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1 Criminal Law General Elements of Criminal Liability A guilty act (Actus Reus) + A guilty mind (Mens Rea) - Defense (Absence of a relevant defense) = Criminal liability The terms AR and MR are simply use for labels used to determine or describe the elements of any crime and have no literal meaning in them. Neither term is prescriptive. For instance AR is not just the commission of an offence but can also be an omission to act or a state of affairs. In the case of MR in some offences only intention will do whereas for others recklessness will be sufficient. If you can establish AR and MR but the defendant can rely on some justifiable excuse for his conduct then the defense if proved and depending on the type of defense can alter the outcome of criminal liability. Actus Reus Page 1 of 63 Each crime must be looked at individually to determine what must be proved to establish AR. In the case of a common law crime (such as murder) the definition of AR is found in the decisions of the court whereas for a statutory crime (such as theft or sexual assault) the element of the AR is found in the relevant Act of Parliament. Simply put, everything other than MR is AR. Theft Act 1968 A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; and thief and steal shall be construed accordingly. Conduct Crimes and Result Crimes A conduct crime prohibits the conduct itself regardless of the consequence (Theft) where as a result crime prohibits a particular consequence which flows from the conduct (murder). Criminal Law Page 1

2 Hill v Baxter (1958) The significance of this case was that it recognized the swarm of bees scenario. In other words that it is acceptable that an external factor may cause the defendant to act involuntarily. The law recognizes that there might be involuntariness resulting from an inability to control other mechanisms such as the car breaks or steering. In the case of Burns v Bidder (1967) accepts this argument except for where the defendant knew or ought to have known about the technical failure in which case the defendant s conduct is voluntary. Automatism If the brain is not in sufficient control of the defendant s actions the defendant s conduct is involuntary and he becomes an automaton and his defense is automatism which if he succeeds may result in a complete acquittal. The case of R v Quick (1973) established that a diabetic coma as an accepted form of automatism. Omission Generally there is no liability for an omission to act because it would be impractical to impose such a liability. However there are circumstances recognized by the law which creates a duty to act and failing to do so or an omission may give rise to criminal liability. When is a defendant under a duty to act? A positive duty to act exists in the following situation meaning that an omission to act in these circumstances constitutes the AR of an offence. Page 3 of Special relationships Where a special relationship exists between the defendant and the victim (parent & child close family member or guardian) there is a positive duty to act & a failure to do so may result in criminal liability. R v Gibbins and Proctor (1918) the D was the biological father of a child and together with the second defendant who was his girlfriend took the child in to their care. They failed to feed and care for the child and the child eventually died of neglect. The court held that they were both liable for the death of the child by virtue of special relationship. 2. Voluntary assumption of responsibility Someone who voluntarily assumes responsibility for another person also assumes a positive duty to act reasonably for the general welfare of that person and maybe liable for omissions that proves fatal. R v Stone and Dobinson (1977) a couple had taken in an elderly aunt to live with them. They omitted to care for her by not feeding her properly and failing to call the doctor when she was seriously ill resulting in her death. Both defendants were held to be liable for failing to act under a special duty of care created by voluntary assumption of responsibility. Criminal Law Page 3

3 3. Duty under a contract A person may be under a positive duty to act because he has obligations under a contract towards a 3 rd party. R v Pittwood(1902) D a level crossing keeper negligently left open the crossing gate. A man s cart was struck by a train and he died. The court held that the defendant owed a contractual duty of care to all uses of the crossing line and was therefore guilty by omission. 4. Statutory duty to act In some circumstances statute makes it a criminal offence to fail or omit to do something. S170 of the Road Traffic Act 1988 make it an offence if there is a road traffic accident and either party fails to give their insurance and personal details to each other or the police within 24hrs of the accident occurred. 5. Creating a dangerous situation If the defendant acted positively even innocently to create a situation which may cause damage or injury and later became aware of the danger that he has created he has a duty to minimize that danger. R v Miller (1983) - Defendant was living illegally in a house. He was smoking a cigarette and fell asleep while it was still lit setting the room on fire. He walkup to find the room alight and left the building without calling the fire brigade or even trying to put the fire itself. Page 4 of 63 The court held he was guilty by omission for failing to minimize the danger once he had realized that it existed. 6. A duty created by holding public office Where the defendant holds public office such as a policeman or member of the armed forces he has a positive duty to act. R v Dytham (1979) the D was a police officer who was on duty 30 yards away from an entrance to a night club. He witnessed the V being attract and killed by the D. he failed to intervene or to call an ambulance. Held that he was liable by omission due to the duty that existed in him holding public office. State of affairs cases Whiles most offences require voluntary conduct as discussed above there are situations that constitute a state of affairs which also satisfy AR. Winzar v CC of Kent (1983) - The defendant had been admitted to hospital on a stretcher. Upon examination he was found to be drunk and was told to leave. Later he was found in a corridor of the hospital and the police were called to remove him. The police officers took the defendant outside onto Criminal Law Page 4

