Law Unit 2 - Topic 1

• The P has to prove that D actually carried out the crime - actus reus.
• The actus reus means the physical elements of the crime, in other words it is the doing part of any crime.

                                                     Actus Reus = Guilty Act

• The actus reus must be voluntary. D must be in control of his body.
• It cannot include involuntary acts such as reflex actions or other incontrollable reactions.

• Causation is the connection between Ds conduct and the consequence. For example, D shoots V (conduct), V dies (consequence).
• Causation is part of the actus reus of a crime.
• For many crimes the Ds conduct (actus reus) must have caused the particular consequence.
• The Ds act must have caused Vs injury. 
• There are two types of causation - Factual Causation - 'but for' test                                                                                      - Legal Causation

Factual Causation - 'but for' test - it must be established that the consequences would not have occurred 'but for' the Ds actions.

Pagett (1983)

• D used his pregnant girlfriend as a human shield while shooting at armed the police. They fired back, shooting & killing the gf. D was found guilty of manslaugther. The court ruled that Ds conviction was upheld. Ds gf wouldn't have died but for his actions. The police were acting in the usual line of duty. Factual causation was established.

R v White (1910)

• D was charged with his mothers murder. D had put poison in his mother's drink (milk) with intention of killing her. However, before drinking the milk, his mother died of a heart attack. The court ruled that because V's death was not related to D's actions D was not guilty of her murder. D had not factually caused her death.

Legal Causation - novus actus interveniens

Legal causation will normally be proven unless something happens to break the link between Ds conduct and the consequence to V. This break in the 'chain of causation' could be anything from Vs own actions to the actions of another person.

                          Novus Actus Interveniens = Break in the chain of causation

If D cannot prove there was a novus actus interveniens then D will be liable.

If D can prove there was a novus actus interveniens then D will not be liable.

Medical Negligence

• Legal causation will be established if the original injury was a substantial and operative cause of death.

R v Smith (1959)

• V, a solider was stabbed by another solider, during a fight & later died. He was dropped twice by another soldier on the way to the medical room. There was a further delay before he was senn & even the doctors failed to see that one of his lungs had been pierced. The treatment given by the dcotors was described as 'thoroughly bad & might well have affected his chances of recovery'. D was conviction of murder at first instance but appealed. The court held that although medical treatment may have affected V's recovery, D's actions were still a 'substaintial and operating' cause of V's death and thus the chian of causation was not broken.

R v Cheshire (1991)

• An argument developed in a fish and chip shop ending with D shooting V. V was taken to hospital where he underwent a tracheotomy but later developed breathing problems. The breathing problems went unnoticed by medical staff and he died two months later as a result of negligent medical treatment. His gunshot wounds had almost healed and were no longer life threatening at the time of his death. D was convicted of murder at his trial but appealed. The court held that his appeal was dismissed. Even though negligence in the treatment of the V was the immediate cause of death, negligent medical treatment only breaks the chain of causation if it is so independent of the D's acts that the D's contribution becomes insignificant.

Mellor (1996) 

• V was a 71 year man who had been attacked buy a gang of youths. He was taken to hospital with facial bruising and chest pain but died 2 days later of pneumonia. D was convicted of manslaugther & appealed on the groung that the hospital had failed to give the old man sufficient oxygen. 

D's conviction was upheld. Negligent medical treatment only breaks the chain of causation if it is so independent of the D's act, that D's contribution becomes insignificant.

R v Jordan (1956) 

• V was recovering well from a stabbing and the wound was mainly healed, when he was given a drug he was allergic to evem though the hospital was aware of his intolerance. Vs reaction to this drug was such that he died. The court held that the wound was no longer an operative cause of death & that the medical treatment given had been 'palpably wrong'.  The admistration of the drug had acted a novus actus interveniens therefore d was not liable for V's death.

Contribution of third parties

There can be situations where other people appear to contribute to causing the resulting harm. Where this is the case, D may try to blame others who were involved although this will not normally relieve D of criminial liability.

