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Actus Reus (AR) is the guilty action. AR can be a voluntary act, a state of affairs or an omission. In Hill v Baxter it was said that an act would not be voluntary if a driver was being attacked at the time by a swarm of bees, as he had no control over his actions, which would be seen as an involuntary act. In R v Whooley the driver of a HGV lorry had a sneezing fit and crashed into other cars. Because his actions were involuntary it was held he did not have the actus reus of the offence and was not guilty.
An omission can also form the actus Reus of an offence. The general rule in English law is that there is no liability for a failure to act, e.g. watching a blind child being run over crossing a busy road. However, the law sometimes imposes a duty to act. Parliament said a failure to provide a breath sample under the Road Traffic Act was an offence. The courts said Pittwood , a railway worker, was guilty of manslaughter for failing to close level crossing gates, as he was under a contractual duty to protect the health and safety of those using the crossing. Also Stone and Dobinson, an elderly couple, was also guilty of manslaughter for failing to care for an infirm relative who they took responsibility for.
Miller was guilty of arson for failing to take reasonable steps to prevent the spread of a fire he had started accidentally.
An act can simply be a state of affairs, where the prosecution only have to prove the D was in the wrong place: in the case of Winzar , the police escorted a drunk out of a hospital. They then arrested him for being drunk on the highway, as he was both drunk and on the highway. As this was a state of affairs offence it was irrelevant to proving the actus reus of the crime that Winzar was in the highway involuntarily.

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The general rule in English law is that an omission or failure to act will not usually result in criminal liability being imposed, as the actus reus should normally be committed voluntarily by the D. There is no general ‘Good Samaritan’ law where a D would commit a crime for not doing what he should of. But there are exceptions where a crime will have been committed because the defendant failed to act. These are as follows:
(1) Where there is a contractual duty to act — in Rv Pittwood , the level-crossing gatekeeper failed to close the gate to an oncoming train and a person crossing the line was killed. His contract of employment clearly required him to ensure this could not happen and as he failed in this duty he was convicted of manslaughter.
(2) Statute can make it an offence in defined circumstances to fail to act. Under the
Road traffic Act the AR is satisfied for failing to wear a seat-belt or crash helmet.
(3) Someone can be made liable where there is an assumed responsibility for the care of an aged or infirm person — Rv Stone and Dobinson . Here the defendants wanted Stone’s middle-aged sister to live with them. The D’s were found guilty of manslaughter as they had failed to call for medical attention after assuming responsibility for the V.
(4) Where the defendant does an act, which creates a dangerous situation there is a duty to take reasonable steps to eliminate the danger. In the case of Miller He set fire to a mattress accidentally and then left it. His failure to intervene in the creation of a dangerous situation and do what was reasonable (such as call the fire brigade) made him guilty of arson through an omission.
(5) Where an official fails to perform his duty — in Rv Dytham a police officer was found guilty when he failed to protect a citizen who was being kicked to death.

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If it is not clear if the D’s act caused the injury the courts must prove factual and legal causation, in order to prove the actus reus of a crime. We use the ‘But For’ test for factual. But for the D’s actions would the victim still be ok? In White , he was not the factual cause of death, his mother died of a heart attack and his act did not contribute to this.
If factual causation is proved then legal causation must be proved to show that it is fair to hold the D responsible for the AR of the offence. The D must be proved to be either a significant cause or a substantial cause of the V’s injuries/death as well as an operative factor. So in the case to Smith even though the medical treatment was poor, as the doctor missed a wound in the V’s back, the stab wounds were still an operating and substantial cause of the V’s death, and therefore Smith was still liable for the AR of murder. This established a chain of causation and the AR of the offence.
The D can argue the chain of causation has been broken and if successful will not have the AR of the offence, known as a novus actus interveniens. Firstly, by characteristics of the victim as in Blaue, in this case the V refused a blood transfusion on religious grounds.
However, you have to take your victim as you find them under the thin skull rule, so the
D’s chain of causation is not broken as the D had to take the V’s religious views as he found them. Secondly, because of the victim’s own act as in Roberts where he claimed the girl’s act of jumping out of the car were daft. If the victim’s acts are seen as daft it will break his chain however, it is very rare that this happens and in Roberts the V’s actions were seen as reasonable and not daft as she was sexually assaulted. Thirdly, if there has been an unforeseeable intervention as in Pagett where the police shot and killed his girlfriend. In this case it was seen as reasonably foreseeable that the police would instinctively return fire when shot by D, and Pagett was still responsible. Lastly, that a doctors’ negligence was the real cause of the AR in Jordan . Where treatment given was ‘ palpably wrong’ (allergic to drugs given – twice!) and broke the D’ chain as the
D’s original wounds had almost healed. However in Cheshire the court said that if the original acts were an insignificant cause of death/injury then any poor treatment would break the chain. However Cheshire’s shooting of the V were still a significant cause of death. Because of ‘ public policy’ (to protect doctors) it is very rare that poor treatment will break the chain.

