SQE - Criminal Law

What classification of offence is murder?

Indictable-only

To what standard do crimes need to be proved?

It is for the prosecution to prove every element of the crime 'beyond reasonable doubt': Woolmington v DPP [1935] AC 462.

What key elements are required to establish criminal liability?

Actus Reus

Men’s Rea

Absence of a valid defence

What are example result crimes?

Result crimes require the defendants conduct to cause something. Examples are:

Murder & Manslaughter

Criminal Damage

ABH

What causation is required to establish the actual reus of a result crime?

Factual Causation: but for the acts of the accused the consequence would not have happened

Legal Causation: the accused must be the ‘operating and substantial’ cause of the consequence

What is a novus actus interveniens?

A novus actus interveniens is an intervening act that breaks the chain of causation, meaning the defendant may avoid liability.

What conditions must be met for a third party's actions to break the chain of causation?

The actions of a third party must be free, deliberate, and informed (e.g., R v Pagett).

In 'fright and flight' cases, when can the victim's actions break the chain of causation?

If the victim's reaction to escape is not foreseeable or is "so daft" that a reasonable person could not have predicted it (e.g., R v Roberts).

What was established in R v Blaue regarding a victim's refusal of medical treatment?

The defendant must take their victim as they find them, including any pre-existing beliefs or conditions (the refusal did not break the chain of causation).

How does the 'thin skull' rule apply in causation cases?

The defendant is liable for the full extent of harm caused, even if the victim has a pre-existing condition that makes them more susceptible to harm (e.g., R v Hayward).

Under what circumstances do natural events break the chain of causation?

Natural events will only break the chain if they are extraordinary and not reasonably foreseeable (e.g., leaving a victim unconscious on the beach).

What is the general rule regarding omissions in criminal liability?

A defendant cannot be criminally liable for a failure to act, as there is no general duty to act to prevent harm (R v Smith (William) (1826)).

What must the prosecution prove to secure a conviction based on an omission? (List the requirements)

• The crime can be committed by an omission.

• The accused was under a legal duty to act.

• The accused breached that duty.

• The breach caused the actus reus of the offence to occur.

• The accused had the required mens rea if necessary.

Name common situations where a defendant is under a legal duty to act.

Statute, special relationship, voluntary assumption, contract, defendant creating a dangerous situation, and public office.

What is a "special relationship" in the context of legal duty?

Relationships where one party has a duty to care for another, such as between doctors and patients, parents and children, or spouses.

What is the role of public office holders regarding omissions?

Public office holders have a duty to act in their capacity; failure to do so can lead to liability, as seen in R v Dytham (1979).

What mental states are covered under mens rea?

Mens rea includes intention, recklessness, knowledge and belief, dishonesty, and negligence.

What does "mens rea" mean in criminal law?

"Mens rea" means "guilty mind" and refers to the required mental element necessary for a crime.

What must the prosecution prove about the defendant’s mental state to establish criminal liability?

The prosecution must prove the defendant had the required mental state (mens rea) at the time of committing the prohibited act (actus reus).

What are the two types of intention in criminal law?

Direct intention (aim or purpose) and indirect/oblique intention (outcome was virtually certain and known by the defendant).

How is dishonesty assessed in criminal law, specifically after the case of Ivey v Genting Casinos [2017]?

Dishonesty is assessed by determining what an ordinary person would consider dishonest in similar circumstances.

What is the general rule regarding omissions in criminal liability?

A defendant cannot be criminally liable for a failure to act, as there is no general duty to act to prevent harm (R v Smith (William) (1826)).

What is "direct intent" in criminal law?

Direct intent occurs when the consequence is what the defendant aims to happen; it is the purpose or objective of their act. This is a wholly subjective test from the defendant's point of view.

What is "oblique intent."

Oblique intent occurs when the consequence is not the defendant's primary aim but a side effect they recognize as a near certainty due to their actions

What is the test for oblique intent?

The jury should find oblique intent only if:

1. The result was a virtual certainty due to the defendant’s actions (objective element).

2. The defendant appreciated this certainty (subjective element).

What is recklessness in criminal law?

Recklessness is when a person sees a risk of harm, proceeds anyway, and the risk-taking is unjustifiable, making them liable for reckless behavior.

Describe the test for recklessness according to R v G.

A person acts recklessly if:

1. They are aware of a risk that a circumstance exists or a result will occur.

2. It is, in the circumstances known to them, unreasonable to take the risk.

What is the "continuing act theory" in criminal liability?

If the actus reus is ongoing, it is sufficient for the defendant to form the mens rea at any point during the actus reus.

