- The physical element of a crime.
- It must be a voluntary act, so under the control of the defendant. This came from the case of Hill v Baxter.
- An actus reus can also be an omission which is the failure to act when the law imposes a duty to do so.
- the following 'duties' are recognised as omissions:
- Contractual duty as in R v Pitwood
- Where the defendant has an official position such as the off duty police officer who failed to stop a fatal attack on a victim in R v Dytham
- When the defendant created a dangerous situation and did nothing about it in R v Miller who could have tried to stop the fire he started or called the fir brigade.
- When the defendant assumed responsibility to look after someone in R v Stone & Dobinson
- When there is a duty through relationship in R v Gibbins & Proctor (legislation: Children and Young Persons Act 1933)
- An example where an omission is acceptable in the case of R v Bland when the doctor turned off the life support machine
- Mens rea is the mental element or 'guilty mind' of a crime that typically occurs at the same time as an actus reus.
- Each actus reus has its own mens rea, for example intent to kill or intent to deprive.
- There are two types of mens rea, intent and recklessness.
- Intent: Direct intent - when an action takes place that was planned or desired as an outcome.
- an example for this is the case of R v Mohan was pulled over by a police officer then ran him over and drove off
- Premeditation is only evidence for intent
- Indirect/oblique intent - this is when something is really obviously likely to happen as a result of the actus reus even if the consequence wasn't intended
- it can be determined by the virtual certainty test
- for example in the case of R v Hancock & Shankland the miners were throwing rocks to scare the workers and hit a car and killed 2 people - it was virtually certain this would happen even though they didn't intend to harm them.
- this was affirmed by R v Woolin where a man threw a baby across the room which was fatal to the baby - it was reasonably foreseeable that it would happen
- This is when the defendant saw an unjustifiable risk and took it without seeing the consequences of their action
- The case that established recklessness was R v Cunningham and was known as Cunningham recklessness that was dealt with objectively
- R v G & Another established subjective recklessness which considers as to whether the defendant(s) sees their action as reckless depending on their characteristics such as mental health like in R v Stephenson or in this case it was age.
- An offence without mens rea is strict liability.
- Factual - if the defendant's act was the factual cause of the consequence which is determined by the 'but for test' which asks:'but for the actions of the defendant, would the end result have occurred?' Examples:
- in R v Pagett the defendant's act of using a pregnant lady as a shield against bullets was the factual cause of her death but for the defendant not using her as a shield she would not have been shot and killed.
- in R v White the defendant's act of putting poison in the victim's tea was not the factual cause but for him not poisoning the tea the victim would have died of an unrelated heart attack anyway.
- Usually if there is no complicated factors then factual causation is only needed
- Legal - if the defendant's act was the significant and operating cause i.e the main cause but doesn't have to be the only cause
- in the case of R v Smith the defendant's act of shooting the victim was the significant and operating cause of the victim's death because although he sustained more injuries afterwards, the gunshot wound was the most serious and fatal injury.
- The harm must have been as a result of a guilty/culpable act: R v Dalloway
Novus Actus Interveniens
- A new intervening act can break the chain of causation as long as it is unforeseeable and overwhelming (serious) and will therefore compromise who is responsible for the outcome
- It can be broken in three ways:
- A natural or unpredictable event, for example an earthquake.
- The victim's own act
- For example in R v Williams the victim did break the chain of causation because he jumped out of a moving car as an overreaction to a passenger trying to steal his wallet. Because it was an unpredictable and serious event, it broke the chain of causation.
- However in R v Roberts the victim jumped out of a moving car to get away from harm so didn't break the chain because her reaction was understandable under the circumstances.
- An act of a third party
- In medical cases the act must be palpably wrong to break the chain.
- In the Case of R v Smith, the victim received chest compressions which caused internal bleeding due to broken ribs, however it did not break the chain as it was not as serious as the original wound.
- Similarly in R v Cheshire the victim died of complications in a tracheotomy procedure however it did not exceed the seriousness of the original stab wound.
Thin Skull Rule
Thin skull rule -
this is applied when the victim has special characteristics and states that the defendant takes the victim as they find them which weakens a novus actus interveniens seriousness
the case for this is R v Blaue where a patient died after refusing a blood fusion treatment as is was against their religion because they were stabbed by the defendant, so the defendant was responsible for their death.
