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CONCEPT OF LIABILITY
Criminal notes.
LAW 02 AS LAW
EXAM DATE: 30th May 2012 AM
W/C
Topic
9/1
(2
days)
16/1
23/1
30/1
6/2
13/2
20/2
27/2
5/3
12/3
19/3
26/3
2/4 to
15/4/
16/4
23/4/
30/4
7/5
14/5/12
Tick when
done
Key Skills Developed/Assessed/
other deadlines
Intro of module, Burden and standard of proof,
classification of offences, pretrial hearing, Bail,
legal aid, Actus Reus, Omissions, NFO intro in
terms of seriousness of injury and selecting the
correct offence.
Causation, Look at cases and NFO scenarios on
causation, Mens Rea
Transferred malice, Coincidence of AR and MR
and Strict Liability
NFO’s – lots of application question practice
NFO’s – lots of application question practice
NFO’s contd, Sentencing Aims, factors,
Sentences
HALF TERM
Mock exam (half a paper) – Recap on key issues
and exam technique
Contract Burden and standard of proof, track
system and courts – Offer and acceptance,
Invitation to treat
Termination of offers, counter offers,
communication of acceptance,
Consideration including past, intention to create
legal relations
Breach of warranty, anticipatory breach, Actual
breach, mitigation of loss
EASTER (inclusive)
Results issued – Discuss resits of law
01. Issue notes.
Pretrial procedure, case management, ADR,
Track system, Remedies, damages, causation,
remoteness, mitigation
Mock exam in full - Revision
Revision
Revision
Bank holiday Monday
Study Leave
Exam on 30/5/12 AM
Law 01 resit 24/5/12 PM
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Procedures for Defendants charged with a criminal offence
The category of offence dictates the court for trial:
1. Summary offences - tried in magistrates' court only, e.g., assault and battery with a maximum prison sentence of 6
months.
2. Indictable offences - tried in crown court only, e.g. S18 Offences Against the Person Act 1861 (OAPA) Causing
GBH with intent with a maximum prison sentence of life.
3. Triable-either-way offences may be tried in either court!, e.g. S47 OAPA 1861 Assault occasioning Actual bodily
harm and S20 (OAPA) malicious wounding both with a maximum prison sentence of 5 years.
Pre-trial matters:
This is the term given to All decisions made by the court before the trial of the Defendant.
All cases start in the Magistrates court with pretrial matters being sorted out by Magistrates. The pretrial hearing will take a
short time and is made up of different elements:
Early Administrative hearing: The Defendant (D) will be read out the criminal offence with which he is charged by the
court clerk and will be asked to plea guilty or not guilty.
Guilty pleas
For summary and triable either way offences if the D pleads guilty the Magistrates will hear evidence of mitigation and
aggravating factors and either adjourn the case for reports (e.g. probation officer report) or sentence straight away if they
can. If the triable either way offence is too serious for their sentencing powers they will send it to the Crown Court for
sentencing.
For Indictable offences the Magistrates will note the D’s plea and formally send the case to Crown Court. Bail and legal aid
will be dealt with at the Early Administrative hearing.
Not Guilty pleas
Where the D pleas Not guilty the Magistrates will decide whether issues of Bail / Reports / Legal Funding need to be
resolved before a trial can commence.
Bail:
Under the Bail Act 1976 Section 4 all Defendants have a general presumption of the right to bail. This means that they are
allowed to remain free until their trial takes place, innocent until proven guilty.
There are two types of Bail, conditional and unconditional.
Unconditional: This where the court imposes no conditions to the D’s bail except to turn up for any court hearings and the
trial.
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Conditional: This is where the court imposes conditions the D must agree to before he is allowed to be released from the
court. This can include reporting regularly to a police station, surrendering of a passport, living at a specific address or a bail
hostel.
If the D refuses the conditions of his bail or is denied bail the court will remand (send) him to prison until the date of his
trial.
Bail will be refused for a number of reasons:
1. The D has been previously denied bail due to failing to meet any conditions
2. Committing an offence whilst on bail
3. The D could interfere with a witness or it is for his or her own protection
4. The D is charged with a serious offence such as murder or manslaughter (D will only be granted bail in exceptional
circumstances).
For all Non Fatal offences it is likely that the D will be granted bail unless the Magistrates believe there are factors that are
exceptional in the case. The Magistrates will look at:
1. The Offence: The nature (type) and seriousness of the offence
2. The Defendant: His character, associations, community ties
3. Strength of Evidence
4. Record: Bail before
5. Record: Criminal record (previous convictions)
6. Any drug use by the D.
The Magistrates must give a reason if they decide to refuse bail and remand the D until the trial.
Legal Aid:
For Summary offences the D will be allowed to talk to a duty solicitor to discuss his plea and the evidence. For all not guilty
pleas the D will be given legal representation and help financially (legal aid) so that he can be properly represented in all
court hearings, including the Pretrial hearings. The rules regarding legal aid are set out in the Access to Justice Act 1999.
End of the Early Administrative Hearing
Summary offences and a not guilty plea: The Magistrates will arrange a court date for the trial and for witnesses and
evidence to be gathered for the trial and adjourn the case until the next court hearing or trial.
Indictable offence and a not guilty plea: The Magistrates will send the case to the Crown Court for a plea and directions
hearing, another name for an Early administrative hearing in the Crown Court.
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Triable either way offences and a not guilty plea: There are special procedures that the Magistrates must follow for these
cases, which normally are dealt with as soon as the early administrative hearing has resolved Bail and legal aid matters.
Mode of trial hearing for triable either way offences where D pleas not guilty
Where the D pleas not guilty the Magistrates have to firstly decide if they can deal with the case. If the case is complicated
or very serious, such as a S47 or S20 OAPA offence, then they will tell the D the case will have to be committed to the
Crown Court for all future hearings and the trial. The Magistrates find out how serious and complicated the case is by
questioning the defence and prosecution and looking at the facts of the case and the past criminal record of the D.
If the Magistrates believe they can hear the case at a trial then the D will be able to decide whether to have his case heard in
the Magistrates court or the Crown Court. It will be pointed out to the D that if he chooses a trial in the Magistrates court
and is found guilty the Magistrates can still send the case to the Crown Court, if they believe their sentencing powers are not
sufficient to punish the D. For example in a S47 ABH case or S20 malicious wounding case the maximum the D can be
sentenced to in a Magistrates court is 6 months in prison. If the case was sent to Crown Court the maximum prison sentence
then goes upto 5 years.
Indictable offences
Before the trial the Magistrates will briefly see the D to formally send them to Crown Court. Magistrates will not ask the D
to make a plea as this done in the Crown Court. At the Magistrates issues such as legal aid and bail will be dealt with, as
previously discussed.