Fagan v Metropolitan Police Commissioner – The defendant accidentally drove onto a policeman's foot but later refused to move, forming mens rea during the continuing actus reus.

Describe the "one transaction principle" in criminal liability.

When the actus reus consists of a series of acts, the mens rea formed at any point during the sequence can suffice for liability.

Thabo Meli – Defendants tried to kill a man, thought he was dead, and pushed him off a cliff. The acts formed one transaction, fulfilling the mens rea during the sequence.

Explain "transferred malice" in criminal liability.

Transferred malice applies when the defendant’s intent to harm one person transfers to the actual harm done to another.

Transferred malice doesn’t apply if the mens rea and actus reus relate to different offences.

What are the four elements of the actus reus of murder?

The actus reus elements are:

1. Unlawful (not done in self-defence)

2. Killing (factual and legal causation)

3. Human being (alive and capable of independent life)

4. Under the King’s peace (within legal jurisdiction)

When is a killing considered lawful?

A killing is lawful if it occurs in:

1. Battle (killing enemy soldiers),

2. Advancement of justice (e.g., lawful death penalty),

3. Self-defence (when reasonable and necessary force is used).

What two tests must be satisfied to establish causation in murder?

The two causation tests are:

1. Factual Cause - “but for” test (R v White [1910]).

2. Legal Cause - substantial cause of harm, more than minimal (R v Hughes [2013]).

What constitutes a ‘human being’ for the purposes of murder?

A victim must be:

1. Alive and capable of independent life (born and not a corpse).

2. Fully expelled from the mother’s body and born alive (R v Poulton [1832]).

What is the mens rea for murder?

The mens rea for murder is "malice aforethought," which can mean:

1. Intention to kill (express malice).

2. Intention to cause grievous bodily harm (implied malice).

Under what conditions can oblique intent apply to murder cases?

Oblique intent applies if:

1. Death or serious injury was virtually certain from the defendant’s actions (objective),

2. The defendant was aware of this virtual certainty (subjective) (R v Woollin [1999]).

What is diminished responsibility?

A partial defence to murder, reducing the offence to voluntary manslaughter, and thus avoiding a mandatory life sentence (Homicide Act 1957, s2(3)).

Who bears the burden of proving diminished responsibility?

• The defence, on the balance of probabilities (Homicide Act 1957, s 2(2)).

To which offences does diminished responsibility apply?

Only murder, not attempted murder (R v Campbell [1997]).

What are the four elements required to establish diminished responsibility?

(1) Abnormality of mental functioning

(2) Recognised medical condition

(3) Substantial impairment of D’s ability (more than trivial)

(4) Explanation for D’s acts and omissions (direct cause or contributory factor)

Is Alcohol Dependency Syndrome a recognised medical condition for diminished responsibility?

Yes, it can support a defence of diminished responsibility if it contributes to the abnormality of mental functioning.

However, voluntary intoxication is not sufficient (R v Dowds [2011]).

What are the three key requirements for the loss of control defence under CJA 2009?

1) D must have lost self-control;

2) Due to a fear and/or anger qualifying trigger; fear of serious violence, anger of having being seriously wronged (but not sexual infidelity)

3) A normal person might have acted similarly. (similar sex, age and of normal tolerance).

Who has the burden of proof for loss of control? (defence to murder)

The prosecution, once the issue is raised (CJA 2009, s54(5)).

What happens if the loss of control defence is successful?

The conviction is reduced from murder to voluntary manslaughter, avoiding the mandatory life sentence (s54(7)).

Does the loss of self-control need to be sudden? (Defence)

No, it need not be sudden (CJA 2009, s54(2)).

It is not available if D acted with a considered desire for revenge.

Summarize the limitations on the loss of control defence.

The defence cannot be used:

• In an act of 'considered desire for revenge' (s54(4)).

• As an excuse to use violence (s55(6)(a) & (b)).

• If the sole trigger was sexual infidelity (s55(6)(c)).

• For attempted murder (based on R v Campbell).

Define unlawful act manslaughter.

Unlawful act manslaughter occurs when the accused lacks the intent to kill but causes death through an intentional, dangerous, and unlawful act.

What is the actus reus of unlawful act manslaughter?

• Unlawful Act (not an omission)

• Act is Objectively Dangerous

• Causes Death

What is the mens rea of unlawful act manslaughter?

The mens rea for unlawful act manslaughter is the intent to commit the unlawful act itself. The defendant does not need to intend or foresee death or serious harm, only to perform the act that caused the death.

How is the "dangerous" element of unlawful act manslaughter tested?

The act is dangerous if all sober and reasonable people would recognize a risk of some harm, though not necessarily serious harm (R v Church).

