CRIME

Factual Causation  

Legal Causation 

Intervening Acts 

Would the consequence have happened, but for the actions of the defendant?  -  R V White  

D must be the substantial/ operative cause of the consequence (R V Smith; R V Cheshire)  

D must be more than the minimal cause (R V Kimsay) 

Possible intervening acts:  

• Acts of third parties 

• Actions of the victim 

• Unforeseen acts of the victim.  

Breaking the chain of causation 

Can break the chain 

• Palpably wrong medical treatment – this is an extremely high threshold (R V Jordan) 

• Daft actions:  where D’s acts are so daft and unexpected no reasonable person could have foreseen them (R V Roberts; this has to be proportionate to the threat (R V Williams and Davies).   

• Unforeseeable acts of nature.  

• Voluntary injection of drugs (Kennedy No 2)  

Will not break the chain: 

• General medical treatment ( R V Cheshire)  

• Victim self-neglect (R V Dear);  (R V Wallace – this can potentially go to suicide).  

• Turning of life support machine (Steele;  Airedale NHS Trust V Bland) 

The thin skull rule The defendant must take the victim as they find them; pre-existing conditions of V will not break the chain of causation (R V Blaue) 

Direct intention 

Don’t get confused with motive 

The defendant does everything within their power to achieve a prohibited consequence (R V Mohan).  

Intention:  what a person is aiming to achieve.  

Motive:  The reason someone wants to do something.  

See R V Steane  

The current test R V Woolin (confirmed in Matthews V Alleyne).   

Don’t get confused with recklessness 

Were the consequences of the defendant’s actions virtually certain?  

If so,  did the defendant appreciate that was the case?   

If so, the jury is entitled to find intention.   This is based on all the evidence of the case (S8 Criminal Law Act 1967).  

In some cases, it’s difficult for a jury not to find intent (R V Matthews and Alleyne) 

In mocks,  students tend to write that the defendant must appreciate the risk.  Do not write reference risk; this blurs the line with recklessness and is a lower standard.   

You should always write did the defendant appreciates the consequence was virtually certain  

Recklessness  

How’s this different to oblique intent?  

R V Cunningham  

Did the defendant take an unjustifiable risk?  

Was the defendant aware of the risk (R V G and another)? 

Oblique intent requires virtual certainty.  If I throw a chair out of the law office window in the summer break, there’s a risk, maybe even a high risk, it may hurt someone.  However, it’s not virtually certain to do so.  

Continuing Act 

Series of Acts 

Where the defendant realises the mens rea after doing the actus reus (R V Miller) 

Where the defendant forms the mens rea and actus reus at different times; usually because they believe something has already happened (R V Thabo Meli) 

Common Pitfall to avoid 

Remember, both of these are about realising the mens rea at the time of the actus rues; if the actus reus and mens rea are performed together, but the consequence of the actus rues does not occur at the same time this does not mean the principle of coincidence is relevant.   

Murder 

Define by Lord Coke, in 1797, the unlawful killing of a reasonable creature, under the King’s Peace, with malice aforethought, express or implied, and the death to take place within a year and a day.   

Actus reus 

1. Unlawful = no lawful defences, ie necessity (Re:A) – though not generally available (R V Dudley and Stephenson); self-defence; withdrawal of futile medical treatment (Airedale NHS Trust V Bland).  

2. Kill – can be done by act or omission (R V Gibbons and Proctor) and must be caused by D (See causation).   

3. Reasonable creature – A person capable of independent living (AG Ref No3 of 1994; R V Poulton); this is binary (R V Inglis)  

4. Under the King’s Peace (not done in the legitimate theatre of war).   

Year and a day rule repealed:  Law Reform (Year and a Day Rule) Act 1996 – no limit, but prosecutions after 3 years require Attorney General’s consent.   

Mens Rea 

1. Express malice – an intention to kill. 

Or 

2. Implied Malice – an intention to do Grievous Bodily Harm; (GBH defined as ‘serious harm,’ R V Saunders) 

How this works in practice: 

Express Malice  

1. Express malice direct intention: - D intends to kill V and D does everything reasonably possible  to achieve that outcome (Mohan). 