Once the D appears in Crown Court, at a Plea and Case Management hearing, he will be asked to make a plea to the
charges. If he pleads guilty the case will be adjourned for presentence reports, e.g. probation report. If the D pleads NG bail
and legal aid will be considered again together with the setting of a trial date and the calling of witnesses and evidence. The
trial will take place on average 12 weeks after this hearing before a judge and jury.
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Introduction to Criminal Liability
Section A Actus Reus
1. Definition
Actus reus is a Latin term meaning guilty action. However, in law, not only an act but also an omission can be described as
the actus reus of a crime.
2. Acts
First of all an act must be voluntary. In Hill v Baxter, Lord Goddard argued: “Suppose a driver had a stroke or an epileptic
fit … he could not be said to be driving. A blow from a stone or an attack by a swarm of bees” would be similar. His
driving would no longer be voluntary and no offence would have been committed. This was applied in R v Whoolley
(1997), a case in which an HGV driver crashed into the back of slow moving traffic on the M62. The court accepted that his
sneezing fit rendered his actions involuntary.
There is an exception to this general rule. Sometimes people can be found guilty of a criminal offence for being in the
wrong place, even though they had no control over their actions. These are known as “state of affairs” crimes.
R v Larsonneur (1933) CA
Mlle Larsonneur was a French subject. When her permission to remain in the UK expired, she went to Ireland. However,
she was immediately deported from Ireland and brought back to Holyhead by the Irish police. She was handed over to the
English police on arrival, and charged under the Aliens’ Order 1920 with being “an alien to whom leave to land in the
United Kingdom had been refused”. The CA decided that she had been rightly convicted, even though she had been
brought to the UK by force.
Winzar v Chief Constable of Kent (1983)
Winzar had been taken into hospital on a stretcher but then discharged for being drunk. When he was found slumped in a
seat on a hospital corridor, the police were summoned to evict him. They took him into the street outside. They then placed
him in their police car and charged him with “being found drunk on the highway” contrary to Section 12 of the Licensing
Act 1872.
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3. Omissions
The general rule in English law is that there is no liability for a failure to act. For example, we can watch a blind child walk
over the edge of a cliff and are under no legal duty to try to stop him, even if we are close enough to do so. There is no
general ‘Good Samaritan’ law where a D would commit a crime for not doing what he should of, as is the case in France.
But there are exceptions where a crime will have been committed because the defendant failed to act.
(a) A duty arising from contract
Where a person is under a contract to act, his failure can be a criminal offence.
R v Pittwood (1902)
Pittwood was a gatekeeper on the Somerset and Dorset Railway. He had to keep the gate shut whenever a train was passing
between 7 a.m. and 7 p.m. Having opened his gates to allow a cart to pass over the line, he forgot to close it again before
going off to lunch. A few minutes later a passing train killed the driver of a hay cart as it was crossing the line. He was
convicted of manslaughter: it was his job to keep users of the line safe.
(b) A duty owed by parents to their children
Parents are expected by law to look after their children. This includes feeding them.
R v Gibbins and Proctor (1918) CA
The father of a child and the woman he lived with were convicted of murder when the child died as a result of their failure
to feed her. Although the child was not the woman’s, she had assumed responsibility for it by living with the man and
eating food provided by him.
(c) A duty voluntarily undertaken
A duty of care may also exist where there the defendant has voluntarily taken responsibility for the wellbeing of a person.
R v Stone and Dobinson (1977) CA
Stone was 67 years old, partially deaf, nearly blind, and of limited intelligence. He lived with his girlfriend, Dobinson, who
was described as inadequate. Living with them was had Stone’s sister, Fanny, who suffered from anorexia. In the spring of
1975 Stone and Dobinson made an unsuccessful attempt to find Fanny’s doctor, and in July a neighbour gave her a bedbath. By this time Fanny was bed-ridden and lying in her own excrement. She died in August. The pathologist’s report
stated that she had been in need of emergency medical care for days, if not weeks, before her death. Stone and Dobinson
were convicted of gross negligence manslaughter. They had assumed responsibility for Fanny as her carers. Their failure to
help or get help was criminal.
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(d) A duty to limit accidental harm
Where a person causes accidental damage, he is under a duty to take reasonable steps to limit the spread of the damage.
R v Miller (1983)
While squatting in a house, Miller fell asleep with a lighted cigarette. The mattress on which he was lying caught fire. He
was woken by the fire, but, rather than attempting to put it out, he went into another room and fell asleep. The house caught
fire and was badly damaged. He appealed against his conviction for arson, arguing that a failure to act is an omission and
cannot therefore establish the actus reus of the offence. He lost: it was possible to create liability by failing to remedy a
dangerous situation that one has oneself created.
(e) A duty to the public
A policeman has a duty of care as the holder of a public office. His duty is to the general public.
R v Dytham (1979) CA
Dytham was a police officer on duty in uniform near a club where a man was thrown out by a bouncer and kicked to death.
He took no steps to intervene, but drove off. He was convicted of misconduct whilst acting as an officer of justice. He
appealed on the ground that a failure to act does not create criminal liability. He lost.
(f) A duty arising from a statute
Liability will arise where a statute has imposed a duty to take positive action. This most frequently occurs in relation to
road traffic offences. For example the Road Traffic Act 1988 imposes a number of duties to act. S7(6) makes it an offence
to fail to provide a specimen when required to do so. Similarly, it is an offence not to wear a seat belt.
4. The Chain of Causation
In result crimes such as murder it is necessary to show that the unlawful act of the accused actually caused the harm to the
victim. The law operates a two-stage test. It asks first whether the accused in fact caused the harm (the factual test), and, if
so, whether he is liable in law (the legal test).
(a) The Factual Cause
This uses the “but for” test. In this first test the court will consider whether the harm would have happened “but for” the
unlawful action of the accused.
R v White (1910) KB
White put some potassium cyanide into his mother’s wine glass, intending to kill her as he would inherit under her will. In
fact, the dose was too small to succeed. Nevertheless, her body was found soon afterwards on the settee in her living room.
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The full glass was next to her, with some of the poisoned drink still in it. Medical evidence showed that she had died of
heart failure, not of cyanide poisoning. Nor was there any link between the poison and the heart attack.
It was decided on appeal that he could not be convicted of murder as he had not caused her death.
R v Pagett (1983) CA
While attempting to escape from arrest, the defendant shot at the police. In their return fire the police hit and killed the
defendant’s girlfriend who was being used as a human shield. The question before the CA was whether it was reasonably
foreseeable that the police would return fire in such circumstances. If it was, there would be no break in the chain of
causation and the defendant would be liable. It was decided that the action of the police was foreseeable, and Pagett had
therefore caused his girlfriend’s death.
