LECTURE 2 BASIC ELEMENTS OF CRIMINAL LIABILITY

LECTURE 2 BASIC ELEMENTS OF CRIMINAL LIABILITY Criminal liability requires a concurrence, or unity, of two general criteria: (a) an act or physical element, known as the actus reus; and (b) a certain mental state or intent, known as the mens rea. In addition, under the general principles of criminal responsibility developed from the common law tradition, the physical act must be voluntary and cause social harm. Criminal responsibility or liability, therefore, has five elements: 1. The actus reus. 2. The mens rea. 3. A unity of actus reus and mens rea. 4. Causation. 5. Resulting social harm. ACTUS REUS The actus reus in criminal law consists of all elements of a crime other than the state of mind of the defendant. In particular, actus reus may consist of: conduct, result, a state of affairs or an omission. 1. Conduct - the conduct itself might be criminal in other words the actus reus is the prohibited conduct itself. Eg. the conduct of lying under oath represents the actus reus of perjury. It does not matter that whether the lie is believed or if had any effect on the outcome of the case, the actus reus of the crime is complete upon the conduct. Examples of conduct crimes: Perjury Theft Making off without payment Rape Possession of drugs or a firearm 2. Result - The actus reus may relate to the result of the act or omission of the defendant. The conduct itself may not be criminal, but the result of the conduct may be in other 1

words, the actus reus of the offence requires proof that the conduct caused a prohibited result or consequence. Eg it is not a crime to throw a stone, but if it hits a person or smashes a window it could amount to a crime. Causation must be established in all result crimes. Examples of result crimes: Assault Battery Wounding and Grievous Bodily Harm Murder & Manslaughter Criminal damage 3. "State Of Affairs" Cases - One group of cases which cannot be discussed in terms of voluntary acts are often referred to as the "state of affairs" cases. These crimes are defined not in the sense of the defendant doing a positive act but consisting in the defendant "being found", "being in possession" or "being in charge" etc. In some such cases all the prosecution needs to prove are the existence of the factual circumstances which constitute the crime - the existence of the state of affairs. See: Duck v Peacock [1949] 1 All ER 318 King's Bench Division - The defendant was charged with the offence of being drunk in charge of a vehicle. At the time of his arrest he was sleeping in the car having been out for the evening drinking. The Magistrate did not impose a disqualification but on a case stated appeal, a disqualification was ordered. Lord Goddard CJ 'This is a question, not of driving, but of being in charge of a car. If what is suggested here were a special reason, it would mean that a man who had taken too much to drink so that he was unfit to manage the car or be in charge of it could escape the penalty of disqualification merely by stopping and going to sleep in the car. The court is not going to give any countenance to such a reason as that. In my opinion, on the facts found by the magistrate there was no ground for saying that any special reason existed for not imposing the disqualification which Parliament has decreed shall otherwise be imposed. Therefore, this case must be remitted to the magistrate with an intimation that we think he was wrong in law, and the respondent must be disqualified for the statutory period. R v Larsonneur (1933) 24 Cr App R 74 - The defendant, a French woman, was deported against her will, from Ireland to England, by the Irish authorities. Upon her arrival she was immediately charged with the offence of 'being' an illegal alien. Her conviction was upheld despite the fact that she had not voluntarily come to England. 2

DUTY ARISING FROM STATUTE Liability for failing to act will be imposed where the defendant can be shown to have been under a statutory duty to take positive action. Greener v DPP (1996) The Times, Feb 15 1996 - The defendant was the owner of a young, powerful Staffordshire Bull Terrier. He had left the dog chained in an enclosure in his back garden. The dog had strained and bent the clip releasing its chain. It had escaped from the enclosure and entered a nearby garden where it bit the face of a young child. Section 3(3) of the Dangerous Dogs Act 1991 provides that if the owner of a dog allows it to enter a place which is not a public place but where it is not permitted to be and while it is there it injures any person, he is guilty of an offence. It was held by the Divisional Court that an offence under s3(3) could be committed by omission. The word "allows" included taking and omitting to take a positive step. In the present case the defendant had failed to take adequate precautions. Similar precautions had been taken in the past but they were obviously inadequate as the fastening was not good enough and the enclosure not secure. DUTY ARISING FROM A CONTRACT Where a person is under a positive duty to act because of his obligations under a contract, his failure to perform the contractual duty in question can form the basis of criminal liability. See: R v Pittwood [1902] TLR 37 - The defendant was employed by a railway company to man the gate at a level crossing. The defendant lifted the gate to allow a cart to pass and then went off to lunch failing to put it back down. A train later collided with a horse and cart killing the train driver. The defendant was liable for the death of the train driver as it was his contractual duty to close the gate. OMISSIONS Can a person be held criminally responsible for a failure to act? The general rule is that there can be no liability for failing to act, unless at the time of the failure to act the defendant was under a legal duty to take positive action: The actus reus can be committed by an omission where there exists a duty imposed by law. There are three situations in which a duty may be imposed by law. These are where the defendant creates a dangerous situation, where there has been a voluntary assumption of responsibility and misconduct in a public office. Additionally an omission may be classified as part of a continuing act. 3

