The Legal System and Criminal Law

Actus reus

physical element of a crime (the guilty act)

Mens rea

mental element of a crime (what the defendant is intending, thinking out or failing to think about.)

Strict liability offence

selling alcohol to under 18s and speeding / will be charged and actus rea or mens rea doesn't count.

murder actus reus

unlawful killing of another person
Intention to kill or cause serious harm

Mens rea of reckless manslaughter

- knowing there was a risk of death but doing it anyway.

Mens rea of negligent manslaughter

falling below the standard of reasonable person doing that activity

Magistrates court

- Low level cases
- Magistrates are not judges - normally people of the public
- Power to sentence to 6 months to a year / a fine / community sentence / ban etc
- Most cases start in a Magistrates court
- If too severe pass on to the crown court
- Criminal law - magistrates and crown court
- 2 or 3 magistrates
- No jury
- A district judge

Crown court:

- Deals with serious criminal cases such as murder, rape, and robbery.
- Also deals with speaks against a magistrates' court conviction or sentence
- Cases passed from a magistrate's court for trial or sentencing
- Can give community and prison sentences
- Normally had a jury which decides if you're guilty or not and a judge deciding the sentence

Standard of proof:

- Prove beyond reasonable doubt.
- Jury must be sure of the defendant's guilt
- Standard of proof equals level at which the case has to be proved

Raising a defence:

- If the defendant raises a defence, then it is for the government to disapprove it

Raising a defence - reverse burden

- For all common law defences (except insanity) there must be some evidence of the key points of the defence given at trial
- If evidence is given then the prosecution must disapprove at least one element of that defence
- In fact, the trial judge must direct the jury to acquit unless it is satisfied that the defence has been disapproved by the prosecution
- For certain defences the burden of proof is on the defendant
- For example, if they claim that they were insane at the time of the crime, the burden of proving them is on him or her
- This shifting of the burden of proof is called 'reverse onus.'
- Where this is the case then the defence only prove their defence on the balance if probabilities

Conduct crimes

- where the conduct used is the offence, and there is no required result element

Consequence crimes

- those where the conduct itself is not criminal but the result of the action is, requires proof that the actus reus caused the forbidden consequences

A disease of the mind (epilepsy and sleepwalking)

involuntary act, you won't be found guilty.

OMISSION

- An Omission is a failure to do something
General rule is that you are not liable, and you have no actus reus if you fail to do something

Good Samaritan Law

You don't have to do anything if you see someone in danger, it's not illegal
However, some countries have the Good Samaritan Law. Example: France.

Factual causation

- was the injury or death caused completely by something else. The defendant can only be found guilty if the injury/death would not have happened if it hadn't been for his act.

Legal causation

- was the defendants' actions minor/minimal as a cause?
No break in the chain of causation - did something/someone else cause a break In the causation. - Was the actus reus of the Defendant more than a minimal cause of the injuries or death? - If it is only minimal then the Defendant will not be thought to have caused the death - no legal causation

Thin skill rule

The rule states you must take the victim as you find him. You cannot blame their condition for the resulting injuries.

Three levels of mens rea

intention (direct, indirect), recklessness, negligence

Intention (direct)

- In the case of Mohan (1975), the court defined intention as:
- "a decision to bring about, in so far as it lies within the accused's power (the prohibited consequence), no matter whether the accused desire that consequence of his act or not"
- So this makes it clear that the defendant's motive or reason for doing the act is not relevant
- The important point is that the defendant decided to bring about the prohibited consequence for there to be direct intention
- This is when the defendant carries out the actus reus on purpose.
- A deliberate action which causes some kind of harm was almost certainly intended.
- Intention is usually the mens rea of serious crimes like murder or GBH

Indirect (oblique) intent:

- Sometimes the defendant has intention to do something but it is not to cause GBH or kill - but death does occur

Whats the Wollen test?

- Was death or serious injury a virtual certainty?
- Did the Defendant know this was a virtual certainty?
- If answer to both questions is yes, then he is said to have 'indirect intent' and this can be evidence of direct intention.
- It's as if the defendant directly intended to kill or cause GBH.
- This is called foresight of consequences

For strict liability:

- Strict liability offences protect society by promoting greater care over matters of public safety.
- It also encourages higher standards in things such as hygiene in the food industry.
- It also cuts down on court time as more people are likely to plead guilty.
- It is also easy to enforce as mens rea does not need to be proved.

Against strict liability:

- The main argument against strict liability is that it makes people who are not blameworthy guilty.
- Even those who have taken all possible care will be found guilty and can be punished, as in the lottery ticket case.
- It is expensive and time consuming for business.

- Contemporaneity Rule

- To be guilty of a crime the defendant must perform the actus reus at the same time as the mens rea.
- They must coincide.

Transferred malice:

- This says that the Defendant can be found guilty if he/she intended to commit a crime against one victim, but actually injures another.
- The mens rea attaches to the crime, not the victim.

Recklessness

- Two questions to ask:
- Did the Defendant know that there was a risk?
- Did he/she deliberately take that risk?

Statutory duty

road traffic act section 6 1988.

A contractual duty to act

Pittwood 1902.

A duty because of a relationship

Gibbins and Proctor 1918

A duty which has been taken on

Stone and Dobinson 1977

A duty through an official position

Dytham 1979

The Gammon Tests:

• - In Gammon (Hong Kong) Ltd v Attorney-General of Hong Kong (1994), the appellants had been charged with deviating from building work in a material way
- It had to be decided whether they knew their deviation was material (mens rea) or whether the offence was one of strict liability
- Bearing in mind that the starting point is that mens rea is presumed as a requirement for a criminal offence, 4 other factors were set out for consideration:

1. The presumption can only be ruled out if this is clearly or by necessary implication the effect of the words in the statute
2. The presumption (of mens rea) is particularly strong where the offence was 'truly criminal' in nature
3. The presumption can only be displaced if the statute is concerned with an issue of social concern such as public safety
4. Strict liability should only apply if it would help enforce the law by encouraging greater vigilance to prevent the prohibited act