2. Express malice indirect intention: It is virtually certain D’s actions lead to V’s death and D appreciates this is the case (Woolin) 

OR 

Implied Malice 

1. Implied malice direct intention:- D intends to cause V GBH and does everything reasonably possible to achieve that outcome and  V dies as a result (Mohan) 

2. Implied malice indirect intention:- It is virtually certain D’s actions will cause GBH and D is aware of this (Woolin) 

Special defences to murder: 

Loss of self-self-control 

Diminished responsibility  

Loss of Self-Control 

Special defence- only for murder; partial defence – will reduce conviction to manslaughter S(57(4) CJA 2009) 

Contained within S54 of the Coroners and Justice Act 2009 (CJA) 

D must lose self-control (S54(1)(a) 

• There must be sufficient evidence of a loss of self-control (R V Jewell).   

• If TJ holds there is insufficient evidence, the defence fails (R V Martin) – note the TJ decides this on balance as a matter of law.   If TJ is satisfied, then the jury are told to assume it’s there unless the prosecution the defence was not there.  

• Loss of self-control cannot be pled where D acted in revenge (S54(4)) 

There must be a qualifying trigger (S54 (1)(b)) 

Remember, a combination of all of these can form a loss of self-control S55(5) 

A person of D’s sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same or similar way to D (S54(c)) 

• An objective test – does not matter what D thinks, but what the reasonable person thinks 

• The Act states, however, that all circumstances of the case can be considered  

• This means D having a short temper is not considered, but if V deliberately targets something specific about D which causes D to lose control it may seem objectively justifiable in those circumstances.  (R V Rejamski) 

The effect of intoxication:  not relevant, but can be a circumstance: ie V taunts D about being an alcoholic which may provide a sense of being seriously wronged (R V Rejmanksi) 

Note: It’s for the trial judge to decide on balance whether the defence can be made (R V Christian); if so, the jury are to assume the defence is established unless the prosecution prove it’s not.   

Diminished Responsibility 

Special defence – only available to murder; partial defence – will reduce murder conviction to manslaughter 

1. Contained within S2 Homicide Act 1957 as amended by the Coroners and Justice Act 2009 

Defence is raised by the defence who must show it on the balance of probabilities, if successful, the trial judge will direct the jury the defence is met unless prosecution proves beyond reasonable doubt it’s not. 

2. Outline section: 2(1) An abnormality of mental functioning 

‘A state of mind so different from that of an ordinary human beings that a reasonable man would term it abnormal - R V Bryne.’  

3. Outline: 2(1)(a) arose from a recognised medical condition 

Medical evidence is a practical necessity – R V Bunch 

Does not include acute voluntary intoxication – R V Dowds 

4. Outline: 2(1)(b) substantially impairs 

Meaning of substantial impairment for the jury: 

‘Substantial does not mean total, nor does it mean trivial or minimal. It is something for the jury to decide – R V Loyyd) 

‘While an impairment must be more than merely trivial to be substantial, it is not the case that any impairment more than trivial will suffice.’ – R V Golds 

5. Decide which of the follow  of S2(1A) applies in that it affects the  defendants ability to: 

Relevant subsections 

Explanations 

2(1A)(a)To understand the nature of their conduct 

D needs to understand what they’re doing, but may not understand the severity, ie: a child who kills thinking someone will respawn understands they’ve killed V, but not the nature of the killing as they think V will respawn.  

2(1A)(b)To form a rational judgement 

Not defined in the 2009 Act and so for the jury to determine considering all relevant circumstances before and after the killing, IE an abused spouse killing their partner believing it will rid the world of their sins.   

2(1A)(c)To exercise self-control 

Similar to loss of self-control, but wider, and includes a person being unable to control themselves – ie incontrollable desires (See: R V Byrne).   

6. Explain whether the actions under 2 (1)(c) provides an explanation for D’s acts or omissions relating to their role in the killing. 

D’s condition must provide some causal link between why the killing occurred and their condition; sometimes referred to as ‘going full circle.’ 

(optional) Alcohol and diminished responsibility 

Voluntary intoxication 

Involuntary intoxication through alcoholism:  

ADS (alcohol dependency syndrome) 

Intoxication alone is not enough – R V Dowds 

Where D already has a recognised medical condition, it can be pled, but the jury must ignore the effect of the alcohol on their medical condition (R V Kay) 

1. Was D suffering from an abnormality of mental functioning?  The jury will consider all of the evidence – focusing on their ADS. Just having ADS is not enough on own; the nature and extent are considered.  