Voluntary Assumption Of Responsibility/Reliance There is a common law duty of care where there is a relationship of reliance between defendant and victim. Thus if someone voluntarily assumes responsibility for another person then they also assume the positive duty to act for the general welfare of that person and may be liable for omissions which prove fatal. R v Stone & Dobinson [1977] 1 QB 354 - Ted Stone was 67, totally blind, partially deaf had no appreciable sense of smell and was of low intelligence. He lived with his housekeeper and mistress of 8 years, Gwendolyn Dobinson aged 43 who was described as ineffectual and inadequate. Ted's sister Fanny came to live with them. She had previously lived with another sister but had fallen out with her. She had mental problems and was suffering from anorexia nervosa. Ted and Gwendolyn took her in and agreed to look after her. However, Fanny's condition deteriorated and she was found dead in her bed in appalling conditions. Stone and Dobinson were found liable for her death as they had assumed a responsibility to her by taking her in. They failed to look after her and ensure she got the medical help she needed. Duty Due To Defendant's Prior Conduct If the defendant accidentally commits an act that causes harm, and subsequently becomes aware of the danger he has created, there arises a duty to act reasonably to avert that danger. R v Miller [1983] 2 AC 161 House of Lords -The defendant had been out drinking for the evening. He went back to the house he had been staying in and fell asleep on a mattress with a lighted cigarette in his hand. He awoke and saw that the cigarette had started a small fire. Upon seeing the fire, he then got up and went to another room and went back to sleep. At his trial, the prosecution did not rely on the acts of the defendant in falling asleep with a lighted cigarette as being reckless, but relied solely on the grounds that upon becoming aware of the fire he failed to take steps to put the fire out or call the fire brigade. Held: The defendant had created a dangerous situation and owed a duty to call the fire brigade upon becoming aware of the fire. He was therefore liable for his omission to do so. 4

Misconduct In A Public Office R v Dytham [1979] QB 722 - The defendant was a police officer. He stood by whilst a bouncer kicked a man to death. He was charged with the offence of misconduct in a public officer. He argued that the offence could not be committed by an omission as it specifically requires misconduct. Held: The offence of misconduct in a public offence can be committed by an omission. The defendant's conviction was upheld. An Omission Can Also Be Classed As Part Of A Continuing Act: Fagan v MPC [1969] 1 QB 439 - A policeman was directing the defendant to park his car. The defendant accidentally drove onto the policeman's foot. The policeman shouted at him to get off. The defendant refused to move. The defendant argued at the time of the actus reus, the driving onto the foot, he lacked the mens rea of any offence since it was purely accidental. When he formed the mens rea, he lacked the actus reus as he did nothing. Held: The driving on to the foot and remaining there was part of a continuing act. The Actus Reus Must Be Voluntary The accused's conduct must be "voluntary" or "freely willed" if he is to incur liability. It may be involuntary for a variety of reasons: Automatism Automatism occurs where the defendant performs a physical act but is unaware of what he is doing, or is not in control of his actions, because of some external factor. Reflex Actions Sometimes people can respond to something with a spontaneous reflex action over which they have no control. Although slightly different, this is sometimes classed as a form of automatism. Physical Force The conduct may be involuntary in that it is physically forced by someone else, in which case there will be no actus reus. 5