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Alan believed that Bhu, a fellow student, had stolen his mobile phone. Alan saw Bhu at college, went up to her and said, ‘We sort out thieves like you.’ As Bhu hurried away in a panic, Alan’s friend Carol, sprayed Bhu with red paint. A small amount of paint went into
Bhu’s eyes. She was taken to hospital where her eyes were treated to remove the paint.
As she went home, and just before her sight was fully recovered, she tripped up a kerb and fractured her skull.
Outline the rules on causation, and briefly discuss whether Carol caused Bhu’s fractured skull. (7 marks + 2 marks for A03) – Jan 2011
The defendant (def) must be both the factual and legal cause. To establish whether they are the factual cause you use the ‘but for’ test, ‘But for the defendant’s actions would the victim have suffered harm?’ ( White ). But for his actions – putting poison in his mother’s drink – she would have died anyway of a heart attack. Carol caused Bhu’s fractured skull because but for Carol spraying Bhu in the eye with paint, she wouldn’t have blurred vision and fallen and fractured her skull.
Legal causation – did anything break the chain of causation? As long as it can be said
Carol’s conduct of spraying the paint in Bhu’s eyes is a substantial and operating cause of
Bhu’s fractured skull she will be held legally responsible for this injury ( Smith ), establishing a chain of causation. Carol may argue a number of reasons why the chain of causation may be broken and she is not responsible for Bhu’s fractured skull. 3rd party interventions break the chain of causation if they are unforeseeable ( Pagett ). The police firing at Pagett’s girlfriend was foreseeable after he shot at them. Medical treatment breaks the chain if it is ‘palpably wrong’ ( Jordan ), but doesn’t if the injuries were the substantial and operative cause of death ( Smith ). You must take you victim as you find them – the thin skull rule ( Blaue ). It didn’t matter Blaue’s victim refused a blood transfusion as she was a Jehovah’s witness and later died because you must take your victim as you find them. Daft acts by the victim break the chain of causation if they are unforeseeable ( Roberts ). It wasn’t unforeseeable that Robert’s victim would jump from the car.
It was foreseeable that if Carol sprayed paint in Bhu’s eyes she would lose her sight and that Carol must take her V as she finds her, with poor vision. With Bhu’s poor vision even after getting medical treatment it is reasonable that she try and go home and foreseeable that she would trip and fall, causing the fractured skull. There is no mention of “palpably wrong” medical treatment for Carol’s injury and it is clear Carol’s injuries to
Bhu were still operating and substantial at the time when Carol fell and fractured her skull. Therefore there is no break in the chain of the causation and carol is said to have caused Bhu’s fractured skull.

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Mens rea means the guilty mind of the D and is the level of fault or blameworthiness that needs to be proved to show D was aware of the consequences of his actions. This can be either intention or recklessness. Intention can be direct as in
Mohan . Direct intent means it is your main aim or desire to bring about the consequence of the crime e.g. death or GBH. In Mohan the D accelerated his car towards a police officer causing the V to jump out of the way. It was held that the D’s main aim from the evidence was to cause the V GBH, really serious harm, through accelerating his car at the officer who was standing in front of it.
Intention can also be indirect/oblique . This is where the D intended the act itself but not the criminal consequences. Woollin’ s main aim was to throw the baby against the wall (so he had direct intent for this) but his main aim was not to kill the baby. However, we can say that if he saw death as a virtual certainty of throwing the baby against the wall we can say he indirectly intended the baby’s death. As long as the jury also foresaw death as a virtual certainty the D would have indirect intention to kill the V.(very important bit!)
Recklessness is where the D doesn’t intend the death or injury of a V but he recognises he is taking a risk of harming someone and yet still goes ahead. This is explained in Cunningham.
It looks at what was in the D’s mind i.e. subjective recklessness. So in the case of Cunningham the D must have foreseen that the V might suffer from the effects of gas poisoning when he tampered with the gas meter, but still gone on to take the unjustified risk. It must also be proved that D was at least indifferent to this obvious risk or was aware of the unjustified risk but chose to take it anyway, i.e. unjustified risk taking. However as Cunningham was believed all the houses were abandoned he did not foresee the risk of poisoning anyone with gas.

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Transferred Malice (TM) is where the mens rea directed towards one person is transferred to the actual V.
The rule operates only where it is the same type of offence the D wishes to commit on either the person or object. TM can transfer person to person or object to object. For example in the case of Latimer the D got into an argument with V1 and took his belt off to strike him. The belt hit V1 but then rebounded and also hit V2, standing next the first victim. The P only had to prove the Mens rea of the offence on V1, which they successfully did. This then automatically transferred to V2 through the concept of TM as it was person to person and the same type of offence.
However, where the D wishes to commit an offence, which is different from the actual offence committed, the principle of TM does not apply. So TM can’t transfer from person to object or object to person. For example, in the case of Pembliton the D intended to hit a person in a crowd by throwing a stone. The D missed the crowd and broke a nearby window instead. TM did not apply as the breaking of the window (criminal damage) was not the same type of offence as hitting someone with a stone (battery). Therefore the P would have to prove the mens rea for criminal damage if D was to be guilty of this offence.

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Actus reus and mens rea must occur at the same time (the contemporaneity rule ) or there will be no criminal offence. This is to stop unrelated events being linked together creating a crime, which a D is clearly innocent of. However the courts have identified a number of exceptions. In Fagan v MPC the D accidentally stopped his car on a policeman’s foot (actus reus of battery). When he was asked to remove the car he refused and told him to wait. Leaving the car on the policeman’s foot was seen as a continuing actus reus. He formed the mens rea for the offence when he refused to remove it and as he was still committing the act by still being on the foot, he had committed the crime, so using this approach AR and MR did coincide and F was found G.
Sometimes the courts view separate incidents as a ‘series of acts’ and get round the contemporaneity rule that way. In Church he had gone to a van with a woman for sex.
She laughed because he couldn’t do it so he attacked her knocking her out. He panicked, thought he had killed her and threw her unconscious body into the river, where she drowned. He said ‘when I did kill (throwing her into river) I didn’t have the mens rea to kill as I thought she was already dead! The court said he had mens rea when he attacked her and it didn’t just stop, he still had mens rea when he threw her unconscious body into the river so he is guilty. This series of actus reus and mens rea actions were held to form the crime of manslaughter for which D was found guilty, from the initial attack to the death of the V.