- Smith v Leech Brain: Defendant employed a man with a precancerous condition, who had incurred a burn to his lip in the course of his employment. He later died from cancer. The burn was foreseeable, the defendant was liable from the mans death as he had to take the victim as he finds them.
- No mens rea is required in strict liability
- Usually in regulation offences such as parking, sale of lottery tickets or wearing seat belts
- The defining case for strict liability is Gammon V AG of Hong Kong
- if a statute clearly states that the offence requires intent or recklessness then it is 'truly criminal' and not strict liability so cases such as B v Dpp and Sweet V Parsley were not strict liability
- the presumption that mens rea is required can be displaced if the offence concerns matters of heath and safety.
- in Alphacell v Woodward the company was polluting local water supplies
- Pharmaceutical Society v Storkwain gave prescriptions with forged slips
- Callow v Tillstone sold dodgy meat even after vets approval
- Because all these cases were to do with health and safety, it was necessary to be strict liability to make an example of the companies to ensure the safety of the public (even though in Alphacell they were unaware) which is the point of strict liability, it's tough luck
- Smedleys v Breed - tin of peas contained caterpillar
- R v Blake - transmission of pirate radio interfered with radio waves that threatened public safety
Strict Libaility Advantages & Disadvantages
- Strict liability saves court time and it also saves money.
- It encourages compliance with the law as if business runs properly it will never occur.
- A person or company taking a risk in order to make a profit ought to be liable if the risk causes problems to others.
- It protects the public as certain activities must be prohibited for the public's good.
- For some offences it would be almost impossible to secure a convinction if guilty knowledge had to be proved, particularly where the defendant was a company.
- It is morally wrong to punish someone who has not voluntarily broken the law.
- The difficulty of proving knowledge could be dealt with by reversing the burden of proof.
- There is no evidence that strict liability does in fact raise standards of business practice.
- Many traders would be put out of business if strict liability laws were rigorously enforced.
- The doctrine of transferred malice applies where the mens rea of one can be transferred to another.
- When an injury intended for one victim falls upon an unintended victim for example, if you go to punch someone in the face (person A) and you accidentally hit someone else (person B), your mens rea of intent to hit person A is transferred to person B
- Leading case: R v Latimer where the defendant swung a belt at one person but instead hit another
- R v Pembilton shows that the mens rea cannot be transferred between crimes, i.e intending to batter someone cannot be transferred to intent to cause criminal damage
- R v Mitchell - man was pushed into lady in post office line
- Typically, a criminal offence has actus reus and mens rea occurring at the same time from start to finish
- Contemporaneity is when they occur at different times, for example your mens rea occurs when planning to stab someone in the morning and then you run them over in the evening (actus reus occurs) - they did not occur from start to finish but the occurred at the same time
- It was considered in Fagan v MPC when the actus reus of battery started when the defendant parked on a police officer's foot which was accidental and unintended therefore had no mens rea until he refused to move the car and walked away with intent to cause the battery whilst the actus reus continued - (Coincidence by continuing act)
- in R v Thabo Meli, the defendant had the mens rea to kill to begin with but the victim first suffered multiple injuries and eventually hypothermia before he died so the actus reus that matches the defendant's original mens rea of intent to kill occurred lastly when the victim actually died. The court felt that a series of events formed a chain to complete the mens rea.
- This was affirmed in the case of R v Church and R v Le Brun
- Maximum sentence - 6 months.
- AR: Any act which causes the victim to apprehend immediate unlawful personal violence.
- can be through physical movement, words or silence as long as it makes the victim believe they are about to apply unlawful force
- Logdon v DPP - where a fake gun was used to threaten the victim to repay her debt was enough for her to apprehend
- R v Ireland - silence down the phone
- Smith v Chief Superintendent of Woking Police Station - looking through bedroom window caused her to be nervous for days
- Tuberville v Savage - assault can be cancelled e.g "if you weren't wearing glasses I would punch you."
- R v Constanza - 800 letters: you don't have to see the person you expect to inflict unlawful force on you
- Mens Rea: Intention or recklessness about causing the victim to apprehend immediate unlawful personal violence
- Intention examples: repetition, level of threat, tone of voice, timing etc
- Recklessness examples: joking, victim overhearing you, accidental
- Maximum sentence is 6 months.