CAUSATION When the definition of an actus reus requires the occurrence of certain consequences, the prosecution must prove that it was the defendant's conduct which caused those consequences to occur. For example, in murder the prosecution must prove that the victim died; in section 18 of the offences Against the Person Act 1861 that the victim was wounded or caused grievous bodily harm; and in criminal damage that the property was destroyed or damaged. There are two types of causation: (a) Causation in Fact, for which the "But For" Test is used: R v White [1910] 2 KB 124 - The defendant put some poison in his mother's milk with the intention of killing her. The mother took a few sips and went to sleep and never woke up. Medical reports revealed that she died from a heart attack and not the poison. The defendant was not liable for her murder as his act of poisoning the milk was not the cause of death. He was liable for attempt. This case established the 'but for' test. ie would the result have occurred but for the actions of the defendant? If the answer is yes the defendant is not liable. (b) Causation in Law, for which, for example in homicide cases, the defendant's act must be the "operating and substantial cause of death". MEN'S REA Actus reus makes up only one part of the criminal culpability requirement. Only in rare circumstances can someone be convicted of a crime without both the physical act and the guilty mind. (Statutory rape, for example, is a strict liability crime in which only the physical act needs to be proved to obtain a conviction.) The guilty mind is known as mens rea; it is also called intent or culpability. Broadly speaking, mens rea is the mental state that a person has at the time that he or she performs the acts that constitute the commission of a crime. For example, if the accused stabbed the victim with desire to cause the victim s death, then the accused had the mens rea of specific intent to kill, which is one variety of mens rea that makes a person criminally liable for murder. 6

Types of Mens Rea Intention is the most culpable from of mens rea. This is because it is more blameworthy to cause harm deliberately (intention) than it is to do so carelessly (recklessness). Therefore, intention is used in more serious offences such as murder, which requires intention to kill or cause grievous bodily harm which sets it apart from other, less culpable, forms of homicide. Intention Intention may come in two forms: Direct Intention this corresponds with the everyday meaning of intention. causes death as his aim, purpose or goal has direct intention to kill. A person who Oblique Intention - This is broader than direct intention and includes the foreseeable and inescapable consequences of achieving a desired result, even if the consequence itself is not desired. Students tend to find oblique intention difficult, probably because it differs from the ordinary meaning of intention. It may help to think about the reasons why the courts expanded the definition of intention. This was done to widen the net to catch more defendants, particularly in relation to murder, as murder has no alternative mens rea of recklessness, defendants cannot be liable unless they fall within the scope of intention. If limited to direct intention, a defendant would only be liable if his purpose was to cause death. A defendant who caused death in pursuit of some other end would not be liable for murder even if in achieving his primary purpose death was inevitable. For example, if the defendant wants to destroy a package on an airplane to collect the insurance, he would not be liable for murder if he planted a bomb timed to go off in mid-flight unless the definition of intention went beyond direct intention. Hyam v DPP [1975] AC 55 - The defendant, in order to frighten Mrs Booth, her rival for the affections of Mr X, put burning newspaper through the letterbox of Booth's house and caused the death of two of her children. She claimed that she had not meant to kill but had foreseen death or grievous bodily harm as a highly probable result of her actions. Ackner J directed the jury that the defendant was guilty if she knew that it was highly probable that her act would cause at least serious bodily harm. 7