R v Benge (1865)

• D was a foreman in charge of workers who were taking up and repairing rail tracks. D misread the train timetable and didn't realise when the next train was coming. D sent a signalman down the track to stop any trains; however the signalman did not go far enough, leaving less time for a train to stop. On seeing a train approaching, the worker raised his flag, but the engine-driver was not paying careful attention and did not see the signal in time. The train crashed, killing many people. At his trial for manslaugther, D argued that, although he was negligent, the accident wouldn't have occured without the negligence of the signalman failing to go far enough up the tracks & of the engine-driver not paying enough attention. The court ruled that despite this, D was found guilty as his contribution to the accident had been a material & substaintial cause fot the accident even though there had also been negligence on the part of others.

Pre-existing conditions - 'Thin Skull' Rule

• The 'thin skull' rule means that if V has some kinda of pre-existing personality or medical coniton or particular belief.

D will be guilty of the harm cuased to V even though an ordinary person would not have suffered such severe consequences. This rule applies regardless of whether D was aware of the condition or not. 

R v Hayward (1908)

• D chased his wife out of the house shouting threats at her. She collapsed & died. D didn't physically touch her. She was suffering from a rare medical condition which could lead to death where physical excertion was accompanied by fright& panic. Both D & his wife were unaware she had this condition. The court ruled that D was liable for manslaugther despite the fact an ordinary person in reasonable health would not have died, as his unlawful act had caused Vs death. The thin skull rule applied.

Blaue (1975)

• D stabbed V after she refused to have sex with him. One of the stab wounds penetrated her lung. On admittance to hospital she was told that she needed to a transfusion due to her beliefs & died soon afterwards.

• Medical evidence suggested that she would've survived if she had accepted the treatment. D was convicted of manslaugther but appealed. The court held but D argued that V's refusal to have the transfusion was unreasonable & therefore amountedto a novus actus interveniens. The courts rejected his argument & upheld his conviction.

The Victim's own Contributions

Sometimes, during the course of events, the victim themselves have appeared to contribute to their own death or injury. 

Roberts (1972)

• D gave a lift to a young woman late at night. During the journey he made unwanted sexual advances towards the girl. She jumped out of the moving car thinking that he was going to **** her. She was injured, suffering ABH. D was convictedof s.47 assault. This case introduced the 'daftness' test; if the V does something so daft or so unexpectedthat no reasonable person could be expected to foresee it, then it would break the chain of causation. The court upheld D's conviction on the grounds that V trying to escape was reasonably foreseeable & thus the chain of causation was not broken.

Williams (1992)

• V was a hitch-hiker who had been given a lift from D. V jumped from the moving car as he thought the D was about to rob him of his wallet. V hit his head and died. D was convicted of manslaughter. D appealed. The court held that while the P had suggested that there must have been something serious for V to have jumped out the vechicle, Ds conviction was quashed as there was very little evidence to suggest that D was about to rob V. The judge stated that "the nature of Ds threat is important in considering..whether the Vs conduct was proportionate to the threat, that is do say that it was reasonable & not something so daft as to..amount to a novus actus interveniens.."

These cases tell us that when considering if Vs actions amount to a break in the chian of causation the will be to:

• look at the gravity of Ds threat
• decide if Vs action was proportionate to the threat
• decide if Vs action was reasonably foreseeable OR decide whether Vs actions was very 'daft'

R v Dear (1996)

• D attacked V by slashing him with a kine. V received medical treatment but later re-opened his wounds in what was thought to be a suicide and died two days after the initial attack. D argued Vs actions in opening the wounds amounted to a novus actus interveniens. The court upheld Ds conviction. The wound was still an operating and substantial cuase of death.

BOTH FACTUAL AND LEGAL CAUSATION MUST BE PROVED FOR D TO BE GUILTY.

FACTUAL CAUSATION USES THE 'BUT FOR' TEST.

LEGAL CAUSATION WILL BE SATISFIED PROVIDED THERE IS NO BREAK IN THE CHAIN OF CAUSATION OTHERWISE KNOWNAS NOVUS ACTUS INTERVENIENS.

Omission = not doing somehing... a failure to act!

An omission, or failure to act, will constitute the actus reus of offence only when the law imposes a duty to act and the D fails to act.

• A statutory duty - parliament can create an offence for failing to do something.
• A contractual duty
• A duty arising from a relationship
• A duty arising voluntarily
• A duty arising because D has created danger
• A duty through one's offical position

A contractual duty

Where a failure to fulfil a contract is likelt to endanger lives, the law imposes a duty to act. The duty is owed to anyone who may be affectedand not just the contractual parties.

