English Criminal Law

8/6/2019 English Criminal Law

1/8

English Criminal Law

This book was started for use by anyone wishing to gain background knowledge of criminal law or indeed anyone who

s studying criminal law. It is aimed at an A-Level audience, who have prior knowledge of the legal system, to provide

light read along with some of the more precise & heavy books available.

This book uses several conventions which are assumed to be known to the intended audience of this book.

What constitutes a Crime

The layman's answer would be something along the lines of actions that are in opposition to the laws (statutes) that

overn the country. Law students who begin their studies in Criminal Law will grow to realise that a "crime"

onstitutes many facets which go beyond the "bad act" itself (the actus reus). In looking at whether a person is acriminal", one has to look at the mental state the person had while committing the crime(his "mens rea"). It would be

worthwhile to remember that every person charged with a crime is presumed innocent until proven guilty.

Basic Principles of Criminal Law

Procedural Issues

Criminal law is based on the theory that the defendant is innocent until proven guilty. In the England and Wales it is

he job of the Crown Prosecution Service (CPS) to prove the guilt of the accused in most cases. It is the job of the

defendant's solicitor or barrister to prepare and submit a defence. This is done in court by testing the strength of thevidence against the defendant using methods such as discrediting witnesses or challenging the legality of evidence

.g. a stop and search carried out by a police constable was not lawful according to the rules under section 2 of the

Police and Criminal Evidence Act 1984. The court must be satisfied that the defendant is guilty beyond reasonable

doubt before a conviction can be achieved. All of these elements are derived from the Rule of Law which exists to

rotect personal liberty, an idea originally conceived by Dicey (http://en.wikipedia.org/wiki/Dicey) .

t is obvious to see that in theory, if not entirely in practice, it is hard for the accused to be convicted of a crime; more

mportantly a crime that the accused did not himself commit. This may seem weighted too far on the side of the

ccused. However, it is answered by a basic principle of English criminal law: "it is better to release five criminals

han it is to convict one innocent".

Actus Reus & Mens Rea

ntroduction

n order to establish whether a criminal offence has been committed, we must first establish what the components

often known as "elements") of that offence are. As an example, Theft is defined in s. 1 Theft Act 1968: A man shall

e guilty of theft if he dishonestly appropriates property belonging to another, with the intention to permanently

deprive the other of it, and thief and steal shall be construed accordingly." We can distinguish five elements to this

ffence: (1) dishonesty, (2) appropriation, (3) property, (4) belonging to another, and (5) intention to permanently

deprive. All five of these elements must be present at the same time (see below) for the offence to be committed.

Page 1 of 8English Criminal Law - Wikibooks, open books for an open world

6/15/2011http://en.wikibooks.org/wiki/English_Criminal_Law


2/8

Every element of an offence falls into one of two categories: actus reus (latin for "guilty act") and mens rea (Latin for

guilty mind"). Most criminal offences contain both actus reus and mens rea elements. These are known as crimes

with fault liability. Other offences, known as strict liability, require no guilty mind, or mens rea element. In these

ases, the crime is committed simply by commission of the act. An example of a strict liability offence would be

driving without valid insurance.

A crime can only be committed where both actus reus and mens rea occur at the same time. In some circumstances,

his rule has been widely interpreted to include offences which the law is clearly intended to protect against. Thus in

Fagan v. Metropolitan Police Commissioner, when the defendant parked his car on the foot of a traffic policeman by

ccident, he could not be found guilty of a crime, since he did not have the requisite mens rea at the same time as the

ctus reus. However, the court interpreted his failure to move the car as a 'continuing' act, which coincided with his

knowledge and therefore intention to harm the policeman. Fagan was thus guilty of a crime.

Actus Reus

Actus reus refers to the physical parts of the crime (the guilty act) We can categorize the actus reus elements of arime into three types: conduct, consequences, and circumstances.

As an example, consider the definition of theft stated in the introduction. The actus reus elements of theft are

appropriation" "property" and "belonging to another" . As you can see, there is no requirement of a consequence - so

t doesn't matter whether, for example, the accused actually managed to get away with the property - theft is

ommitted if there is an appropriation of property belonging to another together with the required mens rea elements.

An example of a crime which does require a consequence is murder - murder is not committed unless the accused's

onduct results in a death.