(b) The Legal Cause
Once it has been established that the accused is the factual cause of the harm suffered by the victim, it then has to be shown
that he is also the legal cause. This makes sure that people are not found guilty when they are not to blame for the end result.
The court asks whether the defendant’s act continues to make a significant contribution to the end result.
R v Smith (1959) CMCA
A barracks room fight took place between soldiers from different regiments. The victim suffered stab wounds. While being
taken for treatment he was twice dropped, and when he arrived at the hospital he was given inadequate treatment. An hour
later he died of his stab wounds. Smith was convicted of murder. His appeal against conviction was rejected: the original
wound was still an operating and substantial cause at the time of the death. In the words of Lord Parker: “Only if it can
be said that the original wound is merely the setting in which another cause operates can it be said that the death did not
result from the wound.”
However, the chain of causation may be broken, either by the victim or by some unforeseeable event.
(i)
by the victim
The defendant will not be the legal cause if he can show that the victim caused the end result himself. However, this will
only succeed if the victim’s reaction was totally unreasonable.
R v Roberts (1971) CA
The victim jumped out of a car travelling over 20 mph after the driver, who was giving her a lift to a party, told her to
undress and grabbed her coat. He also told her that he had beaten up other girls who had refused. The question before the
CA was whether he was responsible for her injuries. He was responsible as the victim’s reactions were reasonable.
Similarly, the chain of causation is not broken by any particular condition of the victim that makes him more susceptible to
harm. Where the victim has a particular susceptibility, for example a thin skull, that makes him particularly susceptible to
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harm, the defendant must “take his victim as he finds him”. In other words, he is responsible for all the harm that he causes,
even harm he couldn’t have foreseen.
R v Hayward (1908)
A woman had a thyrus gland disorder. As a result she couldn’t cope with stress and exertion. During an argument with her
husband she ran out of their home into the street, followed by her husband shouting threats against her. She collapsed and
died. The husband argued that she would not have died but for her medical condition. The court held him responsible for
her death as his actions had accelerated it.
This rule applies not only to the victim’s physical condition.
R v Blaue (1975) CA
Jacolyn Woodhead was stabbed by the defendant. Because of her religious beliefs as one of Jehovah’s Witnesses she
refused a blood transfusion which doctors said could have saved her life. The defendant appealed against his conviction for
manslaughter (not murder because he suffered from diminished responsibility), arguing that the victim herself was
responsible for her death. In the Court of Appeal, Lord Lawton rejected this view, stating that: “It has long been the policy
of the law that those who use violence on other people must take their victims as they find them”. This includes their
religious beliefs.
(ii)
by an unforeseeable event
In cases of bad medical treatment the accused will rarely escape liability. However, an example of a case where the
defendant succeeded is:
R v Jordan (1956) CA
Jordan’s victim was admitted to hospital for a stab wound. While being treated he was subjected to a series of grossly
negligent treatments and subsequently died. At the time of his death the initial stab wound had nearly healed. Jordan
appealed against his conviction for murder, arguing that it was not the stab wound but the bad medical treatment that had
caused the death of the victim. He won his appeal: there had been a series of medical errors, and these had been the sole
cause of his victim’s death. The court said that the medical treatment was “palpably wrong”.
The judgment in Jordan will rarely be followed: it seems likely that only cases of grossly bad medical treatment
will be treated as not reasonably foreseeable. Treatment that is merely bad or incompetent is sufficiently common
to be regarded as reasonably foreseeable.
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Section B Mens Rea
Mens rea is a Latin term meaning guilty mind. It deals with the state of mind of the defendant at the time he committed the
crime. There are two main types of mens rea. These are:
1. Intention
2. Recklessness
For some crimes, however, a person can be found guilty without a guilty mind. These are generally known as crimes of
strict liability.
1. Intention
Intention is the most blameworthy state of mind under the law. In most serious crimes, such as murder, robbery and
burglary, it is necessary for the prosecution to prove that the defendant intended to commit the offence. The law provides
no clear definition of “intention”.
There are, though, clearly two different types of intention. The first, known as direct intent, describes situations where it is
the defendant’s purpose to bring about the unlawful consequence. For example, when Romeo kills Tybalt with a knife
while seeking revenge for the death of Mercutio, it is clear that he achieved his purpose. This would be a case of direct
intent.
Intention can be direct as in Mohan. Direct intent means it is your main aim or desire to bring about the consequence 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 must be proved to have specifically intended to cause the V GBH, really serious harm, through driving his car at
the officer.
However, if a mill owner set off a bomb on his premises during working hours in order to collect the insurance value of his
property, and the whole workforce is killed, he can still be regarded as intending their deaths, even though it isn’t his
purpose.
The House of Lords adopted this approach to intention based upon foresight of the consequence as a virtual certainty. This
is sometimes called indirect intent.
R v Woollin (1999) HL
Woollin was convicted of murdering his three month old son. He was alleged to have lost his temper and hurled him onto
the kitchen floor, causing him to fracture his skull and die.
The HL said that the jury may find intent on the part of the defendant where:
1. death or gbh was virtually certain to result from the accused’s acts; and
2. the accused actually foresaw this.
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2. Recklessness
Recklessness is taking an unjustified risk.
R v Cunningham (1957) CA
While attempting to steal money from a gas meter, Cunningham ripped the meter off the wall, allowing gas to escape and
endanger the life of a neighbour. He could only be found guilty of “maliciously administering a noxious thing so as to
endanger life” if he acted deliberately to endanger life, or if he recklessly endangered life. To be reckless he has to see the
risk and then choose to take that risk. It is conscious risk-taking. Cunningham was found not guilty as he had not seen the
risk involved.
3. Transferred Malice
Where a person has the mens rea of one crime, and commits the actus reus of the same crime, although not in the way he
expected, he can still be found guilty. 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.
R v Latimer (1886)
Latimer was quarrelling with Horace Chapple in a public house, and hit him with his belt. The blow glanced off him and
severely injured a bystander. Latimer was convicted of maliciously wounding the woman. He appealed on the ground that
he had not intended to hurt her and therefore lacked the mens rea for the offence. His appeal was dismissed. There was no
requirement that the mens rea of a crime should relate to a named victim.
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 cant transfer from person to object or object to person.
R v 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.
4. Coincidence of Actus Reus and Mens Rea
The defendant must possess the necessary mens rea at the time the actus reus is committed. For example, if Dan drives to
Pat’s house intending to murder him, but en route runs over a pedestrian and kills him, Dan cannot be charged with murder
even if the pedestrian he happened to kill was Pat. Dan had the mens rea of murder, and committed the actus reus, but these
did not coincide in time. However, the courts are reluctant to allow criminals to take unfair advantage of this doctrine.
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(a) the actus reus comes before the mens rea
Sometimes the defendant will argue that he lacked mens rea when he first committed the offence. In such cases the court
will rule that the actus reus is a “continuing act”, and that the defendant is guilty if he had the mens rea at any time during
the continuing act.