2. Was the abnormality caused by the ADS?  

3. If so, was D’s mental responsibility substantially impaired to do something in S1(A)(a-c)   

4. Is there a causal link between this and the killing? 

If all satisfied, D can use the defence. (R V Stewart)  

Gross Negligence Manslaughter 

Can be fulfilled by act or omission and involves negligence so bad that it should be deemed criminal (Adomako)  

Requirements set out in R V Broughton 

Actus Reus  

1. A duty of care must exist (As established in Robinson V CCWYP) – this is a question of law for the judge.  

• Unlike tort, criminals can owe duties of care to others participating in illegal acts (R V Wacker).  

• Duties can also arise if the criminal creates a dangerous situation (R V Evans) 

2. D breaches duty (D fails to reach the standard of the reasonable man (Blythe V Birmingham waterworks Co) – objective test.  

3. At the time there was a serious and obvious risk of death; personal injury is insufficient 

Serious risk – A high likelihood of happening – not some remote possibility (R V Rudling)  

Obvious risk – A present risk which is clear and unambiguous, not one which might become apparent on further investigation (R V Rose) 

4. It was reasonably foreseeable at the time the breach gave risk to an obvious and serious risk 

Remember, this is judged from the objective person with D’s qualities.  

A risk may have been obvious at the time, but the reasonable person in the shoes of D would not have foreseen the obvious and serious risk of death this step will not be satisfied.  

5. The breach caused or significantly contributed to death 

Normal rules of causation, but be sure to consider from the breach. For example, if D, a gas engineer, fails to fix a boiler and toxic fumes kill V,  but for D’s negligence V would not be dead and so factual causation is established.   

Mens Rea: 

6. The negligence must be sufficiently gross; the jury must regard it as so bad it becomes criminal.  This is beyond mere negligence or a mistake (R V Sellu) and is a hard threshold to meet.   

Unlawful Act Manslaughter 

Actus Reus:  

1. Must be a completed unlawful act (R V Lamb); it does not matter what the unlawful act is as long as it’s an act which his unlawful.  

• Unlawful Act Manslaughter cannot be committed via omission (R V Lowe). 

• The Unlawful Act need not be directed at V (R V Larkin);  This means it can be directed at property (R V Goodfellow) 

2. The act must be objectively dangerous (this does not take into account any of D’s characteristics).   

‘All sober and reasonable people would inevitably recognise the risk of some harm, albeit, not serious harm’ – R V Church 

• Some harm in this context means more than fear or distress (R V Dawson) 

• There must be the risk of some physical harm though the precise form the harm takes need not be foreseen (R V JM and SM).   

Key considerations for jury:  

• When assessing objective danger, the jury is to assess only with D’s knowledge at the time – R V Dawson 

• A victims’ individual circumstances may make them more predisposed to physical harm and this can be taken into account i.e., those with advanced age or heart conditions – R V Watson  

• An act, not originally dangerous, can become dangerous later if the circumstances change (R V Bristow, Dunn and Delay).  

• If the act is not objective dangerous then there’s no need to consider causation – this is equally the case with the thin skull rule.  For example, if I run into a classroom and shout I’m gonna smash someone’s head in and someone dies of fright this is not objectively dangerous – the reasonable person would not foresee the risk of some physical harm.  

3. D’s unlawful act must cause D’s death applying the ordinary rules of causation.   

• Where V voluntarily self-injects drugs the chain of causation is broken (R V Kennedy (No.2) 

• Where D’s unlawful act cannot be proven to have caused the death there is no unlawful act manslaughter (R V Watson) 

Mens Rea:  

4. D has the mens rea for the original criminal act 

• this need not relate to the death not does it need to be aimed at V – it could have, for example, been aimed at property (DPP V Newbury Jones)  

• There is no need for D to have foreseen death at all.  

Theft: 

1. Theft Act 1968, S1: definition of theft 

Theft Act 1968, S1: “A person is guilty of theft if he ²dishonestly ³appropriates ⁴property ⁵belonging to another with ⁶the intention of permanently depriving the other of it. 

Actus Reus 

2. Theft Act 1968, section 3: Appropriation 

• D assumes any rights of the owner (does something the owner has the right to do) (R V Morris). 

• Appropriation does not require D to take physical ownership – assuming a right to sell (Pitham V Hehll)  

• Even if V consents to the appropriation it’s still appropriation (R V Gomez); this remains the case for gifts (R V Hinks) 

• Appropriations happen at the moment a right is assumed and so the initial appropriation is not a continuing act (Atapuku and Abrhams); however, new appropriations -such as disposing of property, can constitute appropriation for coincidence (R V Vinall) 

3. Theft Act 1968, section 4: Property 

There are five types of property:  

1. Money 

• All physical coins, notes or currency. 