Causation

For any defendant to be convicted of any crime, causation must be proved. In practice, this is rarely demonstrated

ince most causation is obvious and uncontested. If A punches B in the face, there is no necessity for a legal argument

o prove that the actual bodily harm suffered by B was caused by A. However, in some cases, it may be questioned

whether the acts of the accused did cause the result.

When considering causation, there are five tests to determine whether causation can be established. Two of these are

he tests of factual causation (Did the conduct actually cause the result) and the other three are tests of legal causation

Is the defendant to be held legally responsible for the consequences).

Factual Causation

The 'But-For' Test

The first test of factual causation poses the question "But for the actions of the defendant, would the result have

ccurred?". Paraphrasing, the court is generally trying to discover whether the consequence would have resulted

egardless of the accused's actions. If the answer to this question is no, and the result could only have occurred due to

he actions of the defendant, factual causation is one step towards established. If the answer is yes, and the result

would have occurred anyway, then factual causation is not established.

A case demonstrating this is R v. White, 1910. The defendant in this case, laced his mother's drink of milk withoison, however she did not drink it,but died later anyway. It was later revealed that she died due to a heart attack.

Since his mother would have died regardless of the fact that he poisoned her drink, White was acquitted of murder.

Factual causation had not been established.




3/8

The 'De-Minimus' Principle

The second test for factual causation is the requirement that the defendant's actions must be more than a minimal cause

f the result. An example could be that A pushes B into a main road. C is driving towards B at great speed and B

umps to the kerb and slips, spraining his ankle. A cannot fairly be held liable for the spraining of B's ankle. Though

his actions were a direct cause of the result, they were no more than a minimal result.

A case where the De-Minimus case was used to establish factual causation is R v. Pagett, 1983. Here, Pagett was

scaping some armed police whilst also firing back at them. By trying to escape and hide from then he ran up to his

lat where his heavily pregnant girlfriend was and used her as a shield against the police. He was found to have

actually caused the girls death, as his actions of firing on the police were more than a minimal cause of her death.

NB- R v. Pagett, 1983, is also a case used to demonstrate the 'But For' Test

egal Causation

The three tests for establishing legal causation are the 'Thin Skull' test, Operative and Significant Cause, and Novus

Actus Interveniens.

The 'Thin-Skull' test

Less a test, and closer to a principle, the 'thin skull' test merely applies the doctrine that a defendant must "take his

ictim as he finds". The test is called the 'thin skull' test because of the standard example quoted, though it is not

known whether the phrase is coined from an actual case.

Where a victim, A, suffers from a condition which renders him more susceptible to injury than a non-suffering

ounterpart, B, he should not suffer unequal protection from the law.

Where a victim has a 'thin skull' or other condition or circumstance, it may be the case that he suffers an injury that a

erson not affected by such a condition would not suffer. Were a defendant to strike someone around the head, for

xample, a victim with a thin skull may suffer brain damage while the average person might suffer no injury at all. The

hin-skull test seeks to attach liability to those defendants who, in terms of public policy, should not escape liability

ased on the individual's characteristics.

n Regina vs. Blaue, 1975, the defendant, who had entered the victim's house and stabbed her four times, was found

uilty of murder when the victim, a Jehovah's witness, refused a blood transfusion which would have saved her life.

Though evidence showed that the wounds would not have otherwise proved fatal, Blaue was convicted on the grounds

hat he had legally caused the victim's death.

Operative and Significant Cause

Novus Actus Interveniens

s causation a purely matter of law?

As outlined above causation in criminal law is understood as a chain of events linked to each other - it is a link

etween the defendants act and the consequence which occurred as a result of that act. As causation represents an

ntegral element of result crimes - the one to be proved, the law developed certain tests to establish it. They represent a

wo-stage process or two tests to be applied in succession. The first test is factual causation and the second one is legalausation.




4/8

Thus, it is seen from the outset that causation is effectively a mixture being a question of fact and a question of law at

he same time or, in other words, causation is a factual issue to begin the analysis and a legal one to finalise the

indings. At the same time, it is arguable that legal causation itself is a facade of a chosen approach to allocating

lame. Indeed, it is submitted that criminal law itself is a mechanism for allocating blame. In turn, allocation of blame

s a process which is almost inevitably based on moral and policy considerations.

Causation in English law: A matter of law, of fact or morals (a way of allocating blame)? (http://www.russian-

ervices.com/articles/)

iability for Omissions

Generally, the law of England imposes no criminal liability for omissions - there is no general duty to act. If, for

xample, a person walking along the beach one day sees a drowning child in the water, he is under no legal duty to

ntervene, even if it would be easy for him to do so.