4 Lawful excuse for BCD There are some circumstances which the statute gives the D a lawful excuse to causing basic criminal damage. These are contained in S5 (2) of the 1971 Act as being the flowing; 1. If at the time of the act the D believed that the person to whom the property belongs would have consented to his act. 2. If at the time he destroyed or damaged the property he believed that (a) the property was in immediate need of protection (b) that the means of protection adopted was reasonable. Aggravated Criminal Damage ACD is a statutory offence under S1 (2) of the CDA 1971; A person who without lawful excuse destroys or damages any property belonging to another or himself intending to destroy or damage any property or being reckless as to whether any property was destroyed or damaged & intending by the destruction or damage to endanger the life of another or being reckless as to whether the life of another would thereby be endangered, shall be guilty of an offence. AR MR Page 19 of Destroy or damage same as in BCD 2. Property same as BCD 3. Belonging to HIMSELF or another slight deviation from AR of BCD 2 elements, namely 1. Intending or recklessness as to destruction or damage same as BCD 2. Intention or recklessness as to endangering life of another** the main difference between BCD and ACD Intention or recklessness as to endangering life of another Webster (1995) the D fired shots at the V who was standing behind a glass window. The court held that the D was reckless as to endangering the life of the V by the bullets. Warwick (1995) the D was involved in a car chase with the police. He threw a brick at the windscreen of the police vehicle and was held to be guilty of ACD as he was reckless as to endangering life. Criminal Law Page 19

5 (b) (c) (1A) (a) (b) (c) substantially impaired D's ability to do one or more of the things mentioned in subsection (1A), and provides an explanation for D's acts and omissions in doing or being a party to the killing. Those things are to understand the nature of D's conduct; to form a rational judgment; to exercise self-control. 1. Abnormality of mind It s a state of mind which the reasonable man would consider abnormal. It is defined very widely and covers a number of conditions. Byrne (1960) D strangled his V and then mutilated her body. He claimed he was subject to a perverse desire to do so and that he has had this desire since he was a child. The court of Appeal stated that his conviction for murder could be reduced to MSL as the abnormality of mind was a state of mind so different from that of ordinary human being that the reasonable man would term it abnormal. 2. Arising from a recognized medical condition Is a condition that is formally recognized by the medical profession and covers the following; 1. A condition of arrested or retarded development of mind 2. Any inherent causes. That is a condition which is of a medical nature which developed naturally in the D s body. 3. Disease or injury Page 23 of 63 Consumption of alcohol or drugs does not satisfy the elements of diminished responsibility unless the consumption of these substances was so great as to damage the defendant s mind. This principle is established in the cases of; Gittens (1984) Dietschmann (2003) Recognised medical conditions include; Depression Psychopathy Criminal Law Page 23

6 Assault Occasioning Actual Bodily Harm S47 Is a statutory offence under S.47 of the Offences Against the Person Act The elements are entirely the same as the AR and MR for assault or battery with the additional element that actual bodily harm will result. There is no requirement to prove any further MR beyond that point. Hence, all you have to do is 1. Prove the AR and MR of assault or batter. 2. Prove that the assault or batter resulted in actual bodily harm to the V. Elements of actual bodily harm the case of Chan Fook (1994) states the following: Harm requires hurt of injury. Actual requires that the harm is not deminimis. Bodily includes skin, flesh bones, nervous system and brain which means that can be either physical or psychiatric injury. Physical injury - Minor broken bones, bruises, and wounds would all satisfy the requirements for ABH as established in the case of T v DPP. Page 34 of 63 Cutting hair or nails also qualifies as ABH DPP v Smith (2006). Psychiatric injury Chan Fook (1994) establish that injury might be physical and also includes psychiatric injury. Psychiatric injury does not include mere emotions such as fear, distress or panic. Occasioning means causation & the general rules of causation apply. Unlawful and Malicious Wounding or Infliction of Grievous Bodily Harm S20 S.20 creates two types of offences; 1. Wounding 2. Inflicting GBH Criminal Law Page 34