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For some offences, there is no need to prove mens rea for at least one element of the actus reus. These are known as strict liability offences. They generally deal with matters of social concern and tend to be regulatory offences, where a fine is the likely punishment. SL offences may seem unfair but they are easier to prove, take less time and protect the public in situations where public health is concerned.
We have them because they are easy to prove, quick, therefore less costly and raise standards. It is SL to protect the environment ( Alphacell v Woodward ). The actus reus
(AR) was done when a storm caused pollution to enter a river; even though they were unaware they were guilty of a SL offence, it was more important to encourage high standards in the quality of water the public drink. It is SL to protect the public health
( Smedleys v Breed ). A caterpillar was found in a tin of Smedleys peas. The company was guilty as they had a duty to protect the public by keeping their production clean and safe.
It was a SL offence to sell food unfit for human consumption. It is SL to protect public safety ( Blake ); you cannot broadcast a radio station without a license as the pirate airwave could interfere with emergency services ability to protect the public and save lives. It is a SL to protect children ( Harrow v Shah ) where the defendant sold a lottery ticket to an underage individual, therefore were proven guilty of a SL offence. It is more important to protect children from underage gambling than to allow a shopkeeper to argue they had taken reasonable precautions such as training their staff to avoid this.
Another example is food safety. Butchers will always be found guilty if they sell bad meat as in the case of Callow v Tilstone , even though the butcher had got a vet to check it was safe. It is more important to encourage high standards of food safety than to allow a defence that appropriate checks had been taken.
However, where the offence is likely to result in the D receiving a custodial sentence or have a big impact on their lives the courts have held it is less likely for an offence to be classed as strict liability, mens rea must also be proved. Strict Liability is not used in these ‘truly criminal’ offences: in Sweet v Parsley , the D’s conviction was overturned as mens rea was needed for the offence of managing premises where drugs were being used.
The D would have lost her job and gone to prison if found guilty and as she had no idea what was happening in her rented property this was seen as unfair by the courts unless the P could prove some knowledge of the situation by the D, mens rea.

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(1) Define the AR of Assault : The Actus Reus of assault is to cause another person to apprehend immediate unlawful personal violence.
(2) Does the V apprehend immediate unlawful violence?: A threat of unlawful violence is sufficient as long as V believes them – even if D can’t or won’t carry out the threat ( Logdon v DPP )
(3) Give evidence from the scenario to show V apprehends immediate unlawful violence
(4) Is the threat of violence immediate?: As long as the V believes violence will be used by D in the near future this is a apprehension of immediate violence.( Smith v Superintendent of Woking )
(5) Give evidence from the scenario that the threat violence was immediate.
(6) Define the MR of assault : Did the D directly intend or was subjectively reckless in causing the V to apprehend immediate unlawful violence? ( R v
Venna )
(7) Intention can only be proved if it is Direct, D’s main aim must be to cause V to apprehend immediate unlawful violence. ( R v Mohan )
(8) Give evidence from the scenario to show V did or didn’t have a direct intention
(9) Subjective Recklessness – D must foresee the risk of causing V to apprehend immediate unlawful violence but have taken the risk anyway ( R v Cunningham ).
(10) Give evidence from the scenario to show V did or didn’t foresee the risk of causing the V to apprehend immediate unlawful violence but took the risk anyway.

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(1) Define the AR of Battery : Has the D inflicted unlawful force on the V?
(2) Unlawful force : If you don’t have permission to touch the V and touch them in even the slightest way, that’s battery ( Cole v Turner )
(3) Does the application of unlawful force include touching a person’s clothes?
Unlawful force is the merest touch of another and touching a person’s clothes is the same as touching their skin. ( R v Thomas )
(4) Indirectly applied force can be the AR: Force can be applied indirectly to the V.
( R v Haystead )
(5) Give evidence from the scenario of unlawful force used by the D.
(6) Define the MR of Battery : Did the D directly intend or was subjectively reckless in inflicting unlawful force on the V?( R v Venna )
(7) Intention can only be proved if it is Direct, D’s main aim must be to inflict unlawful force on the V either directly or indirectly. ( R v Mohan )
(8) Give evidence from the scenario to show V did or didn’t have a direct intention
(9) Subjective Recklessness – D must foresee the risk of inflicting unlawful force on the V but have taken the risk anyway ( R v Cunningham ).
(10) Give evidence from the scenario to show V did or didn’t foresee the risk of inflicting on the V unlawful force.

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(1) Define the AR of ABH : The D has committed either an assault or battery that causes actual bodily harm under S47 of the Offences Against the Person Act.
(2) Identify if the ABH is caused by an assault or battery.
(3) If the offence is an assault :
(4) Define the AR of Assault : The Actus Reus of assault is to cause another person to apprehend immediate unlawful personal violence.
(5) Does the V apprehend immediate unlawful violence?: A threat of unlawful violence is sufficient as long as V believes them – even if D can’t or won’t carry out the threat ( Logdon v DPP )
(6) Give evidence from the scenario to show V apprehends immediate unlawful violence
(7) Is the threat of violence immediate?: As long as the V believes violence will be used by D in the near future this is a apprehension of immediate violence.( Smith v Superintendent of Woking )
(8) Give evidence from the scenario that the threat violence was immediate.
(9) If the offence is a battery :
(10) Define the AR of Battery : Has the D inflicted unlawful force on the V?
(11) Unlawful force: If you don’t have permission to touch the V and touch them in even the slightest way, that’s battery ( Cole v Turner )
(12) Does the application of unlawful force include touching a person’s clothes?
Unlawful force is the merest touch of another and touching a person’s clothes is the same as touching their skin. ( R v Thomas )
(13) Indirectly applied force can be the AR: Force can be applied indirectly to the V.
( R v Haystead )
(14) Give evidence from the scenario of unlawful force used by the D.
(15) Define the meaning of actual bodily harm.
Use only cases that are relevant to the scenario
(16) Bodily harm includes any hurt or injury calculated to interfere with the health or comfort of the V. This can include any psychiatric harm. ( R v Miller )
(17) Bodily harm means injury. The injury has be something that is more than trivial and insignificant. ( R v Chan Fook )
(18) Injury doesn’t include fear or distress or panic unless there is a psychiatric condition. ( R v Chan Fook )
(19) Bodily harm can include any hurt or damage to the V including dead tissue such as hair.