The harm must be physical, but shock that has physical effects may count as harm

In drug-related deaths, when can unlawful act manslaughter apply?

If the defendant directly administers a noxious substance, they can be liable. However, if the victim self-administers, the supplier is not liable (R v Kennedy).

The House of Lords ruled that a fully informed, responsible adult's voluntary self-administration of drugs breaks the chain of causation, absolving the supplier of manslaughter liability.

What are the two main forms of involuntary manslaughter?

Gross negligence manslaughter and unlawful act manslaughter.

Define "gross negligence manslaughter."

It occurs when the defendant breaches a duty of care owed to the victim, with negligence so severe it warrants a criminal charge.

Negligence must go beyond compensation and show such disregard for life and safety that it amounts to a crime deserving punishment.

What are the five requirements for gross negligence manslaughter as established in R v Adomako (1995)?

• Existence of a duty of care

• Breach of that duty (reasonable person / professional standards)

• Breach causes death (but for and operating and substantial cause)

• Risk of death was present

• Breach was so bad as to amount to gross negligence (obvious and serious risk of death).

What constitutes a "duty of care" in gross negligence manslaughter?

A duty to avoid causing foreseeable harm, similar to tort law, and it can arise from statutory duty, contract, relationships, voluntary assumption, or creating a dangerous situation.

What role does "causation" play in gross negligence manslaughter?

Both factual causation ("but for" test) and legal causation (defendant’s act must be the "operating and substantial cause") must be proven.

What differentiates negligence causing death in civil cases from criminal gross negligence?

Criminal gross negligence must show conduct so bad that it is condemned as a crime, judged by the jury.

Summarise the various homicide offences

• Murder (Intention and Mens Rea)

• Voluntary manslaughter by loss of control (Murder but with defence)

• Voluntary manslaughter by diminished responsibility (Murder but with defence)

• Gross negligence manslaughter (Duty of Care)

• Unlawful act manslaughter (No intention needed for Murder)

What is the actus reus (AR) of assault?

Causing the victim to apprehend immediate and unlawful personal violence.

What is the mens rea (MR) of assault?

Intentionally or recklessly causing the victim to apprehend immediate and unlawful personal violence.

What is required for the defendant to cause the victim’s apprehension in an assault?

The defendant’s words or actions must cause the victim to believe they will suffer immediate and unlawful violence.

What is the actus reus (AR) of battery?

The application of unlawful force on another person.

What is the mens rea (MR) of battery?

Intention or recklessness as to applying unlawful force to another person.

Can an omission constitute a battery?

Yes, an omission can constitute a battery if it creates a danger or exposes someone to harm.

What is required for an act to constitute unlawful force in battery?

The force must be applied without consent and not be in self-defence or another lawful excuse.

What is the difference between assault and battery?

Assault involves causing the victim to anticipate violence, while battery involves actual unwanted physical contact.

What is the most serious non-fatal offence under the OAPA 1861?

Wounding or grievous bodily harm with intent (s 18 OAPA 1861).

What is required for the actus reus of Assault Occasioning Actual Bodily Harm under s 47 OAPA 1861?

There must be an assault or battery that occasions actual bodily harm to the victim.

What is the mens rea for Assault Occasioning Actual Bodily Harm (s 47)?

The mens rea for the underlying assault or battery (intention or recklessness as to causing the victim to apprehend immediate unlawful violence or applying unlawful force).

What constitutes "actual bodily harm" under s47?

Any hurt or injury calculated to interfere with the health or comfort of the victim, which is more than transient or trifling.

It can include psychiatric injury if it is a clinically recognisable condition.

What is the actus reus of wounding or inflicting grievous bodily harm under s 20 OAPA 1861?

Unlawfully wounding or inflicting grievous bodily harm upon any other person.

What is the mens rea for s 20 OAPA 1861?

Intention or recklessness as to causing some harm.

What is the difference between "wound" and "grievous bodily harm" (GBH) under s 20 and s 18?

A "wound" requires a break in the skin, while GBH means serious harm.

What is required for a conviction under s 18 OAPA 1861?

Intent to cause grievous bodily harm; recklessness is not sufficient.

What are the key differences between s47, s20, and s18 of the Offences Against the Person Act 1861?

• s47 (ABH)

  • Definition: Assault/battery causing actual bodily harm.

  • Mens Rea: Intent/recklessness to cause assault/battery (not specific harm).

  • Example: Punch causing minor injuries like bruising or a sprain.

  • Max Penalty: 5 years.

• s20 (GBH/Wounding)

  • Definition: Unlawful wounding or inflicting grievous bodily harm.