7 2. Have no reasonable belief that V consents Touching Under S. 79(8) includes the following; 1. Touching with any part of the body 2. With anything else 3. Through anything 4. And in particular includes touching amounting to penetration R v H (2005) - where the court held that the touching of an individual s clothing was sufficient to amount to touching for the purposes for the offence under S3 of the Sexual Offences Act. R v George (1956) - where the court held that the D was not liable for indecent assault where he attempted to remove the V s shoe even though the D found the act sexually gratifying as there was no indecency experienced by the V. D is 18 or over, V is under 16 S.9 of the 2003 Act states the following elements; AR MR Page 39 of D (male or female) who is 18 or over 2. D touches V (who may be male or female) 3. V is under The touching is sexual 1. D intends to touch 2. He has no reasonable belief that the V is 16 or over 3. Belief as to consent is irrelevant D is 18 or over V is under 13 Strict liability offence. MR is irrelevant. Criminal Law Page 39

8 INCHOATE OFFENCES Inchoate offence means effectively, an offence which has not been completed, but if carried out to its conclusion, would be a criminal offence. There are two main types; 1. Conspiracy 2. Attempt CONSPIRACY Take place where 2 or more people come to an agreement that they will engage in conduct which amounts to a criminal offence. What goes to the heart of conspiracy is agreement. The offence of conspiracy is complete as soon as the agreement is made though nothing is done in pursuit of the agreement. Types of conspiracy we deal with Page 49 of 63 Agreements to commit crimes known as statutory conspiracy governed by the Criminal Law Act Agreement in conspiracy All forms of conspiracy require agreement between 2 or more persons. S.2 (2) of the 1977 Act provides that D cannot be guilty of the only other person with whom he agrees is; a) His spouse b) A child under the age of 10 c) The intended victim An agreement must consist of a firm decision by the parties that the agreed conduct will take place and proof of this agreement may be inferred from their circumstances and conduct. Criminal Law Page 49

9 Whybrow (1951) D could not be held to be guilty of attempted murder where he intended to cause injury. If the injury led to death, then you may consider unlawful act manslaughter, but attempted murder was off the table. This case establish that in order to satisfy the elements of attempt the D must be proven to have the intention for the actual prohibited consequence. Easom (1971) v left her hand bag temporary on her seat in a cinema. The D who sat next to her decided to rummage through her bag in the hope of taking something only if it is of value. The question for the court was based on the fact that he only had conditional intention what was his liability for attempt? The court held that conditional intention can progress to intention depending on the circumstances. Impossibility on inchoate offences What happens to liability if the completion of the offence would prove to be impossible? I.e. it would appear to be impossible to the objective observer? Happens in 1 or more of 3 situations 1. Outside intervention or incompetence by D For instance D is interrupted by police or others or trips and falls over. This is never a barrier to conviction for attempt. Page 54 of Physical impossibility D cannot complete the crime because something crucial is missing to complete the commission. E.g. trying to steal the V s wallet to find his pocket is empty. Trying to injury someone who is not where he thought etc. Again, not a barrier to conviction 3. Legal impossibility D does everything which he set out to do and at the time he does it appears that was not committing an offence at all. E.g. is D is a pedophile and wants to have intercourse believing the V to be below the age of 16 and he finds she is actually 18, then there is no sexual offence. Haughton vs. Smith (1973) D though he was handling stolen goods when actually he was not, the goods were legal merchandise. Not an excuse. Impossibility and attempt S. 1(2) of the Criminal Attempts Act 1981 as follows A person may be guilty of attempting to commit an offence to which this section applies even though the facts are such that the commission of the offence is impossible. Criminal Law Page 54

10 2. Conduct by D amounts to such an assumption Happens in more than one way, such as 1. D takes away V s property 2. Where D s conduct is designed to induce X to transfer property away from V to D R v Governor of Pentonville Prison ex parte Osman in which D gave instructions to X (a bank) to transfer money from V s account to the account of D s accomplice. Here the assumption of the right was when D issued an instruction to the bank. Effect of consent on appropriation Case of Hinks (2000) established that consent is completely irrelevant and does not prevent appropriation taking place, and this applies to all instances of consent. Hinks (2000) D was the career of a 53-year-old man of low intelligence. She has persuaded him to make gifts to her totaling 60,000. The court held that appropriation is a neutral world which simply means assumption of any right by the owner and whether appropriation has occurred in a criminal sense Page 58 of 63 depends on the circumstances. Belonging to another Defined in S.5 Belonging to any person having possession or control of it or having proprietary right or interest in it (hence, as established in Turner No2 D can steal his own property) Mens Rea of Theft Dishonesty S.2 of the Theft Act 1968 provides (1) A person s appropriation of property belonging to another is not to be regarded as dishonest Criminal Law Page 58