Fagan v Metropolitan Police Commissioner (1968) CA
Fagan had been instructed by the police to pull in to the roadside. He did so, but accidentally drove the car onto a police
constable’s foot. The constable shouted: “Get off. You are on my foot.” However, Fagan shouted: “**** you, you can
wait.” and turned off the engine. He was convicted of assaulting a police constable in the exercise of his duty, but he
appealed.
His appeal was rejected. Driving the car onto the constable’s foot and then leaving it there was one continuous act. He was
liable as long as he had the necessary mens rea at some stage during that continuing act. He formed the mens rea when he
decided to leave the car on his foot.
(b) where the mens rea comes before the actus reus
At other times the defendant will argue that the mens rea came first, but was over before he committed the actus reus.
Thabo Meli v R (1954) PC
The defendants had taken their victim to a hut and then hit him over the head to kill him. Believing him to be dead, they
threw his body over a cliff. In fact, it was then that he died. The defendants argued that there had been no coincidence of
actus reus and mens rea. They said that when they had the mens rea for murder, they had not in fact killed him; and when
they had in fact killed him, they lacked the mens rea as they believed him already to be dead. The appeal was dismissed: it
was necessary to look at the defendant’s actions as a series of events, starting with hitting him on the head, and ending with
his death of exposure. It was enough for the prosecution to show that at some time during this chain of events the
defendants had mens rea.
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5. Strict Liability
For some crimes there is no need for the prosecution to prove mens rea. This could be for the whole offence, or for one
element of it. These are known as crimes of strict liability. Most of these have been created by statute. They are designed to
protect the public, and are generally minor offences.
Identifying Strict Liability Offences
There is a presumption in favour of mens rea, and this is especially strong in truly criminal cases. These offences are 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.:
Sweet v Parsley (1969) HL
Stephanie Sweet was convicted under The Dangerous Drugs Act 1965: she had sub-let some rooms to students who,
unknown to her, smoked cannabis there. She was convicted of being concerned in the management of premises used for the
purpose of smoking cannabis. On appeal, her conviction was quashed. The HL decided that this was a “truly criminal”
offence and so needed proof of mens rea.
A strict liability offence must be a matter of social concern. These are normally regulatory offences.
Alphacell Ltd.v Woodward (1972) HL
A company had taken reasonable precautions to prevent pollution from its works entering a river. However, the pump
became clogged up with brambles and leaves, and pollution did enter into the river. The court decided that the defendants
had in fact caused the polluted matter to enter the river, and that strict liability applied. The company was guilty.
Smedleys v Breed (1974) HL
A housewife found a dead caterpillar in a tin of peas she bought from a supermarket. The HL agreed with the lower courts
that this was a strict liability offence, and that it did not matter whether or not Smedleys had taken all reasonable care.
Harrow LBC v Shah and Shah (1999) QBD
The owners of a shop were aware of the rules about the sale of lottery tickets. They put up notices in their shop, and told
staff not to sell any tickets to anyone under the age of 16. Nevertheless one of their staff sold a ticket to an under-age boy,
even though he seemed older. They were guilty: liability was strict. No mens rea was needed for the age of the boy.
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How to answer a problem set on a Non Fatal Offence
Stage 1: Always look for the injuries caused and the offence that you need to talk about will be related to the worst injury.
Define this offence quoting any act relevant.
Stage 2: Define the Actus Reus of the offence and then use 1-2 cases to define words that are important in the actus reus.
Stage 3: Use evidence in the problem and link this to proving the definition of the actus reus. You are doing this right if you
are using the D and V’s name a lot and quoting from the problem.
Stage 4:Conclude as to whether the AR is satisfied.
Stage 5: Define the Mens Rea of the offence and then use 1-2 cases to define words that are important in the Mens Rea.
Stage 6: Use evidence in the problem and link this to proving the definition of the Mens Rea. You are doing this right if you
are using the D and V’s name a lot and quoting from the problem.
Stage 7: Conclude as to whether the MR is satisfied.
Stage 8: Finally say whether you think the D is guilty of the offence.
Common injuries to look out for in a problem question
Note: Remember if there is no contact between D and V and no ‘bodily harm’ it can only be an assault.
Common Assault:
Battery
Grazes or scratches
Abrasions
Minor bruise
S47 Common Assault
occasioning actual Bodily
Harm
Loss or breaking of a tooth
Swelling
Temporary loss of consciousness
Extensive or multiple bruising,
E.g. if V fall’s down or downstairs
as a result of a D’s touch or V’s
apprehension of violence.
Displaced broken nose
Reddening of the skin
Minor fractures
Superficial cuts
A black eye
Minor cuts requiring stitches
Psychiatric injury – more than
fear, distress and panic
Section 18 and S20 GBH or
wounding
Injury causing permanent disability
or disfigurement.
Broken bones
Dislocated joints
Injuries causing substantial loss of
blood
Injuries resulting in lengthy
treatment
Severe psychiatric injury – more
than fear, distress or panic, and
requiring specialist treatment.
Note: The above are used as guidelines by the Crown Prosecution Service but you must remember the definitions of the
offences are more important.
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Non-fatal Offences against the Person
1.
Assault
Under S39 of the Criminal Justice Act 1988, assault is a summary offence with a maximum penalty of six months
imprisonment. The elements of the offence have been developed at common law.
The actus reus of assault
An assault is an act by D that makes V apprehend immediate, unlawful personal violence. This can occur by deed
or word. There is no need for any physical contact between defendant and victim: the emphasis is on what the
victim thought was about to happen.
Smith v Superintendent of Woking Police Station (1983) QB
The defendant stood in the garden of his victim, staring through the window at her dressed only in her night-dress.
He was guilty of assault: even though he could not attack her at that very moment, her fear was of something
sufficiently immediate and violent.
R v Ireland (1996) HL
Ireland had made a series of unwanted silent telephone calls to three women, causing them to suffer palpitations,
cold sweats, anxiety, dizziness and insomnia. He appealed against his conviction for abh on the ground that he
had not committed an assault on the women (as required for conviction for abh). His conviction was upheld.
The mens rea of assault
The mens rea of assault is either intention or Cunningham recklessness. In other words the defendant must either
have intended to make his victim apprehend immediate, unlawful violence, or have seen the risk of this and yet
gone ahead with his act.
Page 17 of 42
R v Venna (1975) CA
The defendant was arrested after being involved in a fracas with the police during which he had fractured with his
foot the hand of one of the officers. He was convicted of assault occasioning abh. He appealed on the ground
that recklessness was insufficient mens rea for the offence. It was decided that recklessness was sufficient for the
offence.