2. Real Property 

• Is land.  Land generally cannot be stolen, unless under:  

• S4(2)(a) – The land is stolen as a breach of trust (think Bridgerton – you own the land for someone until their 18, but sell it before they get it)  

• 4(2)(b) – Causing, severing or causing to be severed anything forming part of the land as a trespasser (i.e., stealing your neighbours rose bush) 

• S4(2)(c) – as a tenant (a renter) appropriating any fixture or structure let to be used with the land (i.e., stealing the landlords shed). 

3. Personal Property 

• Anything that a person can pick up and move around.   There are some things to be aware of here:  

• Dead body parts are usually not property, but can be reduced to property if used in educational purposes for example (R V Kelly and Lindsay)  

• Wild foliage (fruits, fungus mushroom etc.) are not property unless done for reward or commercial purpose (usually means selling) (S4(3)).  Taking any cultivated (deliberately planted stuff is capable of being stolen).  

• Wild animals are regarded as property, but cannot be stolen unless their reduced to property (this can happen in a variety of ways, i.e: capturing, taming, or confining the creature).   

• Confidential information itself is not property (Oxford V Moss), but the paper it’s written on is (R V Akbar) 

• Electricity is not property – there’s a separate offence for this.   

4. Things in action – A personal right of property that can be enforced (Debt, rights arising under trust etc, Cheques).   

5. Intangible property – Data in computer games, bank account value, patents 

4. Theft Act 1968, section 5:  Belonging to another 

There are three ways that property can belong to another:  

1. Possession – you physically have it.  

2. Control – You are able to control the property.   

• Control does not require you to know you have the property, i.e. I think I’ve got rid of something but haven’t and someone takes it (R V Woodman 

3. Propriety interests – you still own the property (Even if you don’t have control of possession of it (think library books)) 

• This was seen in R V Webster where the MOD retains a propriety right in its medals 

• If something is left out for someone else to collect it remains the leavers property until the person their giving it to (intended recipient) takes it (R (On Application of Ricketts V Basildon Magistrates Court); this also means if you take from a bin it’s theft!) 

Note:  

D only needs to assume one these rights for theft, which means you can steal your own belongings if someone else is meant to have control, i.e. I take my car from a garage without paying for repairs: I have a propriety interest but have taken the right of control and possession away from the garage (R V Turner (No2)) 

Under S 5(2) Property in the possession and control of D can belong to another if it’s held under trust.  

Property received under obligation (S5(3) 

• If you’re given property with very clear instructions of what you must do with it you must do it (Davidge V Bennett);  if the instructions are not clear enough then there may not be an obligation (R V Hall) – the courts will establish this as a matter of fact.  

Property receives by mistake (5(4) 

Where you receive property by mistake the property continues belong to another (AG Ref No 1 of 1983);  providing there’s an obligation to return it (R V Gilks).  

Mens Rea Of Theft 

5. Theft Act 1968, section 2: Dishonesty  

• S2 does not define dishonesty, rather it says what is not: 

2(1)(a) – D appropriates the property believing they have a genuine right to deprive the other of the property on behalf of themselves or another.  

2(1)(b) – D appropriates property believing the other would have consented had V known of the circumstances of the appropriation.  

• Often, this can be based around parents and children; a child does not have bus money – so takes it from their parent’s draw - its probably likely they’ll believe 

2(1)(c) – D appropriates property believing that the person to whom the property belongs cannot be found by taking reasonable steps.  

Things to note: 

• Beliefs need to be honest: they do not need to be reasonable (R V Holden; R V Small) 

• Providing D has the genuine and honest belief to the property in the circumstances this can apply (i.e., picking up a £5.00 note after an argument) (R V Robinson).  

S2(2) – An appropriation of property can remain dishonest even where D is prepared to pay for the property.  

Common Law test for dishonesty:  Ivey V Genting Casinos (which is a civil case):  

1. What was D’s knowledge or belief at to the facts (subjective – based on what D thought)?  

2. Based on this knowledge/ belief, was D’s conduct dishonest based on the standards of ordinary decent people (objective)? 