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(20) Harm can also include paint or other unpleasant substance put on V. ( DPP v
Smith )
(21) Bodily harm can be caused indirectly ( DPP v K ).
(22) Give evidence from the scenario of ABH.
(23) Give evidence from the scenario that the assault or battery caused ABH.
(24) The Mens Rea of ABH is the same as either assault or battery . There is no need to prove the D intended or was reckless to causing bodily harm. No MR is required for the bodily harm. ( R v Savage )
(25) If the offence is an Assault
(26) Define the MR of assault : Did the D directly intend or was subjectively reckless in causing the V to apprehend immediate unlawful violence? ( R v
Venna )
(27) Intention can only be proved if it is Direct, D’s main aim must be to cause V to apprehend immediate unlawful violence. ( R v Mohan )
(28) Give evidence from the scenario to show V did or didn’t have a direct intention
(29) Subjective Recklessness – D must foresee the risk of causing V to apprehend immediate unlawful violence but have taken the risk anyway ( R v Cunningham ).
(30) Give evidence from the scenario to show V did or didn’t foresee the risk of causing the V to apprehend immediate unlawful violence but took the risk anyway.
(31) If the offence is a battery.
(32) Define the MR of Battery : Did the D directly intend or was subjectively reckless in inflicting unlawful force on the V?( R v Venna )
(33) Intention can only be proved if it is Direct, D’s main aim must be to inflict unlawful force on the V either directly or indirectly. ( R v Mohan )
(34) Give evidence from the scenario to show V did or didn’t have a direct intention
(35) Subjective Recklessness – D must foresee the risk of inflicting unlawful force on the V but have taken the risk anyway ( R v Cunningham ).
(36) Give evidence from the scenario to show V did or didn’t foresee the risk of inflicting on the V unlawful force.
(37) Conclude whether or not the D is guilty of the AR and MR of an ABH.

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(1) State that you believe it is S20 of the Offences Against the Person Act
1861
(2) Define the AR of S20: D inflicts a wound or causes GBH to the V.
(3) Has the D caused a wound to the V? A wound was defined a break in the surface of the skin. This is not a minor cut or scratch. ( Eisenhower )
(4) Give evidence from the scenario of a wound or no wound.
(5) Has the D caused GBH? GBH means really serious harm. ( DPP v Smith )
(6) GBH can include sever psychiatric harm ( R v Burstow )
(7) Give evidence from the scenario of a GBH or no GBH.
(8) Was the GBH and/or wound caused indirectly? Grievous Bodily harm or a wound can be caused indirectly. ( R v Martin )
(9) Give evidence of GBH caused indirectly.
(10) Conclude whether or not there is the AR of the offence.
(11) Define the MR of S20 : It is enough for the prosecution to prove that the defendant either directly intended ( Mohan ) or was subjectively reckless about causing some harm ( Cunningham ).
(12) D only has to foresee some harm. The harm only needs to small. ( R v Mowatt )
(13) Intention can only be proved if it is Direct, D’s main aim must be to cause some harm on the V either directly. ( R v Mohan )
(14) Give evidence from the scenario to show V did or didn’t have a direct intention
(15) Subjective Recklessness – D must foresee the risk of causing some harm but have taken the risk anyway ( R v Cunningham ).
(16) Give evidence from the scenario to show V did or didn’t foresee the risk of causing some harm.
(17) Conclude on whether D is guilty of S20

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(1) State that you believe it is S18 of the Offences Against the Person Act
1861
(2) Define the AR of S18: D causes a wound or causes GBH to the V.
(3) Has the D caused a wound to the V? A wound was defined a break in the surface of the skin. This is not a minor cut or scratch. ( Eisenhower )
(4) Give evidence from the scenario of a wound or no wound.
(5) Has the D caused GBH? GBH means really serious harm. ( DPP v Smith )
(6) GBH can include sever psychiatric harm ( R v Burstow )
(7) Give evidence from the scenario of a GBH or no GBH.
(8) Was the GBH and/or wound caused indirectly? Grievous Bodily harm or a wound can be caused indirectly. ( R v Martin )
(9) Give evidence of GBH caused indirectly.
(10) Conclude whether or not there is the AR of the offence.
(11) Define the MR of S18 : The P has to prove the D had a direct intention to cause GBH or a wound OR P has to prove an indirect intention to cause GBH or a wound.( R v Belfon )
(12) Intention can be proved if it is Direct, D’s main aim must be to cause directly
GBH or a wound. ( R v Mohan )
(13) Give evidence from the scenario to show V did or didn’t have a direct intention.
(14) If it appears D had one aim in mind but another consequence also was caused then the P has to use the Woollin test.
(15) P must prove that GBH or a wound was a virtually certain outcome of the D’s actions AND P must prove that D appreciated that his actions would cause GBH or a wound as a virtual certainty.( R v Woollin )
(16) Give evidence from the scenario to show GBH or a wound was a virtually certain consequence of the D’s actions.
(17) Give evidence that the D appreciated that GBH or a wound was a virtually certain consequence of his actions.
(18) Conclude on whether D is guilty of S18

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Firstly at an early administrative hearing, which always takes place in the Magistrates court, Dan will be asked if he pleads guilty or not guilty . In all cases the D will be allowed to discuss his case with the duty solicitor before making a plea. In serious cases the
Magistrates will grant the D legal aid to allow him a solicitor/barrister to represent him in court.
If he pleads not guilty the magistrates can grant bail to the Dan when he first appears in court. This can also be looked again if the case goes to Crown Court . It is presumed everyone will get bail under the Bail Act 1976 S4 unless the D is charged with an offence you committed whilst on bail. Also you may not get it if you are charged with a very serious crime, such as murder, or you have already committed a similar serious offence before. Only exceptional circumstances will you then get bail.
Dan might not get bail if the court thinks he would fail to turn up/commit another crime or interfere with witnesses. Dan may be given unconditional bail, which is where the D simply has to attend all hearings upto and including his trial. Or He may get conditions imposed like a curfew. Otherwise he will be remanded in custody until the end of his trial.
If he is charged with assault or battery he will have his trial at Magistrates
Court as this is a summary offence.
Only use if the question says it is one of the offences shown or a triable either way (S47
– S20) or Indictable offence (S18 only).
If he is charged with sec 18 gbh he will be sent by the magistrates to Crown Court for trial by judge and jury or to be sentenced if he pleaded guilty. If he pleads not guilty he will have a plea and directions hearing to sort out bail. Legal aid and witnesses required before the trial takes place..
If charged with sec 20/47 and pleads guilty the Mags can sentence them if 6mths max will be enough, it not it will go to Crown for sentencing.
If pleading not guilty , Mags can hear the trial if they the case is not too serious or complicated. They decide this at a mode of trial hearing . Then the def can choose to go to Crown or stay at Mags for his trial.

