external factor
which results in crime then the defence of automatism will be successful
and there will be no liability. (Hill v Baxter, Brakkey)
2. Insanity: Insanity was defined in the McNaughtan case and can be
used in two ways. (1) if there is an involuntary act due to an internal
reason (Kamp case, Burges, quick, Hennessey, R v T) (2) Where there
is a voluntary act but due to an internal reason, the person does not
consider it as a crime. If insanity passes, special verdict will be given
and this defence can be raised by the defence and prosecution
3. Necessity: if a person commits a crime to prevent a bigger evil and
their is a justification then the defence will pass and there will be full
acquittal (Dudley and Stephens, Ref, Rea)
4. Self defence: this can be used for private or public defence but is only
available for crimes which involve the use of unlawful force. The
following needs to be proven: (1) the courts will first consider the
subjective threat where mistaken belief is also considered if it is
genuine. (2) based on the threat the defendant can only use reasonable
force (Objective test)
5. Duress: if a person is under pressure due to threat or circumstances
then they can raise the defence of duress but the following needs to be
proven (1) there has to be a threat of life, serious injury or rape (2) the
threat has to be to the defendant or someone close to them and
someone close is widely interpreted as any human being (3) there has
to be link between the threat and crime (4) the defendant has to show
reasonable courage (objective test) (5) there should be no escape
available (6) the defendant should not be at fault (7) duress is not
available for murder, attempted murder, or treason
Criminal damage
AR: Damage or destruction of property belonging to someone else. Property
is widely defined under Section 10 of the criminal damage act as all tangible
property including land and building.
Belonging to someone else means ownership
Damage is a question of fact which the jury decides based on the property
and it’s value, if a property requires substantial remedial action to reuse it, it
will be considered as damages
MR: Intention or subjective recklessness
Lawful excuse:
1. If the person reasonably believes the owner will consent to the damage
then there will be no liability.
2. If a person damages property to protect own property then not liable
Criminal attempts
AR: The defendant has to do an act which is more than merely preparatory
where the courts apply the rubicon test i.e. the person has to cross the point of
no return in committing the offence. (Jones, White, Campbell, Gulifer cases)
MR: Direct intention only
It was held in (R v Shivpuri) that if there is direct intent but due to technical
reasons there is no AR, the person will still be liable for attempts.
Intoxication
Intoxication targets Mens Rea but we need to see:
1. The defendant has to be completely unaware.
2. We need to see whether the intoxication was voluntary or involuntary
(Voluntary intoxication is where the defendant takes an intoxicant
knowingly or with reasonable belief (Majewski))
3. If involuntary, MR will be completely finished but if voluntary then
intention cannot be proven but recklessness will be at the time of
intoxication
Transferred Malice
Direct intention is transferable from A to B but crime has to be the same
(Latimer, Pemblinton)
Theft
Actus reus: The first issue is to determine whether the object falls within the
definition of property which is widely defined under section 4 of the Theft Act
as all tangible and intangible property excluding land and building. Body parts
are not property unless special skills are applied on them. (Sharpe)(Kelly)
(Welsh)
The second issue is to prove that the property belongs to someone else which
means ownership or legal possession (Turner no.2, Meredith). If property is
received by mistake, it has to be returned as it belongs to someone else
(Mouness)(Shadrock cigari) if property is given for a purpose and the person
uses it for another purpose, it belongs to someone else(Wain, Davidge). If
property is abandoned on public place, it does not belong to anyone but if
abandoned on private premises only the owner or the visitor can take it, for
trespassers, it belongs to someone else (Hibbert)
The third issue is to prove appropriation which is defined under section 3
subsection 1 of theft act as assuming the right of an owner (Phitham and
Helm). Consent finishes appropriation unless there are elements of dishonesty
then consent is finished(Lawrence, Morris, Gomez, Hinks)
Mens rea: The first issue is to prove dishonesty which is not defined under
the theft act but section2 subsection 1 seat out certain situations where a
person is not dishonest.
1. Where the person reasonably believes they have a legal right to take
property.
2. Where the person reasonably believes the owner would consent if they
knew.