Pittwood (1902)

• D was convicted of manslaughter. He was a singnalman employedto look after a level crossing & ensure the gate was shut when a train was due. Heleft the gate open & was away from his post, with the result that someone crossed the line & was hit & killed. The court rejected his argument that his duty was owed to the railway company. He was paid to look after the gate & protect the public.

Adomako (1994)

• The D was an anaestheist who failed to notice that a tube supplying oxygen to his patient had become disconnected during an eye operation. The patient died six months later as a result of his brain being starved of oxygen at the time of the operation

A duty arising from a relationship

Gibbins v Proctor (1918)

• A child's father & his mistress failed to feeed the child and so the child dead of starvation. The D's were convicted of murder as the D's had a duty to feed the child because of their relationship (father and stepmother).

A duty arising voluntarily

Stone & Dobinson (1997)

• Ds lived together but were of low intelligence & had many personal difficulties. Despite this Stone's sister came to live with them. The sister was anorexic & she refused to leave her room to seek medical attention. Ds made some effort to care but didn't call medical services. She died, D's were convicted of manslaugther, as they had taken on a duty of care bu allowing her to live in their home & then omitted to make other arrangements for her, whilst knowing that she relied on them.

A duty arising because D has created danger

Where a person inadvertently starts a chain of events which could lead to harm but then fails to take action to avoid the harm, they would be liable. 

Miller (1983

• A vagrant D, fell asleep while smoking. His fag but it caught fire to the mattress.

He failed to put it out & moved to another room. The building sustained £800 fire damage. The court ruled that if a D creates a dangerous situation then they are under duty to take all such steps to prevent or at least minimise the harm.

DPP v Bermundez (2003)

• A female police officer, V stopped & searched D. She asked him to empty out all his pockets which he appeared to so. V asked him if he had removed everything & D said that he had. She then asked 'are you sure you dont have any needles or sharps on you?'. D said 'no'. V commenced her search but when she put her hand in his pocket she pricked her finger on a hypodermic needle. V noticed that D was smirking (which suggested that he realised that there was a needlie remaining in his pocket). Magistrates convicted D of assault. His conviction was upheld by the Crown Court.

A duty through one's offical position

Dytham (1979)

• D was a police officerwhostood by and watched a man V being thrown out of a night club. V was kicked to death by a bouncer. The PC did nothing to help becuase he was going ogg duty. He was charged with the offence of 'misconduct in a public office'. D clamied that the offence could not be committed by an omisson as it specifically requires misconduct. The court ruled that the offence of 'misconduct in a public office' can be committed by an omission. The D's conviction was upheld.

Evans (2009)

• D1 lived with her younger half-sister, V (16) and their mother, D2. V was a heroin addict. D1 bought some heroin and gave it to V, who self-injected. Later, it became obvious that V had overdosed but neither D1 or D2 contacted a doctor as they were afraid they might get into trouble. Instead, they put V to bed. Unfortunately, V died from the overdose. D2 was convicted of manslaugther as she clearly had a duty to act owing to her parental duty. D1 was convicted of gross negligence manslaughter but she appealed. D1's conviction was upheld on the basis that she had created a danger which she knew, or ought reasonably to have known was threatening the life of V, but failed to take reasonable steps to avoid the danger.

Conviction for the majority of serious criminal offences also requiires the prosecution to prove that the accused was in a certain state of mind when carrying out the crime. Mens rea therefore refers to the mental element of a crime or in others words, Ds guilty mind. Each type of criminal offences has its own mens rea, e.g. murder requires intention.

 Mens Rea = Guilty Mind

The courts have developed definitions of common states of mind found in many criminal offences. These are:

• Direct intent
• Oblique intent
• Recklessness

Direct intenttion' refers to its normal, common sense meaning, i.e. a person intends a result 'when he or she wants it to happen'.

In Mohan (1976) a case concerning attempted murder, direct intent was defined as:

'D's aim, purpose or desire to bring about a certain result'.

EP Lord Justice James in Mohan considered it irrelevant whether the result was likelt to occur or not.