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Under the Bail Act 1976 Section 4 there is a general presumption that Dan is will be allowed bail until his trial. Dan could be given conditional bail which means that the
Magistrates court decide that he should have a curfew and tagging order, give the court his passport until the trial, report to the police station on a regular basis, or live at a specific address. This is to stop Dan either interfering with witnesses or ensure he turns up for his trial.
As Dan appears to have no other previous convictions and this is his first offence the court may give him unconditional bail which simply means he can go free except for turning up to court appearances and his trial. He also tried to help Enid and showed remorse straight away.
If Dan has been refused bail in the past, for example, he has committed an offence whilst on Bail; he will be remanded in custody until the date of his trial. If Dan were to be charged with a serious offence then he would only be given bail in exceptional circumstances.
For Dan’s offence the Magistrates will look at a number of factors before they make a bail decision. These include the nature (type) and seriousness of the offence, Dan’s character, associations, community ties, Strength of Evidence, Criminal record (previous convictions) and any drug use by the D.
The Magistrates must give Dan reasons if they don’t allow him bail.

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Outline the range of sentences available to the court and the factors the court would consider if Dan was convicted of an offence in respect of Enid’s injuries (7 + 3 marks for A03)
The range of sentence includes custodial, community, fines and discharges and are outlined in the Powers of Criminal Courts (Sentencing) Act 2000
Custodial sentences should only be passed if the offence is so serious that there is no alternative. Prison sentences can only be passed on anyone aged 21 or over. Normally the
Court are free to choose the length of the sentence, but for murder the judge has to give a life sentence. For Dan’s offence under S18, the max is life and under S 20 the max is 5 years. Dan could be given a suspended sentence for up to two years. This means that he does not have to serve the sentence unless he re-offends within the two years.
Under the Criminal Justice Act 2003 , Community sentences include unpaid work in the community e.g. cleaning graffiti, painting nurseries. The number of hours is from 40 to
300hrs over a period of time. A supervision order can last for 3 years. You are supervised by the probation service that helps you get a job/house/send you on courses etc and keep you on the straight and narrow. You could get a c urfew with electronic tagging which can last for up to 12 hours a day or an exclusion order, which can last for two years. Dan could be given a supervision order and be asked to complete unpaid work to as this is his first offence.
Fines in the Magistrates Court are up to £5000 and it is unlimited in the Crown Court.
Discharges can be Conditional or Absolute. Absolute means the D may be technically guilty but should not be punished with an actual sentence and Conditional is where conditions are attached e.g. not to reoffend for up to 2 years.
Before deciding on an actual sentence the court would look at the mitigating factors of
Dan and the offence, factors that can lessen Dan’s sentence. If Dan pleads guilty at the first opportunity the court will reduce his sentence by one third. Dan showed immediate signs of genuine remorse and had not committed an offence before. If Dan co-operates with the police and has any particular medical conditions or family responsibilities a pre sentence report will help the court decide if these should reduce the sentence.
Aggravating factors increase Dan’s sentence and can include: previous convictions for similar offences, being on bail at the time of the offence, resisting arrest, or showing no remorse. Dan doesn’t appear to have any aggravating factors except that it was an

Page 19 of 31 unprovoked attack and lost his temper. Dan may therefore get a community sentence including an anger management course to ensure he is a reformed character.

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There are 5 main aims of sentencing under S142 of the Criminal Justice Act 2003: retribution, rehabilitation, protection of the public, reparation and deterrence.
Retribution is about punishing the offender normally through a prison sentence or heavy fine; and is proportionate punishment “an eye for an eye”. It is about revenge and it doesn’t try to reduce crime or change the offender. This aim is best served by harsh sentences (such as long prison sentences). In Carol’s case if guilty of a Section 20 offence she could be punished by a prison sentence of upto 5 years.
Rehabilitation is about changing the offender so that they don’t re-offend. It is a forward looking-aim and hopes that the offender will change their ways. This aim is best served by community sentences such as unpaid work, electronic tagging and curfew or a supervision order. If Carol has not committed an offence before doing unpaid work to rehabilitate her may reform her.
Protection of the public is about protecting society from dangerous criminals. For example, long prison sentences are given for murder and violent sexual offences. This can also be done through driving bans and curfews.
Deterrence is about putting people off committing crimes. It can be general (preventing other people from committing the same crime) or Individual (preventing the offender from re-offending). They are both aimed at reducing crime. This is served best through harsh sentences and can be unfair. Carol could be given a suspended sentence for upto 2 years to ensure she does not do the offence again.
Reparation is intended to make the offender make some form of compensation for the harm he has caused either through a fine, unpaid work of between 30-400 hours or through specific work doen for the victim. Carol could be fined upto £5000 in the
Magistrates court and have potentially an unlimited fine in the Crown court. Carol may be asked to compensate Bhu for all the injuries she has caused her.
Carol’s final sentence will depend on her plea, guilty or not guilty and her previous criminal record.

