Silence During This Lecture
Turn off Your Mobile
Take Notes
If You Wish to Ask a Question
Please Raise Your Hand
PRECIS NOTES WILL BE CHECKED
At the start of the Lecture
1
Criminal Law elements …
Preparing for Law A2 by Dr Peter Jepson
See Chapters 1 to 3 of ‘Criminal Law for A2’
by Jacqueline Martin (2006)
You should read and précis the textbook prior
to this presentation …
2
If I crash my Smart Car, while in a rage, I
could face two consequences …
I could face a civil claim – in Tort – from any
person whom I injure as a result of a negligent act
or omission
And, I could face criminal charges - instigated
by the Police and brought by the CPS - for
dangerous driving or some other motoring
offence.
3
Criminal Law Is Concerned
With Offences Against the
STATE …
In a criminal case the prosecution
must prove BEYOND ALL
REASONABLE DOUBT
[Woolmington v DPP [1935]]
that D is responsible for the
criminal action …
4
This could result in a
Magistrate or Jury mode
of Trial…
Who decides guilt if the case is
determined in a Magistrates
Court?
Who decides guilt if the case is
determined in the Crown Court?
Who passes sentence?
5
Majority of Crimes Consist of Two
Elements …
The Actus Reus – or guilty act
The Mens Rea - or guilty mind
6
The Actus Reus
• The physical element of a crime
• A wrongful or prohibited action or
failure to act (omission).
• Common Law and ??????? Law crimes).
• In both cases the definitions will include
a specific reference to the actus reus
required for the offence …
7
The Actus Reus
• This may also refer to the act and the
consequences …
• e.g. an assault or battery resulting in
actual bodily harm (abh)
• In this example, the result should be
considered as well as the act
• Also, the act MUST cause the result.
8
The Actus Reus
• To summarise some key principles – In
determining the actus reus you need to consider …
– The voluntary act or omission
– Which causes
– The result and,
– (in some cases) the circumstances surrounding
the event.
9
Conduct - Act or Omission
•
•
Either a positive act or an omission
could amount to the actus reus
Thus, for the actus reus to be fulfilled
…
10
Conduct - Act or Omission
1.
D needs to voluntarily commit a
positive action which results in the
prohibited consequences; or
2. D fails to carry out an action which
they are obliged to do resulting in the
prohibited consequences.
11
A Failure to Act …
• R v Gibbins and Proctor (1918) –
starving a child to death.
• R v Pittwood (1902) contractual duty
and omission to act.
• R v Miller (1983) – D created a danger
and then failed to remove the harm.
• R v Naughton (2001) – a duty to act
and a failure to do so.
Students to explain each of the above cases
12
Voluntary Act
• It is said that an act must be voluntary
• When it is an act or omission, D’s
behaviour must be as a result of an
action over which D has some control as opposed to a reflex action with no
control (e.g. stung by bees – or
sleepwalking).
• Defence of automatism cover this (done
later in A2 proper).
13
Causation
• In simple terms this can be illustrated
by D stabbing V who is placed on a life
support machine. If Doctors conclude
they might as well turn of the machine
it is clear that D caused the death.
• However, if the cleaner accidentally
unplugs the life support machine then
the cleaner (and not D) could be liable.
14
When considering the issue of
causation the courts look for …
• Causation in fact: and
• Causation in law.
15
Causation in fact –
applying the ‘but for’
test …
Not governed by statute law –
common law only.
• R v Pagett (1993)
• R v White (1910)
What – if anything – is a common theme
in these two cases?
16
Causation in Law – Common law
only
• Relates to whether or not the
consequence was caused by the
accused – or,
• Whether the accused made a
significant contribution to it.
17
Causation in Law
• Example: If D hits V on the head and
fractures her skull – and she dies. D has
caused V’s death.
• If, on the other hand V had recovered –
leaves hospital and walks straight under
a bus and dies – D cannot be said to
have killed V.
18
Causation in Law –
the chain of causation
• See facts of R v Smith (1959)
• Compare them to … R v Blaue (1975)
and R v Cheshire (1991) - did the
intervening events break the chain of
causation?
• Switching off a life support machine – R
v Malcharek (1981)
19
Mens rea – guilty mind
• Two basic categories …
• (1) intention.
• (2) recklessness.
20
Mens rea – guilty mind
Each particular offence has its own actus reus
and mens rea – in other words they vary from
offence to offence.
In statutory offences the mens rea is defined by
terms such as knowingly, maliciously,
intentionally, wilfully, recklessly etc.
21
Specific Intention
• For some offences it is necessary to
have a specific intent …
• Examples of Murder or causing GBH …
22
Specific Intention
• In R v Mohan (1976) it was said that
Specific Intention is ‘a decision to bring
about, as far as it lies within D’s power,
no matter whether the accused desired
the consequence of his act or not.’
• This can probably best be illustrated by
the case of R v Moloney [1985] intent
to commit GBH or murder
23
Practical Task
• In class, turn to page 218 of ‘AS Law’
(Charman, Vanstone and Sherratt) read
sections 18 and 20 of Offences Against
the Person Act 1861.
• Which parts are the Actus Reus and
which are Mens Rea?
Students should photocopy
page 218 before the Lecture.
24
Oblique Intent
• When a person desired the result of
their actions they are said to have direct
intent.
• Where a person does not intend the
consequences of death – but they
happen – can they be liable? Suppose
the odds of death are remote – see R v
Hancock and Shankland [1986]
25
Oblique Intent
A recent House of Lords case has laid
down guidelines in relation to oblique
intent. See the case of R v Woollin
[1998]
Break into Law Firms and discuss –
What does Diana Roe mean (at page 27)
when she says that Woollin has made the
law more certain in some ways - while it
leaves issues unresolved? Also, do the
activity on page 27 of J Martin!
26
Recklessness
• Historically there have been two types
of recklessness – Caldwell (often
termed objective) and Cunningham
(often termed subjective).
27
Objective Recklessness
• Based on the case of MPC v Caldwell
[1982] .
• … the risk is so obvious that any
reasonable person would have seen it.
The case of Elliott v C (a minor) 1983
highlights a basic problem with this
approach. What if D is unable to see
the risk due to special characteristics?
28
What is the current law?
• What is the current law on
recklessness? - research and then
present to the entire class the case(s)
which explain the current law on
recklessness.
29
Restrictive use of Objective
recklessness
In 2003 the House of Lords (R v
G and another) decided that only
‘Cunningham Recklessness’ now
applies.
Note: The Law may now be clarified.
However, for examination purposes it is
still likely to be an issue for debate/exams
30
Transferred Malice
• Suppose I purposely throw this duster
at X, and I miss him because he ducks
(so he does not get hit), hitting Y
instead.
• What offences – if any – have been
committed?
31
Coincidence of actus reus
and mens rea
• Unless it is a strict liability offence the
actus reus and mens rea are both
needed.
• But need they exist at the same time?
• Consider the case of Fagan v MPC
(1969)
32