Scenarios for assault
In each of the following scenarios identify the relevant case law and apply it to the facts to decide whether the
defendant is criminally liable.
1. Antonio wanted to go out with Maria. He subjected her to a prolonged period of harassment through phone
calls, visits to her home, letters and flowers. She was afraid he might hurt her: she just wanted to be left alone.
2.
Bruno, a former heavyweight boxer, was a practical joker. One evening in the pub he pretended to
throw a punch at a stranger. The man collapsed in fear.
3. Carl had almost cut right through the thumb on his left hand while chopping wood with an axe in his garden.
He was now waving the axe around in the air, jumping up and down, and screaming loudly. A passer-by was
terrified he was going to attack her.
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2.
Battery
Under Section 39 of The Criminal Justice Act 1988 battery is a summary offence with a maximum penalty of six
months imprisonment or a level 5 fine. The elements of the offence have been developed at common law.
The actus reus of battery
Battery is the infliction of unlawful personal violence by the defendant upon the victim. It does not necessarily
involve an assault prior to it, but the two often accompany each other. In Cole v Turner 1705 battery was
defined as “the least touching of another person in anger”. This includes the clothes a person wears. For
example, in Thomas 1985 the rubbing of a girl’s skirt was held to be sufficient for a battery.
A battery can be committed without the defendant touching the victim himself.
Fagan v MPC (1969) QB
The defendant accidentally drove his car onto a policeman’s foot and then intentionally left it there. This was a
battery. The actus reus occurred when Fagan drove onto the policeman’s foot. The mens rea occurred when he
decided to leave the car there.
R v Haystead (2000) DC – Indirect AR of battery
The defendant committed a battery against a woman when he punched her. He also committed a battery against
her child when it fell out of her arms onto the floor, even though there was no direct contact between Haystead
and the child.
The mens rea of battery
The mens rea of the offence is intention or recklessness as to causing a battery.
It was said in Venna: “…the element of mens rea in the offence of battery is satisfied by proof that the defendant
either intentionally or recklessly applied force to the person of another”.
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Scenarios for Battery
1. Gordon deliberately tripped up Tony as the two men were walking side by side down the street. Tony fell,
but suffered no injuries.
2. Grant thumped Phil in the chest, causing him to fall into Barbara.
3. Denis was running down the road chasing a bus. He raced around a corner and saw a crowd of young men in
his way. He tried to avoid them all but, in his hurry, brushed past one of them. No harm was done.
4. Fiona was a waitress in a hotel bar. While serving the customers at one of her tables, she tripped over an
umbrella and poured a bowl of minestrone soup down the back of a lady. It ruined her jacket.
Page 20 of 42
3.
Actual Bodily Harm
Section 47 of the Offences Against the Person Act 1861 provides:
“Whosoever shall be convicted on indictment of any assault occasioning actual bodily harm shall be ........ (liable
to punishment).”
The actus reus of Actual Bodily Harm
There are two elements:
(i) an assault or a battery
The assault can be the common law offence of either assault or battery described above. The assault or battery
must cause the bodily harm. Therefore it is necessary to consider the chain of causation at this point.
(ii) actual bodily harm
The assault or battery must cause the actual bodily harm. Actual bodily harm has been widely interpreted,
including not just physical injury but also psychological injury such as shock. In the 1954 case of R v Miller, in
which the defendant was charged with the abh of his wife, Judge Lynskey said.
“Actual bodily harm .... includes any hurt or injury calculated to interfere with the health or comfort of the
prosecutor.” Because a nervous condition came within this definition, the defendant was convicted of abh.
However, a more recent decision of the Court of Appeal would indicate a greater degree of harm is required.
R v Chan-Fook (1994) CA
The defendant had locked his victim in a room and questioned him robustly, believing him to have stolen an
engagement ring. He was injured while trying to escape from the second floor room.
In determining whether this amounted to actual bodily harm, the CA stated that:
“The word harm is a synonym for injury ..... the injury should not be so trivial as to be wholly insignificant....
Bodily injury may include injury to any of those parts of his body responsible for his mental and other faculties.”
However, Hobhouse LJ made it clear that, although abh does include psychiatric injury, it does not extend to
states of mind such as fear or distress or panic unless these are evidence of some identifiable clinical condition.
The definition of actual bodily harm was extended to hair being cut without the consent of the victim in DPP v
Smith (2006), where the court determined that hair was to be treated as part of the body and noted that cutting a
Page 21 of 42
woman’s hair without her consent is a ‘serious matter amounting to actual (not trivial or insignificant) bodily
harm’. It was also stated, obiter, that if paint or a similar material was put on the hair, that could also be actual
bodily harm. In T v DPP (2003) loss of consciousness, even momentarily, was held to be ABH.
The Assault or battery must cause (occasion) the ABH – indirect ABH
DPP v K: A 15 year old school boy took some acid from a science lesson. He placed it into a hot air hand drier in
the boys' toilets. Another pupil came into the toilet and used the hand drier. The nozzle was pointing upwards and
acid was squirted into his face causing permanent scars. It was held that the application of force could be
indirectly applied. D was found guilty of ABH.
The mens rea of actual bodily harm
The mens rea is intention or Cunningham recklessness for the assault or the battery. The defendant does not have
to intend or foresee any actual bodily harm.
R v Savage (1991) HL
The defendant had thrown a glass of beer over her husband’s former lover. The glass slipped out of her hand,
broke and cut the victim’s wrist. The HL ruled that the mens rea for the offence of assault occasioning abh was
the same as for assault or battery i.e. the defendant did not need to intend or foresee the actual harm suffered by
the victim. Rather it was sufficient for him to have caused the harm as a result of:
either putting the person, intentionally or recklessly, in apprehension of unlawful personal violence (assault),
or touched the victim unlawfully, either intentionally or recklessly (battery).
Page 22 of 42
Scenarios for occasioning actual bodily harm
1. After a fight with a drunk in George Square, Paul was taken to hospital. He had suffered heavy blows to his
face. This resulted in extensive bruising and the loss of two teeth. The drunk had intended to hit Paul, but not
to cause him such harm.
2. George was running to catch a bus at the stop ahead of him. He barged past a group of people.
Unfortunately one of the group fell over and suffered a sprained ankle.
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4.
Inflicting Grievous Bodily Harm / Malicious Wounding
Under S20 of The Offences Against The Person Act 1861 is the offence of inflicting grievous bodily harm or
maliciously wounding.
(a) The actus reus a Section 20 offence
The actus reus of this offence can be either grievous bodily harm or wounding.
(i) Grievous Bodily Harm
The actus reus of grievous bodily harm has been re-examined by the courts in recent years. In DPP v Smith
(1961) grievous bodily harm was described as “really serious harm”. The normal examples are fractured bones,
disablement, and the rupturing of internal organs.