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An offer is defined as a statement of the terms upon which the person making the offer is willing to enter a contract; it can be written or verbal. For example, the owner of a vending machine, placing it in a public place, is an offer.
An invitation to treat is defined as an indication of a willingness to start negotiations, for example, goods in a self service store are an invitation to treat, not an offer.
One case that was classed as an offer is Chapleton v Bury , where there was the act of taking a deckchair from a pile of deckchairs and sitting on it formed the contract where a local council hired deckchairs to people on its beach. The placing of the pile of deckchairs on the beach that could be taken and the clear display of the price was an offer because there were many more customers than attendants and therefore no way to negotiate, so therefore not an ITT.
A case that is an invitation to treat was Fisher v Bell where a shopkeeper in Bristol was prosecuted because he had a flick knife in his shop window with a price label on it. The shopkeeper was not offering the knife for sale as he has limited stock; therefore it was merely an invitation to treat. The shopkeeper may wish to choose the person to sell the goods and in this case the shopkeeper would also have legal restrictions on which he could sell a knife. Another case which is an invitation to treat was Gibson v MCC where the councils response when asked by Mr Gibson whether he could buy his council house was
‘the corporation may be prepared to sell the house to you at the purchase price of
£2,725 less per cent’, therefore the uncertainty of the word ‘may’ showed negotiations were still continuing, not that there was a readiness to make a contract meant there could be no offer to sell.

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An offer is defined as a statement of the terms upon which the person making the offer is willing to enter a contract. It can be written or unwritten. An offer must be communicated to the other party; it cannot be accepted unless the person who is seeking to accept it knows of its existence. If the other person is not aware of the offer than it cannot be accepted. However, in Carlill v Carbolic there was an offer exceptionally through a poster because it was sufficiently clear and communicated to the reader as to what to in order to accept the offer, i.e. buy and inhale the smoke ball as required by the poster. Therefore acceptance took place in this case soon as this was done. An offer can come to an end in one of six ways, these are: acceptance, lapse of time, revocation, rejection, counter offer and death.
Lapse of time means that some offers are made for a fixed period of time, at the end of this period, the offer lapses or comes to an end. This is seen in the case of Ramsgate
Hotel v Montefiore , were D offered to buy shares in a hotel on the 8th June. On the
23rd November the company tried to accept the offer but D no longer wanted to buy shares. This demonstrates a lapse of time because the company only responded five months later so the D was entitled to assume the company did not want him to invest as the length of time was unreasonable.
Rejection is where a person doesn’t accept the offer. Once an offer is rejected the offer comes to an end and there is no second chance. The rejection must be clear and not just a request for more information. A case example for rejection is Stevenson v Mclean where the D had enquired if he could receive credit on goods he had been offered. After receiving no reply he assumed credit was not available and stated he was prepared to pay cash. This was ruled as not being a rejection because the enquiry was about whether credit was available so the offer was not rejected at this point and still could have been rejected.
A counter offer both rejects the original offer and creates a new offer that can then be accepted or rejected. An example of a counteroffer is Hyde v Wrench . On the 6th June,
Wrench offered to sell his farm to Hyde for £1000, Hyde offered £950. On the 9th
June Wrench rejected the offer. On the 21st June Hyde tried to accept the offer to sell for £1000, Wrench refused to sell at £1000 as his original offer had ended with
Hyde’s counter offer of £950. This counter offer ends the original offer.

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Gareth’s advertisement in the local paper is an invitation to treat ( Partridge v
Crittenden ) as it is merely an indication of a willingness to enter into negotiations. It is not an offer because it is not clear that Gareth wants to be bound by the advertisement, particularly because the logs are advertised at a cheap price. This is a logical decision as it enables Gareth to choose who he sells the logs to; this is especially important as he will only have a finite number of logs and the price is cheap.
Farah then makes an offer to Gareth when she leaves a message on Gareth’s answer phone asking ‘for a load of logs to be delivered the following Saturday.’ This is an offer because it is a clear statement of the terms upon which the person making the offer is willing to enter a contract ( Thornton v Shoe Lane Parking ); Farer implies she wants to be bound by the offer as she states a delivery date and is particularly pleased by the price. An offer can be verbal and it must be communicated; Farer’s offer was communicated on Gareth’s answer machine. However it is only finally communicated to
Gareth when he accesses the message which from the scenario is at the latest Tuesday
( Carlill v Carbolic ). We know this because otherwise Gareth would not have then left a further message telling Farer the date and time of delivery of the logs.
Gareth then accepts Farer’s offer when he leaves a positive and unqualified message on
Farer’s answer machine ‘saying that the logs would be delivered between 10am and 12 noon on Saturday, as requested.’ The acceptance is communicated when Farer clearly hears and understands the answering message. It can be assumed that the acceptance was communicated to Farer correctly due to Gareth’s next phone call in the scenario
( Entore’s v Miles Far East ). Phone calls are treated for acceptance in the same way as a face to face conversation.
Therefore in the scenario, there does appear to be a valid offer and acceptance in the dealings between Farah and Gareth.

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Intention to create legal relations is when the parties of a contract must intend the agreement to be legally binding.
Contract law presumes that there are no legal relations in domestic agreements between friends and family, for example, it is not expected that a child takes a parent to court if they are late in paying their pocket money. However, the intention to create legal relations can be challenged, for example, an agreement based on social arrangements to share winnings in a lottery syndicate, these agreements are usually in writing and signed.
An example where no legal relations were created is in the case of Balfour v Balfour , there was no rebuttal of an ITLR for this domestic agreement because B’s agreement to pay his wife £30 maintenance per month whilst she stayed in England due to health reasons was made before the marriage broke down and wasn’t in writing. Mrs Balfour could not take legal action as the arrangement was not intended to be legally binding.
However, in Merritt v Merritt , the presumption of a domestic agreement was rebutted because, Mr Merritt legally separated from his wife and then agreed in writing to pay her
£540 per month, He signed this agreement but later refused to transfer the house.
These were legal relations as a more formal arrangement after a marital split can be legally binding.
Contract law presumes in commercial agreements that there is a willingness to create legal relations, for example if purchased goods turned out to be defective. However, there are no legal intentions in the sale of a house subject to contract, where an agreement has been reached between the owner of a house and a prospective buyer, but the written contract has not yet been completed. One example where the intention to create legal relations in a commercial situation and where rebutted is Jones v Vernon’s
Pools, where claims were made by people who believed they had the winning coupon.
However, the ticket clearly stated the phrase ‘binding in honour only’ which was interpreted to mean there was no intention to create legal relations, and the claimants had signed the agreement.