This was adopted in the case of R V Barton and Booth (which is a criminal case) 

6. The Theft Act 1968, S6: intention to permanently deprive.  

Intending to permanently deprive is usually obvious, but:  

• It can mean treating the property as your own (Marshall) – providing that you take it for so long that the property no longer has value (R V Lloyd).   This often applies in the context of borrowing items (i.e., taking a concert ticket and replacing it the day after the concert)  

• Remember, with money the law treats individual notes/coins as distinct property – therefore you need to intend to replace the exact 5.00 note otherwise is an intent to permantly deprive (R V Velumyl) 

Intending to deprive and disposal 

• Where D disposes of the property the facts of the case may be suggestive as to whether or not they intended to permanently deprive; The Chief Constable of Avon and Somerset Constabulary V Smith).     Remember the disposal may be a separate appropriation ( 

Conditional intent (I only want to steal something if it’s valuable) 

• If D intends to steal, but only if there’s something of value, it’s not theft (R V Easom).  However, D can be charged with attempted theft of anything of value.   

Robbery 

Theft Act 1968, S8 definition of robbery 

Definition: S8 Theft Act 1968: “A person is guilty of robbery if he steals and immediately before or at the time of doing so, and in order to do so, he uses force on any person or puts or seeks to put any person in fear of being then and there subjected to force.”  

Actus Reus 

1. There must be a theft 

• There must be a completed theft for robbery (R V Waters) 

• The theft is a technical theft – D need not escape with the property (Corcoran V Anderton)  

2. There must be the use of force/ or threat of it.  

Uses of force:  

• ‘Force is an ordinary English word’ – R V Dawson and James.  

• It is a question for the jury and can be applied indirectly (i.e. grabbing a bag and not touching V) (R V Clouden) 

• but it must be more than superficial force, i.e. pickpocketing (P V DPP). 

Threats of force: 

• The threat of force may be implied and need not fear it just needs to be capable of apprehension by D (B and R V DPP) 

3. On any person 

• Force or the threat of it can be used on any person to satisfy this part of the actus reus 

4. Force or the threat of used immediately before or at the time of the theft and in order to steal 

• The courts have treated theft as a continuing act and therefore tying a person up has been considered at the time of the theft (R V Hale) 

• Whether the theft is completed prior to the force being used is a question for the jury (R V Lockley)  

• However, note: it must be in order to steal.   If punches someone, they drop something and V opportunistically picks it not a robbery it’s a non-fatal offence and a theft.  

Mens Rea 

5. Mens rea for theft 

• D needs to have the MR for theft (R V Waters).  In an exam, DO NOT GO THROUGH THE MR FOR THEFT JUST SAY IT’S THERE.  

6. Intent to use force or threat of force to steal 

• D must intend to use force to steal;  

• An accidental use of force while stealing would not be robbery.  

Burglary 

Theft Act 1968, S9  

• S9(1)(a) – entering a building or part of building as a trespasser with intent to commit theft, inflict GBH, or commit criminal damage.  

• S9(1)(b) – having entered a building, or part of a building, as a trespasser, stealing or attempting to steal or inflicting or attempting to inflict GBH.   

Actus Reus 

1. Entering a 

• Entry has to be effective (R V Brown)  

• Question for the jury: was D inside (this can be as simple as an arm or a leg being inside the building) (R V Ryan) 

2. Building 

• S9(4) includes inhabited vehicles and vessels such as houseboats or caravans.   However Common Law then added to it:  

• ‘A structure of considerable size and intended to be permeant or at least endure for a considerable time’ (Stevens V Gourley) 

• This is a question of fact and law, but for example, a trailer with wheels is less likely to be a building because of it’s lack of permeance (Norfolk Constabulary V Seekings and Gould)  

Parts of buildings:  

• Covers situations where D has permission to be in one part of a building, but not another (R V Walkington).  Think about the fact students are not allowed in the staffroom.  

• Out buildings, such as sheds,  still constitute part of a residential building (R V Rodmell)  - the sentencing, however, is different.  

3. as a trespasser  

• This is usually fairly obvious 

• Note D can be a trespasser if they go beyond the permissions they’re allowed to be in the building for (R V Jones and Smith)  

Mens Rea:  

4. D must intend or be reckless as to the fact that they are a trespasser 

• Where D is invited into the property by someone who has permission to be there they did not intend nor can be described as being reckless as to whether or not they’re trespassing (R V Collins) 

5. Choosing the correct charging section:  

S9(1)(a): At the time of entry to the building or part of it D already has the intention to commit:   

Theft, Grievous bodily harm or Criminal Damage 

Conditional intent (i.e. intending to commit GBH if someone is there is sufficient for this).  

S9(1)(b) 

After entering the property, D commits or attempts to commit: Theft, or GBH.  

This means D must have the MR for that particular offence.