Although Lord Hailsham LC stated that he did not think that foresight of a high degree of probability is at all the same thing as intention, and it is not foresight but intention which constitiutes the mental element in murder, the House of Lords (by a 3-2 majority), held that foresight on the part of the defendant that his actions were likely, or highly likely, to cause death or grievous bodily harm was sufficient mens rea for murder. R v Moloney [1985] AC 905 House of Lords - The defendant shot his step father killing him. Evidence was produced that the pair had a good relationship. They had been celebrating the defendant's grandparents ruby wedding anniversary and had consumed a quantity of alcohol. The rest of the family had retired to bed and the two stayed up drinking. The defendant told his step father that he wanted to leave the army. The step father was not happy at the news and berated the defendant. He told him he could load, draw and shoot a gun quicker than him and told him to get the guns. The defendant returned with two guns and took the challenge. The defendant was first to load and draw and the step father said, "I don't think you have got the guts but if you have pull the trigger". The defendant pulled the trigger but in his drunken state he did not believe the gun was aimed at the step father. The trial judge directed on oblique intent and the jury convicted. The Court of Appeal dismissed the appeal and the defendant appealed to the House of Lords. Held: The defendant's conviction for murder was substituted for manslaughter. It was not a case of oblique intent and the judge should not have issued a direction relating to further expansion of intention. Lord Bridge: "The golden rule should be that, when directing a jury on the mental element necessary in a crime of specific intent, the judge should avoid any elaboration or paraphrase of what is meant by intent, and leave it to the jury's good sense to decide whether the accused acted with the necessary intent, unless the judge is convinced that, on the facts and having regard to the way the case has been presented to the jury in evidence and argument, some further explanation or elaboration is strictly necessary to avoid misunderstanding." Lord Bridge also gave guidance on the approach for the test on oblique intent: "In the rare cases in which it is necessary to direct a jury by reference to foresight of consequences, I do not believe it is necessary for the judge to do more than invite the jury to consider two questions. First, was death or really serious injury in a murder case (or 8

whatever relevant consequence must be proved to have been intended in any other case) a natural consequence of the defendant's voluntary act? Secondly, did the defendant foresee that consequence as being a natural consequence of his act? The jury should then be told that if they answer yes to both questions it is a proper inference for them to draw that he intended that consequence." R v Hancock and Shankland [1986] 2 WLR 257 - The defendants were striking miners who threw a concrete block from a bridge onto the motorway below. It struck a taxi that was carrying a working miner and killed the driver. The defendants argued that they only intended to block the road but not to kill or cause grievous bodily harm. The trial judge directed the jury on the basis of Lord Bridge's statements in Moloney (ie, was death or grievous bodily harm a natural consequence of what was done, and did the defendants foresee that consequence as a natural consequence?) and the defendants were convicted of murder. On appeal a verdict of manslaughter was substituted by the House of Lords who reaffirmed that the prosecution has to establish an intention to kill or do grievous bodily harm on the part of the defendant. Lord Scarman felt that the Moloney guidelines on the relationship between foresight and intention were unsatisfactory as they were likely to mislead a jury. Lord Scarman expressed the view that intention was not to be equated with foresight of consequences, but that intention could be established if there was evidence of foresight. The jury should therefore consider whether the defendant foresaw a consequence. It should be explained to the jury that the greater the probability of a consequence occurring, the more likely that it was foreseen, and the more likely that it was foreseen, the more likely it is that it was intended. In short, foresight was to be regarded as evidence of intention, not as an alternative form of it. R v Nedrick (1986) 83 Cr App 267 - A child had burned to death in a house where the defendant had, without warning, put a petrol bomb through the letter box. He admitted to starting the fire but stated that he only wanted to frighten the owner of the house. The Court of Appeal overturned the murder conviction and substituted a verdict of manslaughter as the judge had misdirected the jury. Lord Lane CJ provided a model direction for a jury about intent in a murder case where the defendant did a manifestly dangerous act and someone died as a result. Lord Lane CJ suggested that when determining whether the defendant had the necessary intent, it might be helpful for a jury to ask themselves two questions: (1) How probable was the consequence which resulted from the defendant's voluntary act? (2) Did he foresee that consequence? 9

Formulating a definition which captured the appropriate level of fault is difficult and ever changing. The current definition is taken from R v Woollin(1999): In this case, the appellant threw his 3 month old baby son on to a hard surface. The baby suffered a fractured skull and died. The trial judge directed the jury that if they were satisfied the defendant "must have realised and appreciated when he threw that child that there was a substantial risk that he would cause serious injury to it, then it would be open to you to find that he intended to cause injury to the child and you should convict him of murder." The jury convicted of murder and also rejected the defence of provocation. The defendant appealed on the grounds that in referring to 'substantial risk' the judge had widen the definition of murder and should have referred to virtual certainty in accordance with Nedrick guidance. The Court of Appeal rejected the appeal holding that there was no absolute obligation to refer to virtual certainty. House of Lords held: Murder conviction was substituted with manslaughter conviction. There was a material misdirection which expanded the mens rea of murder and therefore the murder conviction was unsafe. The House of Lords substantially agreed with the Nedrick guidelines with a minor modification. The appropriate direction is: "Where the charge is murder and in the rare cases where the simple direction is not enough, the jury should be directed that they are not entitled to infer the necessary intention, unless they feel sure that death or serious bodily harm was a virtual certainty (barring some unforeseen intervention) as a result of the defendant's actions and that the defendant appreciated that such was the case. The decision is one for the jury to be reached upon a consideration of all the evidence." Recklessness Recklessness is a less culpable form of mens rea based on unjustified risk-taking. The law on recklessness has been subject to change over the years as the courts fluctuated between a subjective and an objective approach. Caldwell 1982 (objective) recklessness: Test: did the defendant create an obvious and serious risk that property would be damaged or destroyed? If so, did he fail to recognize a risk that should have been obvious to the reasonable man? 10