  • Mens Rea: Intent/recklessness as to some harm (not necessarily GBH).

  • Example: Striking someone with a heavy object, breaking a bone.

  • Max Penalty: 5 years.

• s18 (GBH/Wounding with Intent)

  • Definition: Wounding/causing GBH with specific intent.

  • Mens Rea: Specific intent to cause GBH/resist arrest.

  • Example: Repeated stabbing aimed to cause serious injury.

  • Max Penalty: Life.

What is the mens rea for basic criminal damage?

The mens rea is intention or recklessness as to the destruction or damage of property belonging to another.

What type of property is covered by the CDA 1971?

Property must be tangible (real or personal property, including money). Wild creatures are included if tamed or kept in captivity.

What is the actus reus for basic criminal damage?

Destroying or damaging property belonging to another.

What are the two lawful excuse defences under s 5(2) CDA 1971 for basic criminal damage?

1. s 5(2)(a) - The defendant believes the owner would have consented to the damage. (doesn’t need to be reasonable)
2. s 5(2)(b) - The defendant acts to protect their or another’s property (D must believe subjective and must be reasonable objective)

What are the actus reus elements of aggravated criminal damage?

Destroying or damaging property (by fire).

Can aggravated criminal damage be committed against the defendant's own property?

Yes, a defendant can commit aggravated criminal damage to their own property.

Do the lawful excuse defences under s 5(2) of the Criminal Damage Act 1971 apply to aggravated criminal damage? (Consent / protection of another property)

No, they do not apply, but general defences under s 5(5) may still apply.

What is the mens rea for aggravated criminal damage under s 1(2)(a) of the CDA 1971?

Intention or recklessness as to the destruction or damage of property (by fire) or Intention or recklessness as to the endangerment of life by the damage or destruction (by fire).

How does fire affect the application of aggravated criminal damage, according to R v Steer?

If the damage is caused by fire, the risk to life will always arise from the damaged property.

What are the elements of theft?

Actus Reus:

• Appropriation (s 3)

• Property (s 4)

• Belonging to another (s 5)
  Mens Rea:

• Dishonestly (s 2)

• With the intention to permanently deprive (s 6)

What did R v Hinks [2000] clarify about the theft of gifts?

Appropriation can still occur even if the property is a valid gift, as appropriation is a neutral act and the donor’s state of mind is irrelevant.

What does s 3(1) of the Theft Act 1968 say about "later appropriation"?

If a person initially acquires property innocently but later assumes the rights of an owner with the necessary mens rea, it can constitute theft.

What types of property cannot be stolen?

• Wild plants and animals (with some exceptions)

• Electricity (Low v Blease [1975])

• Corpses and body parts unless controlled for scientific or teaching purposes (Kelly and Lindsay [1999])

• Confidential information (Oxford v Moss [1978])

When is a s 9(1)(a) burglary committed?

At the point of entry into the building or part of the building as a trespasser with the intent to commit theft, inflict GBH, or cause criminal damage.

When is a s 9(1)(b) burglary committed?

When, having entered as a trespasser, the defendant goes on to steal, attempt to steal, inflict GBH, or attempt to inflict GBH.

What is the actus reus for s 9(1)(a) burglary?

The defendant enters a building or part of a building as a trespasser.

What is the mens rea for s 9(1)(a) burglary?

The defendant must know or be reckless as to their entry as a trespasser and intend to commit theft, GBH, or criminal damage upon entry.

What is "conditional intent" in the context of s 9(1)(a) burglary?

Conditional intent, such as entering a building to steal anything valuable if found, is sufficient intent for s 9(1)(a), as upheld in AG's References (Nos 1 and 2 of 1979).

Does s 9(1)(b) burglary require intent to commit GBH at the time of entry?

No, s 9(1)(b) burglary requires that GBH be inflicted or attempted after entering as a trespasser, without needing prior intent.

What offences can satisfy the requirement for inflicting GBH under s 9(1)(b)?

Offences under sections 18 and 20 of the Offences Against the Person Act 1861 can qualify as inflicting GBH.

What are the potential sentences for burglary under the Theft Act 1968?

Up to 14 years for burglary in respect of a dwelling and up to 10 years in any other case.

When must the offender have the article with them for a s 9(1)(a) burglary?

At the time of entry.

When must the offender have the article with them for a s 9(1)(b) burglary?

At the time of committing or attempting to commit theft or grievous bodily harm.

Felix commits a burglary and has a length of rope intended to tie up any person who disturbs him. Is this aggravated burglary?

Yes, because the rope is a weapon of offence under s 10(1)(b) as it is intended for incapacitating a person.