Criminal Law -

Outline for Research:

  • Feminist Perspectives on Criminal Law by Nicole Larry

A criminal law must have an actus reus (which is an act done voluntarily) and a mens rea (This is the mental element that deals with a guilty mind). Glanville Williams appreciaes that there is a general rule to criminal law that applies to most criminal cases. For instance, there is an Actus Reus, a Mens Rea and defences. He also argues that there are specific parts like Homocide, Offence against the Person and Theft.

General Principles

  • Even the most absolute principles get moved to one side

  • It is important to look at pffences and be able tobreak it down

It has been pointed out by ‘Lord Diplock’

The difference between the Mens Rea and the Actus Reus

Break it down: What does the prosecution need to prove in relation to the Actus Reus and Mens Rea. Most offences can be broken down into actus reus and mens rea.

The Actus Reus:

The Actus Reus is everything that makes uo the crime except the mens rea. Everything else you need to prove. The actus reus can take many forms, sometimes conducts and result/consequence. These include:

  • A Conduct: This is when a person uses threathning words of behavious, or displating any wrtten material. (Public Order Act 1986, s29B)

  • A Circumstance: Using the Misuse of Drugs Act of 1971, section 8, They determined that an actus reus is when a person commits an offence, if being the occupier or concerned in the management of any premises.

  • Consequences: Founf in OAPA 1861 that whoevere shall be convicted of indictment of any assault ocassioning Actual Bodily Harm

  • State of Affairs: case of Winzar v CC of Kent that being found drunk on the highway makes you liable as being “found” means being “percieved to be”

The Mens Rea

When it comes to Mens Rea you are looking forthings that refer to their state of mind. “Reasonable belief” what the individual ““intend” etc.

Mens Rea usually has to with: Intention, Recklessness, Negligence and Strict Libility.

‘Mens rea is the (not entirely happy) umbrella term used by most criminal law scholars to refer to a range of practical attitudes of states of mind on the defendant’s part, which form part of the definition of many offences’.

Nicola Lacey, 'A Clear Concept of Intention: Elusive or Illusory? [1993] 56 Modern Law Review 621

Mens rea distinguished from premeditation and motive:

‘the law of murder does not distinguish between murder committed for malevolent reasons and murder motivated by familial love.’

(R v Inglis [2010] EWCA Crim 2637)

The two different approaches include:

  • A subjective approach examines what the defendant himself was thinking

  • An objective approach examines what a hypothetical reasonable person in the position of the defendant would be thinking

*Sometimes criminal law incorporates elements of
subjectivity into an objective approach, for example
by attributing certain characteristics of the
defendant to the reasonable person.


When it comes to intention, there are levels to it:

  • Direct intention: the consequence that ‘you are aiming at’

  • Indirect or Oblique intention: ‘something you see clearly, but out of the corner of your eye’. There are 2 key questions to ask: Do you have to be able to foresee the side effect? If yes, how clearly do you need to see that side effect? Does it have to be certain to occur? Does it have to be virtually certain to occur? Or does it have to be merely probable?

It needs to be foreseen as being virtually certain

‘the jury should be directed that they are not entitled to find 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.’
R v Woollin [1998] AC 82

Recklessness
The law on recklessness is not subjective. Recklessness is part of Mens Rea and is described as a risk someone takes knowlingly. This was confirmed in R v G (2003).
* Whether sometime is a risk is always an objective test weighing up the social utility or value of the activity against the probability and gravity of harm which might be caused.

  • In Caldwell v MPC [1982] AC 341, it was held that D did not need to foresee the risk. The test was objective

  • R v G [2003] reversed Caldwell. The test is now subjective in that D needs to foresee the risk (determining what is a risk remains objective)

Negligence

You are negligent if you fail to act in conformity with what is reasonable. The question is whether the defendant did what the reasonable person would have done in those circumstances. If not, they are negligent. We will explore negligence further in discussion of involuntary manslaughter.

Causation

The breakeage in chain depends on the level of forseeability. There are two tests for the causation that the prosecution needs to prove that include:

Cause in Fact - Factual Causation:

  • The ‘but for’ test: would the death have occurred but for the acts of the

    defendant?

    If death would have occurred anyway, then no factual causation

    R v White [1910] 2 KB 124: defendant put cyanide in mother’s drink intending to kill

    her but she actually dies of heart failure not poisoning. No legal causation.