The risk of damage from an out-of-control fire would be obvious to the reasonable man. R v G 2004 (subjective) recklessness Test: was the defendant aware of the risk of the damage/destruction of property and in the circumstances, was it unreasonable for her to take that risk? This test is subjective so it focuses on what the particular defendant knew and expected to result from her actions. R v Cunningham [1957] 2 QB 396.- The defendant had broken a gas meter to steal the money in it with the result that gas escaped into the next-door house. The victim became ill and her life was endangered. The defendant was charged under s23 of the Offences Against the Person Act 1861 with "maliciously administering a noxious thing so as to endanger life". The Court of Appeal, allowing the defendant's appeal held that for a defendant to have acted "maliciously" there had to be proof that he intended to cause the harm in question, or had been reckless as to whether such harm would be caused. In this context recklessness involved the defendant in being aware of the risk that his actions might cause the prohibited consequence. MPC v Caldwell [1982] AC 341.- The defendant, who had been sacked from his employment at an hotel, became drunk and returned at night to the hotel, setting it on fire. There were ten people resident in the hotel at the time, but the fire was discovered and extinguished before any serious harm could be caused. The defendant pleaded guilty to criminal damage but pleaded not guilty to the more serious charge of criminal damage with intent to endanger life or recklessness as to whether life would be endangered. he argued that due to his drunken state it had never crossed his mind that lives might be endangered by his actions, he had simply set fire to the hotel because of his grudge against his former employer. The House of Lords re-affirmed Cunningham as a form of recklessness in criminal law, but introduced an alternative form of recklessness based upon the defendant's failure to advert to a risk which would have been obvious to the reasonable person. Lord Diplock held that a defendant was reckless as to whether he damaged property if he created a risk of damage which would have been obvious to the reasonable man and either - had not given any thought to the possibility of such a risk when he carried out the act in question, or * had recognised that there was some risk involved and nonetheless went on to carry it out. 11

Elliot v C [1983] 1 WLR 939. - The defendant, an educationally subnormal 14-year-old schoolgirl, had entered a neighbour's garden shed, poured white spirit on the floor and ignited it. The defendant then fled as the shed burst into flames. The magistrates dismissed the charge of criminal damage on the basis that she gave no thought to the risk of damage, and that even if she had, she would not have been capable of appreciating it. The prosecution appealed and the Divisional Court, allowing the appeal, held that this was irrelevant to the issue of recklessness. When the court in Caldwell had talked about an "obvious" risk, they had meant obvious to the reasonable man if he had thought about it, and not obvious to the defendant if he had thought about it. R v Coles [1994] Crim LR 820.-The defendant, aged 15 at the time of the offence and of lower than average mental capacity, had been playing in a hay barn with other children. The evidence was that he had tried to set fire to the hay whilst other children were in the barn. The children escaped unhurt. The defendant was charged with arson, being reckless as to whether the lives of others would be endangered. During the trial it was submitted that the Caldwell direction should be amended so that the assessment of whether or not the appellant had, by his actions, created an obvious risk of harm, should be made more subjective. The trial judge rejected this submission stating that the test was whether or not the risk would have been obvious to the reasonable prudent adult person. The Court of Appeal dismissed the defendant's appeal. It was held that the first limb of the Caldwell direction was objective and the state of mind of the accused was irrelevant to the question of whether or not he had, by his act or omission, created an obvious risk of harm to persons or property. On appeal, the argument put forward on behalf of the appellant had been broadened to encompass the proposition that the second limb of the Caldwell test should have some regard to the defendant's capacity to foresee risk. The appeal court took the view that such an argument had failed in Elliot v C [1983] 1 WLR 939 and that that decision had been confirmed by the Court of Appeal in R v R (Stephen Malcolm) (1984) 79 Cr App R 334. It was not predisposed to depart from its own previous decision. R v G & R [2003] 3 WLR House of Lords - The two appellants, aged 11 and 12, went camping for a night without their parents permission. The boys found some old newspapers outside the Co-op which they lit with a lighter and then threw them under a wheelie bin. They then left without putting them out assuming they would naturally burn out. In fact the burning newspapers set light to the wheelie bin and the fire spread to the Co-op shop and caused over 1m of damage. 12

