1) Issues of Criminal Liability: Actus Reus, Omissions, Causation, Mens

Rea, Criminal Liability and Offences of Strict Liability Actus Reus and Omissions

The Actus Reus is the physical element of a crime

It may be an act or a failure to act (an omission)

It must be voluntary on the part of the defendant

For some crimes the Actus Reus must result in a consequence o E.g. Assault occasioning Actual Bodily Harm

Normal Rule for omissions is that this cannot make a person guilty of an offence

No Good Samaritan Law in this country

6 Exceptions where there is a duty to act: 1. A statutory duty 2. A contractual duty

R v Pittwood (1902) A railway crossing keeper failed to shut the gates resulting in a person being struck by a train

3. A duty because of a relationship R v Gibbins and Proctor (1918) D and Partner responsible for Ds children. Singled out one girl and starved her to death.

4. A duty taken on voluntarily R v Stone and Dobinson (1977) - Stones sister came to live with Ds. Dobinson occasionally helped to wash and feed the V, she died of malnutrition.

5. A duty through ones official position R v Dytham (1979) - D was a police officer who watched a man being kicked to death before going off duty and doing nothing to help.

6. A duty which arises because the D has set a chain of events in motion

R v Miller (1983) - D was squatting, slept with a cigarette, set fire to mattress. He moved to another room without getting help. Charged with Arson.

AO2 Points on the Law of Omissions:

Should there be a Good Samaritan law and wider liability? o Yes: Modern, moral responsibilities o No: Could do more harm than good, could be abused to

commit crime

There are difficulties in deciding when a duty does and does not exist

o Decided by judge, if there is sufficient evidence, and jury, if it exists and has been broken

o Makes the law able to expand for new situations o Creates uncertainty in the law

Should a person really be liable for failure to act when they have assumed a duty?

o Is it harsh that someone who accepts someone into their home is then responsible?

o Adults generally held to be responsible for their own lives

o What if the adult is vulnerable?

Is there a justification for the statutory imposition of duties? o Public Policy Reasons

Causation

Where a consequence has to be proved, the prosecution must show that

o It was the factual cause o It was the legal cause o There was no nouvus actus interveniens

Factual Causation may be defined using the but for test: Would the defendant have been harmed but for the defendants actions? (Yes, Not Guilty, No, Guilty)

R v Pagett (1983) D used pregnant girlfriend as human shield during police gunfight. But for his actions she wouldnt have died guilty.

Legal Causation is used where more than act contributes to the consequence. The D is guilty if his act is more than a slight or trifling link

R v Kimsey (1996) D lost control of car in a high speed car race with a friend. Other driver died. Act wasnt substantial cause but more than minimal.

What constitutes a break in the chain of causation?

The Thin Skull Rule: The D must take the victim as he finds him: even if the V has a peculiarity which makes their injury more serious, the D will be liable for that more serious injury (no n.a.i)

R v Blaue (1975) V stabbed and needed a blood transfusion to save her life but was a Jehovahs Witness. Refused, died, D convicted of murder.

Medical Treatment: Unlikely to break the chain of causation unless it is so independent of the Ds act as to make it irrelevant (possible n.a.i)

R v Smith (1959) D stabbed V with a bayonet. On the way to hospital he was dropped, and at the medical centre was given wholly inappropriate treatment to his wound. It substantially affected his chances of survival but wound was substantial & so D was liable for his death. R v Jordan (1956) The V had been stabbed in the stomach. His wounds were healing well, but the Dr prescribed a large dose of a drug to which he was allergic

(without checking notes) and he died. The wound was no longer a significant cause for his death.

Life Support Machines do not count as a n.i.a: R v Malcharek (1981) D stabbed his wife; she was shown to be brain dead and the life support was switched off. D was charged with murder: turning off a life support was not held to be an n.i.a.

Fright or flight, Victims own act may be an n.i.a if it is foreseeable:

R v Roberts (1971) V jumped from a car to avoid the Ds sexual advances and was injured. D was liable for her injuries. R v Williams (1992) Hitchhiker jumped from a car to avoid being stolen from. Argued act hadnt been foreseeable and D was not guilty.

AO2 Points on the Law on Causation

What is meant by more than a slight and trifling link? o Vague and Difficult to define o Different standards applied to different cases

Should D really be liable where the thin skull rule applies? o Harsh o Public Policy

Mens Rea

Mens Rea is the mental element of an offence

All offences have their own mens rea except those of strict or absolute liability

There are different levels of mens rea: 1. Intention

a. Direct

D intends to commit a crime for that consequence to occur.

b. Oblique

Here the D intends one thing but the consequence is another.

What degree of probability is required before an undesired consequence becomes an intended one?

R v Maloney (1985) D and Step Father were drunk. Had been messing around with a shotgun and step father killed. Intention could be inferred if death was a natural consequence of the Ds action and the D foresaw that consequence. R v Hancock and Shankland (1986) Ds were striking miners. Tried to prevent another miner from going to work by pushing concrete off a bridge. Killed the driver. Rejected the Maloney approach and said the matter was for the jury. R v Nedrick (1986) D had a grudge against a woman. Set her house alight and a child died in the fire. Death, GBH must be a virtual certainty. R v Woollin (1998) D threw his 3 month old baby towards a pram, baby died. Repeated the Nedrick judgement almost verbatim.