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Consideration is defined as each party to a contract must give something to someone of some value. This is because the law is concerned with bargains and not gifts.
Consideration can be executed which is defined as when a person has completed their part of the contract it can be said to have been fulfilled, or the term used to describe the status of a person’s promise in a contract where that part of the bargain had been performed. Consideration can be executory which is defined as when a person has not yet completed their part of the contract.
Consideration must have some value as the law is concerned with bargains and not gifts; the consideration must have some value but does not have to be of equal value. The whole point of business is to get more for your goods than you pay for them so it is not equal values. An example is Chappell v Nestle , where the chocolate bar wrappers were enough to be regarded as some value and consideration even though it was less than one pence value.
Consideration must move from the promise, this means that the person making the promise must provide the consideration. However, the basic rule has been altered by the
Contracts (Rights of Third Parties) Act 1999 , so that a person who is not party to a contract can enforce the contract if he or she is named in the contract or he gains benefit from it; for example, a gift for someone which is delivered to their house.
Past consideration is defined as, is not valid consideration. Something already done by A at the time the agreement is made by him with B. An example of past consideration is not valid consideration is Re McArdle where a promise to pay for work done voluntarily after the work has been done is not consideration but past consideration. The court held that the promise of payment did not create a contract as the alterations were over and done with by the time the promise of payment was made. There is an exception to this which is defined in the case of Lampleigh v Braithwaite , where an act is done at someone’s request and the parties understood that payment would be made, this is valid consideration not past consideration. The court decided that although Lampleigh’s consideration was past, Braithwaite’s promise to pay could be linked to his earlier request and treated as one agreement. Therefore it could be implied at the time of the request that Lampleigh would be paid and so was valid consideration.

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A breach occurs when one party to the contract fails or states that he will to perform part or all of his side of the contract. An actual breach occurs either through poor performance of the contract or by non performance – where the goods/services /money are not provided at all. An actual breach (or anticipatory breach) can be a condition or a warranty. A condition is a major term of the contract that, if not performed, will go to the heart of the contract. If a condition is breached the Claimant (C) can terminate the contract and claim damages. A case involving a breach of a condition is Poussard v Spiers
& Pond where an opera singer not attending the first six performances she was contracted to sing was an actual breach of contract due to a condition. Her singing in the performances was a condition of the contract as it was a major part of the contract, without her there could not be a performance. Therefore the singer’s contract could be terminated immediately and damages claimed by C.
A warranty is a minor term of the contract that, if not performed, will cause loss but does not go to the heart of the contract. If a warranty is breached, C can’t terminate the contract but can claim damages for any loss. In Bettini v Gye , a warranty was breached when an opera singer was required to attend six rehearsals before performances but failed to attend the first two. This was considered a warranty as it was only part of the rehearsals and not the performances that the singer missed and therefore not a major part of the contract. The C could sue for damages but not terminate the contract.
An anticipatory breach occurs where one party to the contract states or indicates that there will not be a performance of the contract in the future. For example, in Hochster v
De La Tour , a tour guide being told his services would not be required 2 months before his contract was due to end, was an anticipatory breach as his contract had not yet ended. As this was an anticipatory breach of a condition C could terminate the contract immediately and claim damages or wait to see if his services would be needed.

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A breach would occur where the Bike shed fails to deliver the Challenge 6 Bike. This is an anticipatory breach as The Bike Shed contact with Richard after he has agreed the contract for the Challenge 6 and tell him it is no longer available ( Hochster v De La
Tour ) Clearly this is a breach of contract as Richard and The Bike Shed had agreed on the exact model to be paid for. The anticipatory breach takes place when The Bike Shed leave Richard a message stating the bike isn’t available and they are going to charge him an extra £50 for a model he didn’t order (the Challenge 7).
As the model and price of the original contract are major terms of the contract this goes to the heart of the contract between Richard and the Bike shed and therefore it appears the anticipatory breach was that of a condition. This means Richard is correct in stating that he refuses to pay for the new bike, when Sam telephone’s him from the Bike
Shed. As a breach of condition Richard is legally allowed to terminate the contract early, when he heard the phone message, and also sue for damages for the extra £50 he has had to pay to buy the same bike from another supplier ( Poussard v Spiers &
Pond).
Alternatively Richard could have continued with the contract and simply sued for any losses, in this case The Bike shed should have given him either a Challenge 6 bike or the Challenge 7 bike for the same price ( Avery v Bowden 1855
)

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Consideration means that each party to a contract must give something of some value.
This is because the law is concerned with bargains and not gifts. A gift is not consideration and therefore a contract cannot be formed. Consideration is not concerned with whether or not each person receives something of equal value.
Consideration can be looked at in two ways. Executory consideration is when a person has not yet completed their part of the bargain/contract, and executed consideration is when a person has completed their part of the contract. Consideration must be for some value to be used to bargain with ( Chappell v Nestle ). In this case chocolate bar wrappers were enough to be regarded as some value and consideration even though the value was very little. Consideration must move from the promise. This means that each side must promise to give or do something for each other. This means there must be at least two promises. The promise can benefit another person other than the ones making the contract. Contracts (Rights of Third Parties) Act 1999 . This act has altered the rules about each side having to promise to give or do something for the other. Past consideration is not valid consideration. It is something already done by A at the time the agreement is made with B ( Re McArdle ). A promise to pay for work done voluntarily after the work has been done. There is an exception to this which is defined in the case of
Lampleigh v Braithwaite , where an act is done at someone’s request and the parties understood that payment would be made, this is valid consideration not past consideration. The court decided that although Lampleigh’s consideration was past,
Braithwaite’s promise to pay could be linked to his earlier request and treated as one agreement. Therefore it could be implied at the time of the request that Lampleigh would be paid and so was valid consideration.
There is consideration from both Juan and AB. Juan bought the computer from AB and gave him £345 ( Chappell v Nestle ). Juan has executed consideration and it is clearly not a gift and of some value, being cash for the computer. AB also has executed consideration because we assume that he has given the computer to Juan as two weeks after the installation the computer breaks down. Again this is not a gift as AB are clearly in business to sell computers and contract law accepts that consideration may be of unequal value, AB clearly are in business to make a profit by selling computers to Juan at a profit.