- Any act by which the defendant intentionally or recklessly inflicts unlawful personal violence/application of force
- Defendants are only usually prosecuted if there is an injury sustained
- Actus Reus: R v Thomas - shows touching of clothing without consent is considered battery
- R v Fagan - continuing act.
- Indirect: R v Haystead - a man punched a women which made her drop her baby
- R v Martin - said there was a fire causing people to panic and rush out the door and sustained some injuries
- Dpp v K - put acid in a hand dryer
- Mens Rea: Intention or recklessness as to inflict unlawful personal violence on the victim
- R v Mohan
- Intention examples: aggressiveness, assault occurs at the same time, use of small weapon i.e a pen or ruler, not saying sorry or multiple battery.
- Can also be indirect like in R v Haystead or Dpp v K
- Recklessness examples: saying sorry afterwards, accidental etc
Actual Bodily Harm
- Maximum sentence is 5 years.
- Actus Reus:
- Assault or battery causing actual bodily harm
- Assault = causing the victim to apprehend immediate unlawful personal violence
- Battery = inflicting unlawful personal violenc
- ABH = "any hurt or injury calculated to interfere with the health or comfort of the victim"
- E.g. scratches, bruising, broken nose
- can be psychiatric injury (not just fear, distress or panic though)
- T v Dpp - loss of consciousness is ABH
- R v Chan Fook - tried to claim but was held that there must be sufficient evidence
- Dpp v Smith (2006) - cutting off hair
- Mens Rea:
- You only have to intend or be reckless about the assault or battery
- R v Savage - lady only intended to throw her beer at someone (battery) but the glass broke causing ABH
Grievous Bodily Harm
- Maximum is a life sentence.
- Actus Reus:
- Unlawfully & maliciously wounding or causing grievous bodily harm (really serious harm)
- JCC v Eisenhower defined wounding as breaking 2 or more layers of the ski
- R v Dica showed that GBH can be biological as he infected 2 women with HIV
- R v Bollom shows that GBH is subjective depending on the age of the victim. In this case a baby suffered from bruising that would be more serious for a child than an adult
- R v Brown & Stratton shows that multiple injuries can be GBH
- Mens Rea (s.20 OAPA 1861)
- Must intend or be reckless about causing some harm that will be caused
- R v Parmenter shows that you do not have to foresee serious harm, only some harm.
- Mens Rea (s.18 OAPA 1861)
- Intend only really serious harm/GBH - R v Belfon
- Or maliciously resist or prevent lawful apprehension of another.
s.4 Bail Act 1976 - presumption innocent until proven guilty in favour of bail
May grant bail while they make further inquiries (PACE 1984)
Suspect should return to station at given time
May grant bail to defendant charged with criminal offence
Defendant should turn up at Magistrate's court at given date
Failure to meet these requirements - offence under s.6 Bail Act 1976
Conditional Police Bail: May seize passport so the defendant doesn't abscond, set a curfew, issue a banning order etc
If police are unprepared to grant bail the defendant will appear in front of the magistrates for a bail hearing
Factors of Bail
Factors considered at bail hearing:
- Nature & seriousness of offence
- Character, previous records if any and community ties of the defendant
- Previous grants of bail - turning up and behaviour
- Strength of evidence against the defendan
- Reasons to refuse bail (Magistrates considerations):
- If it's thought the defendant will not turn up to court or police station
- They might commit a crime whilst on bail
- They might interfere with witnesses or obstruct the course of justice
- Bail may be restricted if:
- Defendant is charged with murder, manslaughter or **** and have already served a prison sentence for similar offence
- Defendant was on bail when the committed the offence
- If they test positive for class A drugs, charged with drug related offence and refuses to take part in drug assessment
Criminal Procedure - Summary
- CPS decide charges
- Bail - Police Station
- Bail given or on remand
- Appear in the Magistrates Court to consider bail and will have public funding hearing
- Enter plea at Magistrates Court
- If Guilty:
- Sentence there & then OR
- Pre-sentence (adjournment report by probation service)
- If Not guilty:
- Summon witnesses & expert evidence
- Set trial date
Criminal Procedure - Either Way
- Either Way Offence:
- CPS decide charges
- Police bail or remand
- Enter plea at Magistrates Court
- If Guilty:
- Sentence there and then
- Adjourn for more evidence & pre-sentence report by probation service OR
- Sent to Crown then trial
- Not Guilty
- Apply for legal aid
- Magistrates decide if they have appropriate sentencing power
- If Yes:
- Defendant decides which court --> Trial
- If No:
- Crown Court --> Trial
Criminal Procedure - Indictable
- Charged (decided by CPS)
- Police might grant bail or suspect held on remand
- Enter plea at Magistrates Court
- Apply for legal aid
- Case will be submitted to the Crown Court (as it is an indictable offence)
- Enter plea
- If Guilty:
- Sentence there and then OR
- Adjournment for pre-sentence report by probation service or more evidence
- If Not Gulity:
- Case management for evidence, witnesses and do decide the length of the trial
CPS - Crown Prosecution Service: Decide which offence will be charged
- Review evidence to ensure there is a case and is in the public interest
- Conduct prosecution in Magistrates Court through in house lawyers
- Conduct prosecution in Crown Court through independent lawyers or CPS lawyers
- Pre-Trial (summary):
- Allow CPS to gather more evidence
- Allow defendant to seek legal advice
- Allow Magistrates to get pre-sentence reports
- Allow witnesses to be summoned --> Magistrates consider bail.