2. Recklessness.

Recklessness is a lower level of mens rea than intention

It is based on the subjective approach: R v Cunningham (1957) D tore a gas meter from a wall to steal money from it.

The resulting gas leak caused a next door neighbour some harm. N.G He hadnt intended to cause the harm and hadnt taken a risk he knew about

This version of recklessness was ruled not to exist from 1981 2003, when another form took its place, based on the objective approach:

Metropolitan Policy Commissioner v Caldwell (1981) D got very drunk and decided to set fire to a hotel, owned by someone whom he had a grudge against. D claimed he was so drunk he hadnt realised people might be injured. Based on how what reasonable person would do.

This version of recklessness was held to be very unfair as it did not take into consideration any peculiarities of the D. The matter was finally settled in 2003, with a return to the subjective approach:

R v G and Another (2003) 2 young boys set fire to some newspapers. The fire spread causing significant damage to some nearby shops. The HoL overruled Caldwell.

3. Negligence

A failure to meet the standards of the reasonable man

Only mainstream offence for which it is used is manslaughter, for which there must be a very high degree of negligence (see R v Adomako (1994)

4. Knowledge

Stated in some statutes as the necessary mens rea

D must have knowledge of certain facts to have the MR Sweet v Parsley (1969) D let out a cottage to some students who smoked cannabis there. She was arrested for managing a property used for such things, found not guilty because she hadnt known about it.

5. Transferred Malice (not an element of Mens Rea, but worth discussing)

The idea that the D may be guilty if he intends to commit a similar crime but against a different V:

R v Latimer (1886) D aimed a blow at a man with his belt. The belt hit the woman stood next to the intended target. Guilty of assault even though hed intended to hit someone else.

However the actus reus must be the same for both the intended crime and eventual crime:

R v Pembilton (1874) D threw a stone. Intended for it to hit people, it actually broke a window. Actus Reus wasnt interchangeable, not guilty.

AO2 Points on the Law on Mens Rea

[With respect to Oblique Intention] the difficulties the courts have faced in deciding foresight of consequences has resulted in several layers of confusing case law and no definitive result

Nedrick test favours the D as it is an extremely high standard of proof

Forming Criminal Liability

For an offence to take place, the actus reus and mens rea must coincide in time.

Thabo Meli v R (1954) Ds attacked a man and, believing theyd killed him, pushed him off a cliff. In fact he was still alive but died from exposure when unconscious at the bottom of the cliff. The Ds were found guilty as in a series of acts the MR and AR were found to have mixed.

When there is a continuing act for the Mens Rea and at some point the Mens Rea exists during that time, the two coincide:

Fagan v Metropolitan Police Commissioner (1986) D was told by a police officer to park in a particular place and accidentally drove onto the policemans foot. When the policeman asked him to remove it, D left it there for several minutes. His decision not to remove the car was the moment of the Mens Reas coincidence with the AR.

Absolute and Strict Liability

These are offences that do not require the Mens Rea for at least part of the Actus Reus

Nearly all strict liability offences must prove that the act was voluntary. Those that dont are offences of Absolute Liability:

R v Larsonneur (1993) D was ordered to leave the UK as a foreign alien. She went to Eire but was sent back here and found guilty of unlawfully being in the country despite having been forced to do so.

All offences start out with a presumption of mens rea. Where the courts then decide it isnt, for at least part of the actus reus, the offence becomes one of Strict Liability:

R v Prince (1875) D took an unmarried girl under 16 out of her fathers possession, but genuinely believed she was 18. M.R for the knowledge of age section of the offence wasnt required. Guilty.

There must be no defence of due diligence available: Harrow LBC v Shah and Shah (1999) Ds owned a newsagent. Frequently reminded staff to check age when selling lottery tickets. 13 year old slipped through net, guilty despite making every effort to avoid situation as no defence of DD in act.

There must be no defence of mistake available Cundy v Le Cocq (1884) Ds pub sold alcohol to a drunk person. D hadnt acted drunk or shown any signs of intoxication and no one had realised but no defence of M in act so guilty.

Approximately half of all statutory offences of strict liability

What happens in an act is silent to Mens Rea? o The Gammon Tests are used (Gammon (Hong Kong) Ltd

v Attorney General of Hong Kong): 1. There is always an initial presumption of MR 2. The presumption may be displaced if it is the

clear or necessary implication of the statute... 3. ...or if the statute deals with an issue of social

concern 4. The presumption is particularly strong if the

offence is truly criminal in nature 5. S/L should only apply if it will help to enforce

the law by encouraging greater vigilance AO2 Points on the Law of Strict and Absolute Liability

Absolute Liability is extremely harsh, imposing liability on people who arent really blameworthy

Parliament doesnt seem to have a sensible pattern of when they do or do not apply the defences of due diligence or mistake in legislation

Strict Liability may be imposed where the D wasnt even aware of a risk

Does it really improve standards? If precautions against a risk are more expensive than a possible fine, will the precautions really be taken?

Strict Liability may be imposed even where there is a severe social stigma, for example

o R v G (2008) D was a 15 year old boy who had consensual sex with a 12 year old girl who admitted that she had told him she was also 15. Guilty of statutory rape and put on the sexual offenders register.