Criminal Liability

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ACTUS REUS

Actus Reus: Latin for "guilty act".

Physical element of crime. Each crime has own AR.

Can be:

  • An act (punch, kick, etc.)
  • An omission
  • State of affairs

Must be voluntary, Hill v Baxter: erratic driving due to heart attack of wheel.

Exception: State of Affairs case (Winzar/Larsonneur) can be convicted for involuntary acts.

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Omissions

Omissions:

Generally no liability for failing to act unless:

1) Contractual Duty- Pittwood- didn't close the gate

2) Relationship- Gibbons and Proctor- didn't feed baby daughter

3) Voluntarily- Stone and Dobinson- anorexic sister

4) Official Positions- Dytham- police officer witnessed attack

5) Dangerous Situation- Miller (smoking tramp) / Santana Bermudez (sharp objects)

Doctors withdrawing treatment is not an omission if in best interest of patient.

Bland: Stopped artificially feeding victim of Hillsborough Disaster

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Causation

Part of AR. Link between D's act/omission and the consequence.

1) Factual Cause (But for test, Pagett/White)

2) Legal Cause (De minimus rule, Smith) - more than a minimal cause "operating/substantial"

Thin Skull Rule: take V as he finds them (Blaue- Jehova's Witness)

3) No Intervening Acts

  • Natural but unpredictable event e.g. flood, earthquake, etc
  • Acts of 3rd party e.g. Pagett
  • Victim's own act e.g. Roberts/Williams - must be unreasonable/unforeseeable to break the chain of causation
  • Medical treatment e.g. Jordan - rarely breaks chain of causation, only if grossly negligent

Courts are very reluctant to break the chain- must be sufficiently serious and independant

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MENS REA

Latin for "guilty mind"

Mental element of crime. Each crime has its own MR.

Statutory offences- words that indicate MR include "knowingly" and "recklessly".

Different levels of MR- intention = highest, recklessness = lowest.

D must have at least the lowest level of MR.

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Intention

Direct: aim, want and desire (Mohan)

Indirect/Oblique: consequence must be a virtual certainty. D must realise this is the case (Woolin)

Recklessness: unjustified risk taking. D must recognise the risk and take it (Cunningham)

Transferred Malice: V is someone other/in addition to the intended victim- malice is transferred (Latimer)

General Malice: no particular victim e.g. terrorists, apply intention to actual victims

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Strict Liability

Offences which don't require MR. AR is sufficient.

Usually regulatory offences. Punishments usually = fine.

Shah- sold lottery tickets to 13yr old.

Alphacell v Woodward- pollution in the river

Smedleys v Breed- caterpillar in peas

Created by statute, courts look for words to indicate whether MR is required.

If truly criminal, they must presume MR (Sweet v Parsley)

Made to protect and promote public safety, encouraging high standards of care.

Acts as a deterrent and courts can deal with them quickly as prosecution need only prove AR- most D's plead guilty.

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Contemporaniety/Coincidence of AR and MR

When AR and MR do not start out at the same time, but some point in the series of events, they coincide.

D may have AR and then develop MR, or they may have MR and develop AR.

At the point that AR and MR coincide, the crime is complete..

Fagan: asked by police to pull over. Didn't realise he'd driven onto police officer's foot. When police officer asked him to move, he refused. (Drove onto foot = AR, developed MR by not moving).

Church: in back of van with woman. Couldn't perform satisfactorily. She mocked him so he beat her up until she was unconscious- he thought she was dead so he rolled her in a carpet and threw her in a river- she drowned. (MR before AR)

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OFFENCES (Assault)

Assault: Common law, summary offence. 6 months sentence and/or £5000 fine.

Actus Reus = any act or words which causes the victim to fear (apprehend) immediate, unlawful personal violence.

Tuberville v Savage: words can negate an assault. "If it was not aseize time, I would not take such language from you".

Ireland: assault can be silent telephone calls.

Logdon v DPP: Doesn't matter that gun was fake.

Smith v Chief Constable of Woking Police: meaning of immediate was extended, someone looking through woman's window.

Constanza: gave definition of immediate: any time not excluding the immediate future.

Mens Rea = Intention/Recklessness as to causing the V to fear (apprehend) immediate unlawful personal violence. Direct Intention- aim, want, desire (Mohan) Recklessness- unjustified risk taking (Cunningham)

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Battery

Battery: Common law, summary offence. 6 months and/or £5000 fine.