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(5 marks)
You must correctly identify and explain the damages in the case and how they will be classified and dealt with.
Damages normally take the form of money paid to the winning party. In contract damages are compensatory. The purpose of damages is only Compensatory, to put the claimant in the position he would have been in had the contract been properly performed. Juan’s damages would be calculated taking into account his ability to mitigate his loss; he must do his best to keep the losses he has suffered to a minimum. Juan’s claim may be for
£395 for the new computer but he must mitigate his loss so may only end up getting the difference between the cost of his computer from AB and the £50 extra paid for his new computer. AB will need to give him back any losses he suffers but expenses that were not related directly to a loss of profit cannot be claimed ( Wiseman v Virgin
Atlantic Airways ).
Juan can also claim consequential losses but the extent of the losses that can be claimed depends on whether the consequence is too remote to be recovered or not. The basic principle is that if the loss is foreseeable to a reasonable person then compensation can be claimed. For example it is reasonably foreseeable that Juan would have telephone and travel costs to replace the AB computer and other incidental costs. Hadley v Baxendale develops the rule further by saying damages for breach of contract will cover naturally occurring consequences of the breach and those that are in the contemplation of the parties to the contract. Direct or normal losses are losses of a type that would usually arise from a breach of contract, such as Juan having to pay the extra £50 for his computer. This is assumed to have been in the ‘reasonable contemplation' of the parties at the time they made the contract. Indirect or abnormal losses are losses of a type that are out of the ordinary, for example Juan having to spend more money on a computer as the AB model is no longer available. This is recoverable if, at the time of making the contract, AB knew it could happen in the event of breach. The defendant must also have accepted responsibility for that risk. Acceptance of risk is often implied from knowledge that the defendant has in relation to the situation.

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Jan 2010: Identify which court would hear the claim and outline the procedure that would be followed from issue of proceedings up to trial (5)
You must correctly identify and explain the correct track and court including the specific damages in the scenario and the min and max for the track you have chosen.
To start a claim the Claimant (Richard) will seek advice from a solicitor or complete a court claim form, N1 . This can be completed online. This form is simple to complete, requiring names and addresses for claimant and defendant (The bike Shop), brief details of the claim (such as ‘Damages for breach of contract resulting from the failure of to supply the bike), and the value of the claim. The purpose of this is to establish the fee payable and to help establish the choice of court and track. This claim form is then served on the defendant, usually by post, who must fill an return it in 14 days. The case is monitored by the court using a system called case monitoring . The court uses a computerised diary monitoring system to record court orders and requests, the return of documents such as the allocation questionnaire. Once the allocation questionnaires have been completed, a procedural judge (normally a District Judge) will allocate the case to the appropriate track. Case management has been introduced to avoid the problem of even quite trivial cases dragging on for years. After the case has been allocated the court sets a date for the trial. This date will be at least 21 days later, and the actual date will depend on what other directions need to be made.
Fast track cases are dealt with in the County court where the damages are between
£ 5000 to £25000 the case is more complicated. Multi track cases are dealt with in the
High court for any damages claim over £25000 .Richard would take his claim through the small claims track and to the Small claims court because he would be claiming less than
£5000 in damages from the Bike Shed. This is because the replacement bike has cost him £1299. The Small claims track and Small claims court Deal with simple cases.
Normally the Richard and The Bike Shed represent themselves and the case is heard in private in front of a district judge, in small claims court. This court is part of the county court. The emphasis is on little formality.
Only Add if time allows:
Alternative Dispute Resolution is an alternative method used by the claimant, Richard, other than going to court and has the benefits of being quicker and normally cheaper.
Negotiation could resolve Richard’s problem by discussion directly with The Bike Shed.
Mediation is when a neutral mediator (a person trained to help the parties reach a decision) that helps the parties reach a compromise solution. Conciliation is similar to mediation in that a 3rd party helps to resolve the dispute. The main difference is the conciliator usually plays more of an active role, perhaps suggesting solutions.

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You must choose the appropriate track and court and explain your choice using evidence from the scenario.
Juan would take his claim through the small claims track and to the Small claims court because he would be claiming less than £5000 in damages from AB. This is because the replacement computer has cost him £395. The Small claims track and Small claims court
Deal with simple cases. Normally the Juan and AB represent themselves and the case is heard in private in front of a district judge, in small claims court. This court is part of the county court. The emphasis is on little formality.
Alternative Dispute Resolution (ADR) is an alternative method used by the claimant,
Juan, other than going to court and has the benefits of being quicker and normally cheaper. Negotiation could resolve Juan’s problem by discussion directly with AB. An advantage of this is that this is private and also a quicker method of settling disputes. A disadvantage of this may be that Juan and AB cannot come to an agreement. Mediation is when a neutral mediator (a person trained to help the parties reach a decision) that helps the parties reach a compromise solution. Mediation is only suitable if there is some hope that Juan and AB can co-operate. Conciliation is similar to mediation in that a 3rd party helps to resolve the dispute. The main difference is the conciliator usually plays more of an active role, perhaps suggesting solutions. Arbitration is where Juan and AB agree to let 3rd parties make a binding decision. Private arbitration is covered by the Arbitration act 1996 and any decision made by the arbitrator will be binding if both parties sign a written agreement. Arbitrators can be lawyers or industry professionals (e.g. Institute of
Arbitrators).
If ADR fails or AB fail to do as they have agreed then Juan can still go back to court and continue with the process of taking his claim through to small claims court though litigation .