Compare:
R v Mitchell [1983] QB 741 – the defendant had shoved
a man who fell onto a woman who had a hip problem.
The woman went to hospital but when they set her hip,
a blood clot killed her. It was held that Mitchell had
caused the death. The woman would not have
needed hospital care but for the actions of the
accused.

Cause in Law - Legal Causation:

  • There must be a sbstantial cause. In R v Cato 1976: It shows that there must be a contributory factor. I doesnt need to be the sole or overwhelming cause. (‘substantial’ means as often in law)

  • No break in the chain of causation by the victim, third party of natural events. Generally speaking, actions by the victim do not affect the crimnal liability, because ‘but for’ the actions of the defendant, the victim would not suffer.

By the Victim:

  • R v Blaue shows that the defendant must take the victim and they find them. It os refered to as the think skull rule. An example of this is if the vicitm has an original injury. It does not always include their medical injury, it could also be a religious thing. as in R v Blaue where for religious reasons, the victim prohibited him from accepting certain treatment. In addition, jumping out of a moving car to avoid an assault does not break the chain of causation does not break the chain of causation as ‘but for’ the defendants actions, the victim would not have needed to jump out of the car like in R v Roberts 1971.

R v Kennedy [2007] UKHL 38 : The legal chain of causation is only broken where the victim is an informed adult of sound mind and their actions are free, deliberate and informed.So, a drug dealer would still be liable for

the death of the victim:

If:

  • V is not an informed adult of sound mind whose actions are free, deliberate and informed

Or:

  • D performs an act beyond supplying the drug to V

Applying Kennedy

  • R v Field [2021] EWCA Crim 380: where V is being deliberately led
    into a dangerous situation by someone who pretends to be
    concerned about his safety, then that is not a free, voluntary and
    informed decision and so D is liable for murder

  • R v Rebelo [2021] EWCA Crim 306: where V purchased ‘food
    supplements’ advertised as such online but which were actually
    dangerous chemicals then she ‘did not make a fully free, voluntary
    and informed decision to risk death’. D’s conviction upheld
    Smith, Hogan and Ormerod: these judgments are ‘difficult to defend;
    on a ‘strict application’ of Kennedy

  • R v Wallace [2018] EWCA Crim 690: D attacked V. V survived but
    moved to Belgium where he decided to end his life in a euthanasia
    clinic (lawful in Belgium)
    Crown Court held that causation could not be found on these facts
    Court of Appeal held that causation was possible and ordered
    retrial. Focused on foreseeability and voluntariness

By Third Parties:

If something is forseeable by third parties, th chain of causation will not break the chain of causation. R v Paggett (1983) 76 Cr App R 279 : D used girlfriend as ‘human shield’
to stop police from shooting him. Police shot and killed girlfriend. D
held liable – police fire had not broken the chain of causation because D had cused the police to fire (in self-defence).

Incompetent Medical Treatment - Case Law

  • R v Jordan (1956) 40 Cr App R 250: D stabbed V but medics treating V injected V
    with same erroneous drug twice. Held that this broke the chain of causation.

  • R v Smith (1959) 2 QB 35: Here D stabbed V in barrack room brawl. V dropped twice by
    another soldier taking him from room. V also suffered medical negligence. Held
    this did not break the chain of causation.

  • R v Cheshire [1991] 1 WLR 844: D shot V. V taken to hospital, developed
    respiration problems given a tracheotomy tube. Two months later died due to
    obstruction of the windpipe due to tracheotomy tube. Surgeon noted that
    wounds caused by D no longer life threatening at time of death and that death
    had been caused b y negligent medical treatment. Held that this did not break
    the chain of causation since medical complication still a direct consequence of D’s
    acts, shooting still a significant cause of death.


Finally, Natural Events may break the chain of causation:

  • Unpredictable natural events will break the chain of causation

  • Foreseeable natural events will not break the chain of causation

It is important to point out various other case laws and compare and contrast the contents and out come of the case.

Some Other Points to Remember
✓Actus reus and mens rea varies from offence to offence.
✓All elements must be proved.
✓Actus reus must be voluntary.
✓The actus reus and mens rea must coincide.

How do the courts get around the coincidence rule?
The courts use one of three ways which include:

Continuing Act Theory: Fagan v Met Polics Commissioner 1969). The opposite scnario is R v Church

One transaction Principle: (R v Latimer (1886) 174 QBD 359
Where an offence targeted at a particular individual or piece of property results in injury or damage to another person or piece of property, we can say that the mens rea is transferred. So, if A intends to kill B by shooting her but misses and shoots C then we can still find A liable for the killing of C.

  • Transferred Malice