There are a number of exceptions to this rule, however. The first of these are that there is a recognisable duty to actmposed by law where there exists a special relationship between the parties, such as a parent's duty to care for his/her

hild. A duty can arise through contractual relationships (R v. Pittwood, 1902), or can also arise through one's own

onduct. For example, in R v. Miller, 1982, the defendant was held liable for the criminal damage to a building caused

y fire. Miller, a vagrant, fell asleep in a disused property and dropped a lit cigarette onto a mattress. When he awoke

o find the mattress smouldering, he simply moved to another room. Legally, he was bound to act since the dangerous

ircumstance was of his own creation, and his omission was therefore criminal. Criminal liability for omissions, has in

he past, been held to include doctors who have not acted after taking the Hippocratic Oath.

Mens Rea

The mens rea of a crime is made up of those elements which relate to the state of mind of the accused. In our example

f theft, the mens rea elements are "dishonesty" and "intention to permanently deprive". Mens rea elements are often

harder to spot in legislation as the words are adjectives, generally non-standard and emotive. Examples might include

dishonest", "intentionally", "fraudulently", or "knowingly". The three types of accepted mens rea elements are

ntention, recklessness or negligence.

ntention

Criminal intention can be further broken into two groups, direct and oblique. A direct intention is the willful desire to

ommit an act. It must be understood that the intention sufficient to amount to mens rea is only the intention to

erform the required criminal act, not an intention for the result to occur. Assault occasioning actual bodily harmSection 47 of the Offences Against The Person Act 1861) is a good example here. The requisite mens rea is intention

o cause assault. If A intentionally assaults B and harm results, he is guilty of the offence. The fact that he does not

ntend harm is irrelevant. He intended to do the act, and harm is simply a by-product.

Oblique intention, also known as indirect intention, refers to a knowledge or belief that a consequence is a virtual

ertainty, and acting with this in mind, although the result may not be intended. To explain further: A intends to punch

B, but they are separated by a pane of glass. His intention to punch B is direct as he desires to perform this act.

Breaking the glass in pursuance of his goal amounts to the actus reus of criminal damage, but A does not desire for

his to take place. Since punching B will inevitably result in breaking the glass, it is a virtual certainty. therefore, in

unching B, A had oblique intention for criminal damage - He appreciates that it will happen, and although does notdesire it, continues to act regardless.




5/8

Recklessness

ntention will be more clear from an example: suppose that a man has many desires, some of which are deemed to be

oo visionary, some he lacks the energy to implement. But if he decides to achieve his desires, and begins to start to act

o that end, the desire becomes the intention with which he acts.

Negligence

Transferred Malice

The doctrine of 'transferred malice' operates when there is an unexpected divergence between the defendant's mental

tate and the occurrence of the actus reus. The mens rea is regarded as transferred when this divergence is immaterial

o the definition of the offence. Thus, if D fires a gun intending to kill T but misses and kills V instead, the fact that

V's death was unintended does not preclude D's liability for murder. It is sufficient that D intended to kill a person

he identity of that person is irrelevant to the offence definition. Compare this with the situation where D's bullet,

nstead of hitting T, breaks a window of the nearby house. Here the intention to kill a person cannot be 'transferred' tomake D guilty of criminal damage an offence with a different mens rea requirement.

Strict iability

Sometimes the legislature departs from the maxim actus non facit reum nisi mens sit rea by creating offences of strict

iability. The liability is said to be strict when there is no mens rea requirement in relation to one or more elements of

he actus reus. For example, under the Sexual Offences Act 2003 the offences involving children under 13 do not

equire any mens rea on the part of the defendant as to the age of the child (R v. G [2006] 2 Cr App R 17). Here the

rosecution needs only to prove that the defendant intentionally committed the relevant acts and that the victim was

under 13; his genuine or otherwise reasonable belief that the child was older is irrelevant.

n English law most strict liability offences are statutory, with few common law exceptions such as contempt of the

ourt and criminal libel.

Complicity

The Criminal Liability of Corporations

Corporate criminal liability occurs either through direct liability or vicarious liability.Direct liability needs a directing

mind and will. Direct liability tends to focus on more srious offences requiring the establishment of mens rea,

ncluding secondary offences of aiding and abetting, counselling and procuring. Vicarious liability occurs on the basis

f 'respondeat superior' or 'let the master answer'.