This offence does not require any direct contact between the defendant and his victim, GBH or a wound can be
indirectly caused by D without any touching at all.
R v Martin (1881)
The defendant placed a bar across the entrance to a theatre and then caused panic by shouting “Fire!”. Many
people inside the theatre were injured, some seriously, in their stampede to get out. Martin was convicted of gbh
for the injuries that his actions caused.
The courts have extended the scope of gbh to cases involving stalking.
R v Burstow (1997) HL
A woman was subjected to a campaign of harassment by her former lover. There was no direct contact. This led
to her suffering severe depression. The HL decided that inflicting meant causing, and that the degree of harm she
suffered was serious.
(ii) Maliciously wounding
The prosecution has to prove that the defendant either inflicted grievous bodily harm or wounded the victim. The
wounding requires there to be a break in the surface of the skin. A graze is therefore insufficient, as is the
causing of internal bleeding.
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C (a minor) v Eisenhower (1983)
The defendant hit the victim in the eye with a pellet from an air rifle, rupturing a blood vessel and causing internal
bleeding, but not breaking the skin. The offence of wounding had not therefore been committed.
(b) The mens rea of a Section 20 offence
The mens rea for the offence is defined in the word “maliciously”. In Cunningham it was held that the word
maliciously means either intentionally or recklessly. It is enough for the prosecution to prove that the defendant
either intended or was reckless about causing some harm. He does not have to intend or foresee serious harm.
R v Mowatt (1968) CA
The defendant had attacked a police officer and subsequently convicted under Section 20. He appealed arguing
that he had not foreseen serious harm.
His appeal was dismissed: as long as he had foreseen the possibility of some harm he could be convicted under
Section 20.
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5.
Malicious Wounding / Inflicting GBH with Intent
Under Section 18 of The Offences Against the Person Act 1861 there is a more serious form of malicious
wounding or inflicting gbh. The actus reus is virtually the same as for a S20 offence.
The mens rea of a Section 18 offence
It must be shown that the defendant intended (direct or oblique) serious harm or to have intended to resist or
prevent the lawful arrest of a person. Recklessness is not sufficient, nor is intention of some harm.
R v Belfon (1976) CA
The defendant slashed his victim with a razor causing severe wounds to his face and chest. He was convicted
under Section 18. The trial judge had told the jury to convict if they were satisfied that the defendant had
foreseen gbh as a probable result of his actions. He appealed. His appeal was upheld: the prosecution had to
establish that it was the defendant’s purpose to do some gbh, and recklessness was not sufficient.
Scenarios for grievous bodily harm
1. John had decided to gain revenge against Mick who had stolen his girlfriend from him. He lay in wait
outside Mick’s home, and attacked him with a spade, hitting him several times over the head. Mick suffered
serious head injuries that required three weeks in hospital.
2. Ringo was a rodeo rider. One day he was riding a particularly dangerous bull in the ring. However, he
steered it towards an open gate and into the crowd. It crashed into a tent, causing it to collapse and break the
leg of a store-keeper working inside.
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Exercise
Match up the cases to the facts and to the points of law.
1. Martin
injured escaping second
assault need not be
floor room
immediate
2. Belfon
car on PC’s foot
gbh caused indirectly
3. Savage
woman frightened by man
battery can be indirect
outside her window
4. Smith v Woking Police
hit with pellet in eye
serious psychological harm
can be gbh
5. Burstow
theatre stampede
test for mens rea for assault
and battery
6. Haystead
woman harassed by lover
S18 mens rea intention
7. Venna
victim slashed with razor
continuing act a battery
8. Eisenhower
PC’s hand fractured
abh includes mental harm
9. Fagan
beer glass thrown over rival
test for S47 mens rea
10. Chan-Fook
baby fell on floor
wounding a break in skin
Page 27 of 42
Summary of non-fatal offences
Crime
Mens rea
Cases
Max. sentence
Actus reus
Assault
Battery
Causing V to
Intention or subjective
apprehend immediate
recklessness to
unlawful violence
causing actus reus
Venna
Infliction of unlawful
Intention or subjective
Fagan
6 months or
personal force
recklessness as to
Haystead
£5,000 fine
Smith
6 months or
Ireland
£5,000 fine
causing actus reus
Venna
Assault or battery
Intention or subjective
Miller
causing actual bodily
recklessness as to the
harm
assault or battery
Savage
Inflicting Gbh:
Intention or subjective
Martin
S20 gbh or
serious injury;
recklessness as to
wounding
Wounding: all layers
some harm
ABH
Chan-Fook
Burstow
5 years
5 years
Eisenhower
Mowatt
of skin broken
S18 gbh
Causing Wounding or Specific intent to
with intent
gbh as in S20
Life
cause gbh, or intent to
Belfon
resist lawful arrest
Woollin
Page 28 of 42
Summary of Non-fatal Offences against the Person
1. Assault
(common law offence)
make victim afraid that unlawful violence is about to be used against him
Smith v Woking Police
standing outside window
Ireland
harassment
R v Venna (1975)
intention / Cunningham recklessness of putting victim in fear of immediate
unlawful violence
2. Battery
(common law offence)
Cole v Turner
the least touching of another person in anger
Fagan v MPC
a continuing act
R v Venna (1975)
intention / Cunningham recklessness of applying unlawful force
3. Actual Bodily Harm
(S47 OAP 1861)
(i) assault or battery
(ii) bodily harm: physical or psychological
Miller (1954)
any hurt or injury calculated to interfere with the health or comfort of the victim
Chan-Fook (1994)
abh includes mental/psychological harm or injury
DPP v K
ABH can be indirectly applied without D touching V.
Savage (1991)
intention / Cunningham recklessness for assault or battery
4. Grievous Bodily Harm / Malicious Wounding (S20 OAP 1861)
(a) wounding
C v Eisenhower (1983):
a break in the surface of the skin
(b) gbh
DPP v Smith (1961):
really serious harm
Mowatt (1968)
Burstow (1997)
includes serious psychological harm
intention/ Cunningham recklessness of causing some harm
5. Grievous Bodily Harm / Malicious Wounding with Intent
(S18 OAP 1861)
actus reus as for s20 offence
Intention to cause gbh or to avoid arrest
Belfon (1976)
need to prove intention to cause gbh; recklessness not enough.
Page 29 of 42
Exam scenarios and questions
Jan 2010
Ashok was driving behind Ben. At some traffic lights, Ashok pulled alongside Ben and pointed his fingers
at him in the shape of a gun, and mouthed towards him that he should be shot. Ben was very scared by
this. Ashok then accelerated away from the lights to get ahead of Ben. Two hundred metres along the
road, Ashok braked suddenly so that Ben was forced to stop.