3. Where the person reasonably believes the property is abandoned
The common law definition of dishonesty states that the jury will decide
dishonesty according to ordinary standards of honest people. (Feely, Gosh,
Ivey)
The final aspect is to prove a subjective intention to permanently deprive the
owner of that property (Velumyl). In terms of section 6 subsection 1 of the theft
act, any borrowing which amounts to an outright taking will prove an intention
to permanently deprive. In terms of section 6 subsection 2 imposing any
condition on return of property will prove intention to deprive.
Rape
AR: The first issue is to prove penetration which is a continuing act from the
time of insertion till withdrawal.
The second issue is to prove absence of consent which can be proven
through:
1. The prosecution can rely on S.76 of “The sexual offences act” and
prove a conclusive presumption i.e. fraud as to nature and purpose of
act (Prove that the reason conveyed was non sexual) (William,
lineker,Jheeta) or impersonation of someone personally known to
victim. (Elbekkay)
2. The prosecution can rely on S.75 of “The sexual offences act” to prove
a rebuttable presumption i.e. if the prosecution can prove any one of the
following then the courts will assume absence of consent unless the
defence gives a counterargument.
1. Violence or threat of violence to victim
2. Violence or threat of violence to someone close to victim
3. The victim was detained
4. The victim was asleep or unconscious
5. The victim had a physical disability and could not convey absence of
consent
6. The victim was given a substance
3. The prosecution can prove absence of consent under S.74 of “The
sexual offences act” through to traditional court practice where consent
will only be valid if given by free will and choice or else it will be
submission (R v Ali and Ashraf)(Kirk)(Oliubuja), the concept of implied
consent in marriage has been abolished (R v R), consent can also be
conditional (Assange), drunken consent can be valid unless the level of
awareness is nil.
MR: if absence of consent is proven under S.76 or 75 MR is also
automatically proven but if under 74 then the prosecution has to prove
the defendant either knew or ought to know there was no consent.
Coincidence of AR and MR
AR and MR have to be present at a single point in time or else no liability.
Exceptions:
1. If MR is not present at the time of act then coincidence can occur
if MR was present at the time of omission (Miller case)
2. If a crime cannot be committed by omission then the courts can
designate an act as a continuing act and if MR is present at any
time, coincidence will be proven.(Fagan v MPC) (Car on foot,
shampoo in hair, rape case)
3. For murder, the concept of series of act applies and coincidence
will be proven if MR is present at any point during the series
(Church, Lebrun, Meli)
Fraud
Fraud by representation (S.2 of fraud act 2006)
AR: The first issue is that there has to be a representation which can either
be expressed, implied or by silence.
The second issue is it must be proved that the representation is false i.e.
untrue or misleading. Fraud is a conduct crime and representation can be
made to a man or a machine (Lambie)
MR: The first issue is to prove dishonesty. (Ivey)The second issue is to prove
that the defendant was aware that the representation was untrue or
misleading. The third issue is to prove that there was a subjective intent to
make a gain or cause a loss or to expose someone to the risk of loss, where
loss and gain can only be of money or property.
Fraud by failure to disclose: (S.3 of the fraud act 2006)
AR: A person fails to disclose when he has a duty to disclose. (Firth case)
MR is the same as above.
Fraud by abuse of position: (S.4 of the fraud act 2006)
AR: A person is in a position of authority and misuses it.
MR same as the above.
Making of without payment
S.3 of the theft act 1968
AR: A person has to make off without paying from the spot of payment
(McDavitt case), unless the situation is such that it is not required to go to the
spot of payment to get the good or service then only making off needs to be
proven (Moberly v Alsop)\
MR: Dishonesty and intention to permanently deprive the other person of
payment.
Dishonestly obtaining services
(S.11 of fraud act 2006)
AR: A person obtains a service which is to be paid for but does not pay for it.
MR: Dishonesty or intention to never pay or pay in full.
Accessories
Accessories and abettors act 1861
The entire act was repealed except S.8 of the act
AR: The principle has to commit the AR of the main offence. The accessory
will be liable even if the principle has a valid defence.
MR; Intention to aid, abet, procure, counsel with knowledge of circumstances.
(Gillick case) Held liable in rape case for giving knowledge of contraceptives
but he was legally boud to give info as he was a doctor and thus not held
liable.