- Pre-Trial (triable either way):
- Plea before venue - Magistrates' Court Act 1980
- If plea guilty --> no trial and straight to sentencing
- If plea not guilty --> move to mode of trial hearing
- Pre-trial (indictable):
- First hearing at Magistrates to deal with bail & legal aid
- All other matters dealt with in Crown Court
Mode of Trial
Mode of Trial Hearing:
- Court informed of previous convictions by prosecution & Magistrates decide if they have appropriate sentencing powers
- Cases involving complicated law or facts sent to Crown Court
- Defendant can request indication of whether they will get a custodial sentence
- If pleads guilty --> tried summarily (summary and triable either way only)
- If Magistrates say no they cannot impose custodial sentence if the defendant then pleads guilty
- Defendant told if the Magistrates feel they can hear the case & that they might send to Crown Court for sentencing
- Defendant may offered choice of summary trial or trial by jury
Types of Sentencing 1
- Custodial Sentences:
- Mandatory life sentences - e.g murder
- Discretionary life sentences - e.g manslaughter or GBH s.18
- Fixed term sentences - depends on tariffs set for offence and aggravating and mitigating factors. Do not serve whole sentence; automatically released after serving half the sentence
- Suspended sentences - up to 2 years and only takes effect if there is no re-offence. Only given if there are exceptional circumstances that justify suspension of custody e.g Battery.
- Community Orders:
- Offenders over the age of 16 --> If under 25 - attendance center requirement
- Unpaid work requirement - 40-300 hours in 8 hour chunks
- Activity requirement or Programme requirement
- Prohibited activity requirement - for example banned from carrying paint or dye
- Curfew requirement e.g enforced by spot checks or tagging
- Exclusion requirement - e.g from a certain area
- Mental health requirement
- Drug or alcohol rehab
- Supervision requirement - probation officer
Types of Sentencing 2
- Common sentence by Magistrates
- Maximum £5,000
- £20,000 breaches of health and safety
- Conditional - if no further offence. If re-offence another sentence is passed plus a sentence for the re-offence
- Absolute - no penalty. Used when defendant is guilty but morally blameless e.g tax disc fallen on floor
Reasons For Sentencing
- Reparation - righting a wrong and making it better e.g apologising or paying for damages, paying compensation to their victim.
- Rehabilitation - better themselves and aim to re-integrate into society. Allows offenders to break the habit of offending e.g alcohol or drug centers as part of a community order
- Retribution - justice and punishment for people effected...Described in the bible as an 'eye for an eye', 'a tooth for a tooth'. This potentially gives the V & society a sense of justice. e.g custodial
- Deterrent - Individual deterence is intended to ensure that a D doen't re-offend by being afraid of punishment. The D would recieve a harsher sentence than normal. The general deterence is aimed at preventing other potential offenders from committing crime.
- Protection of the public - or sometimes themselves. Which is usually achieved by incapitation such as imprisoning dangerous offenders. Stops them from hurting more people, as they may re-offend.
- Mitigating - may make sentence less severe:
- no previous convictions
- good character
- pleading guilty at first opportunity (will take 1/3 off sentence usually)
- Aggravating - make sentence more severe:
- vulnerable victim
- public interest
- hate crimes
- under the influence of alcohol/drugs
- severity of crimes or multiple offences