Ashok then got out of the car carrying an iron bar. Ashok used the bar to smash the side window of Ben’s
car. As the bar broke through the window, it struck Ben on the shoulder, causing some bruising. Ashok
then drove away.
1. Discuss the criminal liability of Ashok for the incident at the traffic lights. (7)
2. Discuss the criminal liability of Ashok for the bruising caused to Ben by the iron bar. (7)
June 2010
Carl was waiting patiently in a queue at a fast food outlet. Dane, who was behind him, was in a hurry and
was becoming very angry about the slow service. When the queue moved forward, Carl did not
immediately move forward as well. This annoyed Dan, who pushed Carl in the back, causing him to
stumble and fall onto Enid, an old frail lady. Enid was knocked over by Carl’s fall but unhurt.
Dan, who had never been in trouble with the police, was horrified as what had happened and immediately
gave all possible help to Enid, who was later diagnosed with a broken hip.
1.Discuss the criminal liability of Dan for pushing Carl (7).
2.Discuss the criminal liability of Dan for the injuries suffered by Enid (7).
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HOW TO ANSWER A CRIMINAL PROBLEM QUESTION
Abdul and his friends are sitting on a bus and notice that Ben is standing by the door waiting to get off. Abdul
shouts across the bus, “Watch out Ben, I’m coming to get you!” Ben gets off the bus hastily and falls over suffering
minor bruising. Abdul remains on the bus and laughs with his friends.
Discuss the criminal liability of Abdul for the injuries suffered by Ben (7).
Stage 1 (marks = 1): What are the injuries caused to Ben (see page 14)?
What is the most appropriate offence to charge Abdul with (see page 14)?
Define this offence quoting any act relevant.
Stage 2 (marks = 2): Define the Actus Reus of the offence
Explain one key case linked to the AR and the scenario
What evidence from the scenario exists to prove Abdul satisfied this element of the AR?
Explain another key case linked to the AR and the scenario
What evidence from the scenario exists to prove Abdul satisfied this element of the AR?
Stage 4 (marks = 1): Write a short sentence saying whether or not the AR of the offence is satisfied.
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Stage 5(marks = 2): Define the Mens Rea of the offence
Explain one key case linked to the MR and the scenario
What evidence from the scenario exists to prove Abdul satisfied this element of the MR?
Explain one key case linked to the MR and the scenario
What evidence from the scenario exists to prove Abdul satisfied this element of the MR?
Stage 7(marks = 1): Write a short sentence saying whether or not the MR of the offence is satisfied.
Stage 8: Finally say whether you think the D is guilty of the offence.
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Problem Questions
1. Abdul and his friends are sitting on a bus and notice that Ben is standing by the door waiting to get off. Abdul
shouts across the bus, “Watch out Ben, I’m coming to get you!” Ben gets off the bus hastily and falls over and
breaks his collar bone. Abdul remains on the bus and laughs with his friends.
2. Abdul and his friends are sitting on a bus and notice that Ben is standing by the door waiting to get off. Abdul
shouts across the bus, “Watch out Ben, I’m coming to get you!” Ben gets off the bus hastily and falls over and
cuts his face leaving a permanent scar. Abdul remains on the bus and laughs with his friends.
3. Abdul and his friends are sitting on a bus and notice that Ben is standing by the door waiting to get off. Abdul
shouts across the bus, “Watch out Ben, I’m coming to get you!” Ben gets off the bus hastily and knocks over
Clara, an old lady waiting to get on the bus. Clara suffers a broken hip and is likely to have permanent mobility
problems as a result. Abdul remains on the bus and laughs with his friends.
4. Abdul and his friends are sitting on a bus and notice that Ben is standing by the door waiting to get off. Abdul
shouts across the bus, “Watch out Ben, I’m coming to get you!” Ben gets off the bus hastily. Abdul follows
Ben off the bus and chases him down the street. Abdul catches Ben and stabs him repeatedly with a knife.
5. Abdul and his friends are sitting on a bus and notice that Ben is standing by the door waiting to get off. Abdul
shouts across the bus, “Watch out Ben, I’m coming to get you!” Ben gets off the bus hastily and falls over
suffering a grazed hand. Abdul remains on the bus and laughs with his friends. Ben is worried that his graze
might become infected so goes to his doctor’s surgery for tetanus jab. This is administered by a nurse who uses
the wrong dosage. Ben is paralysed as a result.
Page 33 of 42
HOW TO ANSWER A CRIMINAL PROBLEM QUESTION – Answers
Abdul and his friends are sitting on a bus and notice that Ben is standing by the door waiting to get off. Abdul
shouts across the bus, “Watch out Ben, I’m coming to get you!” Ben gets off the bus hastily and falls over suffering
minor bruising. Abdul remains on the bus and laughs with his friends.
Discuss the criminal liability of Abdul for the injuries suffered by Ben (7).
Stage 1 (marks = 1): What are the injuries caused to Ben (see page 14)?
Minor Bruising
What is the most appropriate offence to charge Abdul with (see page 14)?
Assault – Abdul does not touch Ben.
Define this offence quoting any act relevant.
Intention or subjective recklessness by D (MR)
to causing the V (AR)
to apprehend immediate unlawful violence (AR)
A common law offence (created by judges through case law) but recognised as a Summary only offence under S39 of the
Criminal Justice Act 1988.
Stage 2 (marks = 2): Define the Actus Reus of the offence
D causing the V (AR)
to apprehend immediate unlawful violence (AR)
Explain one key case linked to the AR and the scenario (page 15)
Apprehend unlawful violence – R v Ireland: Can be caused by word or deeds or both. In Ireland the D made silent phone
calls and this was still classed as the V being able to apprehend unlawful violence.
What evidence from the scenario exists to prove Abdul satisfied this element of the AR?
Abdul made a threat “watch out Ben I am coming to get you” of immediate unlawful violence by words satisfying this
element of the AR of an assault.
Explain another key case linked to the AR and the scenario
The unlawful violence has to be immediate: Smith v Woking: D was Staring through the window at the V dressed
only in her night-dress. This was sufficient to be immediate even though he could not attack her at that very
moment. Her fear was of something sufficiently immediate and violent to be the AR of an assault.
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What evidence from the scenario exists to prove Abdul satisfied this element of the AR?
Ben got off the bus “hastily” as a result of Abdul’s threats and fell over causing minor bruising. Clearly this is evidence
that Ben apprehended unlawful violence from Abdul’s threat and that it was sufficiently immediate for him to suffer a
minor injury. This satisfies another element of the AR of assault.
Stage 4 (marks = 1): Write a short sentence saying whether or not the AR of the offence is satisfied.
The AR of assault is satisfied as clearly Ben apprehended immediate unlawful violence as a result of Abdul’s threat to
“get him”.
Stage 5(marks = 2): Define the Mens Rea of the offence
D Intentionally or subjectively recklessly causes the V to apprehend immediate unlawful personal violence.