Held: The defendants' convictions were quashed. The House of Lords overruled MPC v Caldwell [1982] AC 341. The appropriate test of recklessness for criminal damage is: "A person acts recklessly within the meaning of section 1 of the Criminal Damage Act 1971 with respect to i. a circumstance when he is aware of a risk that it exists or will exist; ii. a result when he is aware of a risk that it will occur; and iii. it is, in the circumstances known to him, unreasonable to take the risk." Transferred Malice Transferred malice is a means of imposing liability for the unplanned consequences of deliberate wrongdoing. If the defendant has the mens rea of murder in relation to A but brings about the actus reus i.e. causes death, in relation to B he may still be liable. Transferred malice only operates if the actus reus of the offence committed matches the actus reus of the offence planned. R v Saunders (1573) 2 Plowd 473 - The defendant gave his wife an apple which he had poisoned with arsenic. He wanted to kill her so that he could marry another. The wife took a bite from the apple then gave it to their daughter. The daughter died. Held: The defendant was liable for the murder of his daughter. His intention to kill his wife was transferred to the daughter. R v Latimer (1886) 17 QBD 359 - The defendant got into a fight in a pub with another man. He took off his belt and hit the man with the belt. The belt ricocheted off and hit a woman in the face. Held: The defendant was liable for the injuries inflicted on the woman despite the fact that he did not intend to harm her. The mens rea he had to cause harm to the man was transferred to the woman. Transferred malice does not operate where the crime which occurred was different from that intended: 13

R v Pembliton (1874) LR 2CCR 119 - The defendant threw some stones into a crowd of people. He wanted to disperse the crowd. A stone hit and smashed a window. He was convicted of criminal damage and appealed. Held: Conviction quashed. His mens rea for an offence against the person could not be transferred to a property offence as they are entirely different offences. Problems Arising with the Simultaneous Combination of Actus Rea and Mens Rea It is not enough that the defendant has committed the guilty act and then later formed the guilty state of mind or vice versa: the two must coincide. This means that the defendant must possess the guilty state of mind at the time that the actus reus is committed. Problems arise in fixing liability if there is a lapse in time after the actus reus, before the mens rea comes into being and equally in situations where the mens rea precedes the actus reus. Actus Reus occurring before the Mens Rea. This means that the defendant completes the prohibited act before he forms the prohibited state of mind. Two distinct approached have been used to secure a conviction in situations where the actus reus is complete prior to the formation of mens rea. Treating the actus reus as a continuing act : Fagan v The Metropolitan Police Commissioner (1969); Basing liability on failure to act after creating a dangerous situation :R v Miller (1983). Mens Rea occurring before the Actus Reus. Neither of the solutions formulated in Fagan or Miller are able to deal with situations in which the mens rea occurs prior to the actus reus so further judicial creativity was necessary. This resulted in the single transaction view: R v Church 1966. 14

The Exception of Strict Liability Offences Strict Liability offences do not require mens rea in relation to all parts of the actus reus. This means that a defendant can be convicted even if he was unaware of essential matters relevant to the offence: A defendant can be convicted of driving whilst disqualified even if he believes his disqualification period has ended; Liability can be imposed for selling lottery ticket to a person under the age of 16 even if the defendant did not realize the age of the customer. Strict Liability offences are almost inevitably created by statute and are often regarded as regulatory offences where there is no moral content to the offence, such as laws relating to trading standards and road traffic offences. Strict liability offences are seen as a way of enforcing particular standards of behaviour and thus protecting the public from harm. 15