Actus Reus = application of unlawful force. Can be the slightest touch (Thomas). Force can be indirect (DPP v K - acid in the hand dryer) (Haystead- man hit woman who dropped her baby)

Mens Rea = Intention or recklessness as to the application of unlawful force. Intention- direct (aim, want, desire, Mohan) Recklessness- unjustified risk taking (Cunningham)

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s.47 OAPA 1861 (ABH)

ABH: Statutory offence, triable either way offence. Maximum 5 year sentence.

Actus Reus = assault or battery occasioning ABH

Part 1: Identify the assault/battery- AR of offence

Part 2: Causation/Occasion

Part 3:Injury must = ABH. Miller- Definintion of ABH- "any hurt or injury calculated to interfere with the victim's health or comfort."

T v DPP - loss of consciousness is ABH.

DPP v Smith- can be unlawfully cutting off hair.

Chan-Fook: Can be psychological

Mens Rea = Intention/Recklessness as to assault/battery. No additional MR required (Savage- threw beer glass which slipped out of hand. Intention- aim, want, desire (Mohan) Recklessness- unjustified risk taking (Cunningham)

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s.20 OAPA 1861 (GBH or Wounding)

GBH or Wounding: statutory offence, either way. Maximum 5 years.

Actus Reus = GBH or Wounding

Eisenhower- wound = anything that "breaks both layers of the skin"

DPP v Smith- GBH = "really serious harm"

Bollom: consider V- baby covered in bruises

Dica: could be biological (STIs)

Burstow: psychological

Mens Rea = Intention or Recklessness as to some harm (Parmenter) Direct- aim, want, desire (Mohan) Recklessness- D recognises the risk and takes it (Cunningham)

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s.18 OAPA 1861 (GBH/Wounding with intent)

GBH with intent or Wounding with intent: statutory offence, indictable. Maximum life sentence.

Actus Reus = GBH or Wounding

Eisenhower: wound "breaks both layers of skin".

DPP v Smith: GBH is "really serious harm".

Bollom: consider the V. Dica: can be biological. Burstow: psychological.

Mens Rea = Intention only to wound or cause serious harm.

Intention can be direct (aim, want, desire Mohan),

Indirect (oblique) intention- consequence must be virtually certain and D must realise that this is the case (Woollin). Or intenton to resist arrest and reckless ness as to whether some harm occurs (Morrison)

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BAIL AND PROCEDURE

Summary Offences: Assault and Battery: If D pleads guilty- Mags will pass sentence, likely to be dealt with quickly- Possible adjournment if more info is needed. If D pleads not guilty, matter is adjourned for trial and witness needs to attend. Mags consider bail.

Either Way Offences: s.47 and s.20:

Plea before venue hearing: If D pleads guilty, Mags sentence him. If Mags believe he needs a high sentence, they'll send him to Crown Court.

Mode of Trial: When D pleads not guilty, Mags decide whether seriousness of offence and sentencing powers are sufficient. Consider bail until trial. If Mags accept the case, the D has the right to choose jury trial. Consider bail. Mags = 20% acquittal. Crown = 60% acquittal.

Indictable Offences: s.18:  Pre-trial procedure. 1st hearing in Mags- decide bail and legal aid issues. Then sent to Crown Court.

Burden and Standard of Proof: (Applies to all). Inocent until proven guilty- burden of proof is on the prosecution who must prove D's guilt. Standard of Proof = Beyond all reasonable doubt.

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SENTENCING

Aims:

  • Denunciation: showing disapproval
  • Rehabilitation: help and support
  • Retribution: an eye for an eye
  • Incapacitation: prevented from reoffending
  • Deterrence: an example to other would-be offenders
  • Reparation: pay back debt

Types of Sentencing

  • 1) Fines (very common in Magistrates Court)
  • 2) Custodial (over 21's. Under 21's go to Young Offenders) Could be suspended.
  • 3) Community (unpaid work/supervision order/curfew/tagged)
  • 4) Discharged (Can be conditional or absolute)
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Factors Affecting Sentencing

Aggravating Factors:

  • Weapon
  • Group attack
  • Vulnerable victim
  • Planned
  • Previous conviction
  • On bail
  • Attack on grounds of sex, race, religious, sexual orientaton or disability.

Mitigating Factors:

  • Provoked
  • First offence
  • Plead guilty
  • Show remorse
  • Old or very young D
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