Oblique intent is more problematic as it usually arises when D claims that he did not intend the particular result that in fact occurred.

Oblique Intent = The consequences of Ds action is virtually certain, and D goes ahead with his actions knowing that to be the case.

R v Nedrick (1986)

• D had poured fiamable liquid through the letterbox of a women's house and set fire to it. As a result of his actions a fire brokeout & the woman's child died. He said that he did not intend to kill anyone, just that he wanted to frighten her. He was therefore convicted of murder. D appeald, the case went to the CA. Lord Lane gave the judgement of the court... 'where the charge is murder..the jury should be directed that (oblique intent occurs) when death or really serious injury was a virtual certainty as a result of Ds actions and that D appreciated that such was the case'.

If the jury are satisfied that D recognised that death or serious injury would be a virtually certain result of his act, then they may infer that D intended the result.

R v Woollin (1996)

• The D was charged & convicted of murder for violently shaking his three month old baby and throwing him across the room. The Law Lords held that the ruling in Nedrick was correct.

Recklessness = D knew there was a risk of the consequence occurring, but went ahead with his action anyway.

R v Cunningham (1957)

• D stole money from a gas meter & in doing so, ripped the meter off the wall, leaving an exposed gas pipe. Gas escaped down to the basement flat, causing the neighbour the become dangerously ill. D was charged under section 23 of the Offences Against the Person Act 1861 for 'maliciously administering a novious substance so as to endanger life'. The trial judge interpreted 'maliciously' as meaning 'wicked'. D wad convicted & appealed. The CA ruled that the trial judge had misdirected thr jury on the meaning og 'malicious' as it did not require wickedness. The CA held that this particular offence could be committed either intentionally or recklessly and defined 'recklessness' as: 'the D himself must have foreseen the possibility of the consequence(s) occurring from his action but nevertheless went ahead with the action anyway'. Cunningham's conviction was quashed as it could not be proved that he realised  that there was a risk of harming anyone.

The definition of recklessness is usually referred to as Cunningham recklessness or subjective recklessness as the prosecution must prove what the D himself was thinking at the time of the offence.

Transferred Malice

This occurs when Ds mens rea transferred from his intended victim, to a different victim.

Latimer (1886)

• D aimed to hit someone else with his belt but missed & hit a bystander. The mens rea was transferred to the victim from the intended victim as the offence was clearly of the same type.

Mitchell (1983)

• D was in an argument at the post office & pushed an elderly man, causing him to fall accidently on an elderly women who died later in hospital. D unsuccessfully appealed.

For the principle of transferred malice to apply, the offence which occurred must be of the same type as that which as intended.

Pembilton (1874)

• D threw a stone at his intended victim, but missed & broke a window. The mens rea of intending to cause harm to the victim was not transferred to the window so he couldn't be found guilty of criminal damage based on that mens rea. Transferred malice did not apply. Ds conviction was quashed as the offences weren't of the same type.

For D to be criminally liable for any given offence, he must have the relevant mens rea at the same moment in time as he commits the actus reus. The mens rea and actus reus must coincide. 

Expections to the contemporaneity rule

Problems can occur when there appears to be a 'continuing act' or a 'series of continuing acts'.

Fagan v Metropolitan Police Commissioner (1969)

• D accidentally stopped his car on a policeman's foot. When the policeman asked him to remove the car from his foot, he replied '**** off, you can wait'. Fagan guilty of causing the injury to the policeman as leaving the car on the foot was seen as a continuing act.

Thabo Meli (1954)

• D hit the victim over the head intending to kill him.

Believing the victim was dead the D threw the V of the cliff, where the victim later died of exposure (cold).

Church (1966)

• D panicked believing hit V was dead. This was not his desired consequence. D want into van with women to have sex. He did not perform and she mocked him. D attacked her> D panicked thinking he killed her, throwing her body into a river, where she drowened. The court decided that the mens rea continued even after he thought she was dead, so as to include her death from drowning.

Dutch Courage

Dutch courage is said to occur when D drinks alcohol in order to pluck up the courage to so something. Where D forms an intention to commit a crime but then drinks in order to carry out the crime, they cannot then claim that they did not have the mens rea at the time of committing the offence (even if they were so intoxicated that they were unable to form the intention while actually committing the offence).