The recent statute enacted on July 26, 2007 , Corporate Manslaughter and Corporate Homicide Act v2007, is the

riminalisation of corporate liability, especially with regard to health and safety offences.An organisation will be

uilty of an offence if the way in which its activities are managed or organised causes a person's death, and amounts to

gross breach of a relevant duty of care owed by the organisation to the deceased.

The new Act brings in tough penalties for companies causing deaths of workers by negligent management in industry,r fatalities and injuries to passengers in public transport. Deaths in prison and police cells is part of the new corporate

manslaughter measures and organisations such as the Police Authority are classed as corporations.




6/8


7/8

Involuntary Manslaughter

n common law the term involuntary manslaughter refers to those instances where the defendant causes death

ntending neither to kill nor to cause grievous bodily harm. There are currently three types of involuntary

manslaughter - manslaughter by gross negligence, constructive manslaughter and killing with subjective recklessness

Constructive manslaughter1.

The defendant must have committed an illegal act that resulted in the death of the victim

1.Gross Negligence Manslaughter1.

Must owe a duty of care to the victim.

Non-Fatal Offences Against the Person

Assault- causing the victim to apprehend immediate unlawful force R v Ireland and Barstow (Section 39 of the

riminal justice act '88)

Battery- the application of unlawful force, which can be any touching the victim does not consent to- R v Thomas

Section 39 of the criminal justice act '88)

Assault occasioning Actual Bodily Harm- any assault or battery which amounts to ABH. This can be psychriatric and

hysical. Physical ABH must be more than trivial damage, and psychriatric ABH must be more than mere fear and

distress, and was defining in the case Chan Fook as 'any injury not so trivial as to be wholly insignificant'. (Section 47

f the Offences Against a Persons Act 1861)

Malicious wounding or causing grevious bodily harm (Section 20 of the Offences Against a Persons Act 1861)

Malicious wounding or inflicting grevious bodily harm with intent(Section 18 of the Offences Against a Persons Act

861)

Theft and Related Property Offences

efences

istake

ntoxication

Voluntary Intoxication is generally not a defense to the commission of crime.

Involuntary Intoxication, on the other hand, is an affirmative defense on which a defendant bears the burden of proof.

The defendant's burden of proof typically by a preponderance of the evidence, less than the prosecutions burden to

rove him guilty beyond a reasonable doubt.




8/8

Infancy and Mental Disorder Defences

Duress

Duress must be to ones property, family or ones self.

Self-defence and Necessity

Bibliography

Ashworth, A., Principles of Criminal Law (Oxford: Oxford University Press, 5th ed., 2006).

Lacey, N., Wells, C. and Quick, O.,Reconstructing Criminal Law (London: Butterworths, 3rd ed., 2003).

Simester, A.P. and Sullivan, G.R., Criminal Law: Theory and Doctrine (Oxford: Hart Publishing, 2nd ed., 2003).

Smith, J.C. and Hogan, B., Criminal Law (Oxford: Oxford University Press, 11th ed., 2005).

Williams, G., Criminal Law: The General Part(London: Stevens, 2nd ed, 1961).

Williams, G., Textbook of Criminal Law (London: Stevens, 2nd ed. 1983).

Online resources

British and Irish Legal Information Institute (BAILII) (http://www.bailii.org) - provides access to the most

comprehensive set of British and Irish primary legal materials. As of September 2006, it includes 74 databasescovering 7 urisdictions.

Judicial Studies Board (http://www.jsboard.co.uk/committees/criminal.htm) - resources intended to provideguidance, induction and continuation training to the judiciary.

House of Lords Judgments (http://www.publications.parliament.uk/pa/ld/ldjudgmt.htm) - html versions of allHouse of Lords judgments delivered since 14 November 1996.

Law Commission (http://www.lawcom.gov.uk/criminal.htm) - access to Law Commission Reports andConsultation Papers, as well as information about Law Commission projects in progress.

Office of Public Sector Information (OPSI) (http://www.opsi.gov.uk/legislation/index.htm) - provides access tothe UK legislation, starting from 1988.

Retrieved from "http://en.wikibooks.org/wiki/English_Criminal_Law"

This page was last modified on 6 March 2011, at 02:20.Text is available under the Creative Commons Attribution-ShareAlike License; additional terms may apply. SeeTerms of Use for details.


English Criminal Law

Documents

Transcript of English Criminal Law