Explain one key case linked to the MR and the scenario
Venna: decided that the MR of an assault can either be Intention or subjective recklessness.
What evidence from the scenario exists to prove Abdul satisfied this element of the MR?
Abdul shouts a threat to Ben that he is coming to get him which is evidence that he intended Ben to apprehend
immediate unlawful personal violence, even though Abdul just stayed on the bus and only laughed when Ben fell over.
Explain one key case linked to the MR and the scenario
Cunningham: Subjective recklessness is where the P has to prove that the D has foreseen the risk of causing V to
apprehend immediate unlawful personal violence and yet gone ahead with his act.
What evidence from the scenario exists to prove Abdul satisfied this element of the MR?
Clearly Abdul must have meant to frighten Ben by shouting threatening words at him. As Abdul said he was “coming to
get” Ben just as he was leaving the bus he must have foreseen the risk of causing Ben to believe this to be a real threat of
violence, but Abdul still went on to take this risk by shouting at Ben. The fact that Abdul laughs when Ben falls over also
shows that Abdul was aware of the risk of Ben feeling threatened by his words and even being injured as a result.
Stage 7(marks = 1): Write a short sentence saying whether or not the MR of the offence is satisfied.
As Abdul was at least reckless as to causing Ben to believe he was to be attacked by Ben he has the MR of an assault
Stage 8: Finally say whether you think the D is guilty of the offence.
AS Abdul has been proven to have the AR and MR of an assault he can be said to guilty of this offence on Ben.
Page 35 of 42
Causation Flow Chart
You must explain the following tests in a theory question.
In an application question you must explain and apply the following tests in this order.
Defendant’s Act
(E.g. unlawful force
punching the V)
Factual
Causation
Legal
Causation
The “But for” test
White 1910
But for the D punching the V using
unlawful force would the V have
been inflicted with a black eye?
D’s conduct must be a significant
contribution (Cheshire) to the criminal
consequence
Or
Substantial and operating contribution
(Smith 1961) to the criminal consequence
The D’s conduct does not have to be the sole
(only) or main cause of the criminal
consequence as long as it is A cause. (Pagett)
Criminal consequence
(E.g. unlawful force
punching the V causes a
black eye)
Page 36 of 42
Task on Causation
Apply the flow chart tests on causation only to the following scenarios. Always use the test in context such as using
the D’s and V’s name, and using evidence of the facts of the situation. At the end your answer should conclude
whether the AR is present or not. All questions are worth 7 marks.
1. Aled has been threatened by Ben in the past. When Aled sees Ben approaching him in the street, Aled runs
across the road without looking and is knocked down and injured by a car. Would Ben be liable for the
injuries?
2. Toyah stabs Steve in the arm. His injury is not serious but needs stitches, so a neighbour takes Steve to the
hospital in his car. On the way to the hospital, the car crashes and Steve sustains serious head injuries. Would
Toyah be liable for the head injuries?
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3. Lewis has broken into Katie’s third floor flat. He threatens to rape her and in order to escape from him she
jumps from the window and is seriously injured. Would Lewis be liable for her injuries?
4. Ross stabs Panjit in the chest. Panjit is taken to hospital where he is given an emergency blood transfusion.
Unfortunately, he is given the wrong type of blood and he dies. Would Ross be liable for Panjit’s death?
5. Complete Q5 from the Jan 2011 exam paper
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Mens Rea problem questions – 1-3 Apply the test for intention only
1. Geraint dislikes Victor and decides to attack him. Geraint uses an iron bar to hit Victor on the head. Victor
suffers serious injuries as a result.
2. Inderpal throws a large stone into a river to see how much of a splash it will make. Jake is swimming in the
river and is hit on the head by the stone and suffers from a large wound.
3. Kylie throws a large stone from a bridge, and there is a lot of traffic on the motorway. The stone smashes
through the windscreen of Ashley’s car and breaks his passengers arm.
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Apply the test for subjective recklessness only.
4. John tore a gas meter from the wall of an empty house in order to steal the money in it. Gas leaked from the
meter into the next door house making the woman occupant ill. John says he did not realise the risk of gas
escaping into the next door house.
5. Anish is walking along a canal bank. Carol is in a hurry and pushes past him, knocking him into the canal.
Anish hits his head on the side of the canal and suffers a fractured skull.
6. D threw a beer over another woman in a pub. In doing this the glass slipped from D’s hand and V’s hand was
cut by the glass. D said that she only intended to throw the beer over the woman. She did not intend any other
injury.
Discuss whether or not D has the mens rea of a battery.
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Coincincidence of Actus Reus (AR) and Mens Rea (MR)
For a crime to have been committed the AR and MR must be committed very close together (normally at the same together). If
the P can’t prove the AR and MR happened together there is no criminal offence. This is called the contemporaneity rule.
Contemporaneity means existing, or happening during the same period of time.
However there are two situations or exceptions to this rule, where the courts have said the AR and MR have happened together,
even though the facts clearly show this not to be the case.
Actus Reus as a continuing Act
AR can be said the continuing act until the D has the MR, in certain situations.
Fagan v MPC: D reversed his car on to a police officer’s foot (V) by mistake. V shouted to the D to move the car but D told
him he wouldn’t do this. Eventually D moved the car. D was charged with battery. D argued that as the AR had been completed
before MR of the battery was formed he wasn’t guilty of the offence, there was no contemporaneity. The court held D was
guilty as they said the AR could be viewed as a continuing act until the MR occurred.
D reverses his
car onto V’s
foot
Task: Place the following key events on the above timeline. Draw a line showing when the AR of the offence starts and
finishes.
Infliction of unlawful force (AR)on D
D’s Intention to inflict unlawful force on V
D moves his
car from V’s
foot
Page 41 of 42
Transferred Malice and Coincidence of Actus Reus and Mens Rea problem
questions
TASK: Explain in the following situations whether actus reus and mens rea are present, including
transferred malice. Include any cases that help you decide this.
1. Bart has had an argument with Cara. He aims a punch at her head, but Cara dodges out of the way and Bart
hits Homer, who was standing behind Cara.
2. Desmond is sitting in a lecture. He pushes his chair back, but does not realise that one of the chair legs is
pressing onto Mark’s foot. Mark asks Desmond to move the chair, but Desmond thinks what has happened
is funny and does not move but sits there laughing for several minutes.
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3. Sian throws a stone at a cat. Her aim is very poor and the stone hits Ratinder who is standing several feet
away.
4. John, an impotent man, fails to have sex with Joan, a prostitute, who mocks him for this. John has a fight
with Joan and knocks her out. He tries, unsuccessfully, to bring her around. After half an hour, thinking
Joan is dead, he puts her body in a river. Joan is still alive but drowns.