Underlying Principles of Criminal Liability

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Actus Reus - Summary

"Actus reus non facit reum, nisi mens sit rea" - "An act does not make a person guilty, unless the mind is guilty"

Therefore - the prosecution need to prove that:

  • D committed an actus reus (guilty act)
  • D had mens rea (guilty state of mind)

It can be a course of conduct:

  • Dangerous driving
  • Battery

Or causing an unlawful result:

  • Causing death by dangerous driving
  • Inflicting GBH (really serious injury)
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Actus Reus - Factual Causation

Factual Causation is established using the 'but for' test as seen in White.

'But for' means disregarding.

D put poison in a drink for his Mother before she went to bed, however she died of a natural heart attack during her sleep.

D was not found guilty of murder, as using the 'but for' test, she would have died anyway.

He was found guilty of attempted murder.

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Actus Reus - State of Affairs

The actus reus could also be a state of affairs, where the prosecution need to prove certain circumstances exist as seen in Winzar.

D was drunk in a hospital and refused to leave after he was denied treatment.

Police took him outside, and charged him with 'being found drunk on a public highway'.

Although he did not physically put himself in that situation, the circumstances still existed.

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Actus Reus - Voluntary or freely-willed

The actus reus must be voluntary of freely-willed. 

If it is involuntary, as seen in Hill v Baxter, the defendant will not be guilty.

D drove a car even though he was drowsy and crashed into some people.

He was convicted of causing injury - as he voluntarily put himself in that situation.

It would have been involuntary if:

  • he had been stung by bees
  • had a heart attack
  • been hit by a stone
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Actus Reus - Omission

As a general rule, an omission cannot be an actus reus.

Fitzjames-Stephen said: You are not guilty if you fail to act e.g. helping someone - it is just morally wrong.

The example given was:

"A sees B drowing and is able to save him by holding out his hand. A abstains from doing so in order that B may be drowned, and B is drowned. A has committed no offence".

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Omissions - Summary

As a general rule, an omission cannot be an actus reus, as seen in Fitzjames-Stephen.

A case example of an omission is Airedale NHS Trust v Bland - "The Bland Case".

Tony Bland was in a coma like state. The House of Lords held that doctors could withdraw food and treatment (an omission) without being criminally liable. If it was in the patients 'best interest'. However, it would be unlawful to give a lethal injection (an act). 

This is the 'best interest test'.

There are exceptions to the general rule where a person will be under a duty to act and therefore liable for an omission (to follow).

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Omissions - Statutory duty

A statutory duty, e.g. the Road Traffic Act 1988 makes it a criminal offence to fail to provide a specimen of breath when requested to do so.

This was seen in the case of R v Reid.

A man was pulled over for not having tax on his car, and when the policeman smelt alcohol on his breath, he requested a specimen of breath. 

D didn't think the policeman had a legal right to do so, however he did.

He was therefore found guilty of failing to provide a specimen of breath - as it was a statutory duty.

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Omissions - Contractual duty

Another exception to the general rule is contractual duty.

This is shown in the case of Pittwood.

D was a railway crossing gate keeper. He went to lunch early, and forgot to put the gates down.

As a result, someone tried to cross the railway crossing, and was hit by a train.

D was found guilty of manslaughter, as it was his contractual duty to close the gate.

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Omissions - Public duty

A public duty is an exception to the general rule.

This was seen in the case of Dytham.

A policeman was standing outside a nightclub watching bouncers kick a man to death.

He failed to stop them, then when questioned by a bystander, announced he was now going off duty. 

It was his duty to protect the man and to act, so was therefore found guilty of failing to carry out his duty as a public official.

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Omissions - Duty owed to family members

The 4th exception, a duty owed to family members, was seen in the case of Gibbons v Proctor.

A stepmother had a specific dislike towards one of her stepdaughters, and despite the father giving her money, she did not feed the child.

The 7 year old girl later starved to death.

They were both charged with murder as it was done so deliberately - neglect is usually manslaughter.

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Omissions - Voluntary assumption of responsibility

As seen in R v Stone & Dobinson - a voluntary assumption of responsibility is an exception to the general rule.

D's agreed to look after elderly sister. They failed to seek medical attention, and left her lying in her own excrement. Her bed sores became infected, and she died of blood poisoning.

They were found guilty of manslaughter as they both offered to care for her voluntarily.

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Omissions - Creating a dangerous situation

A duty to act because the defendant has created a dangerous situation was seen in Miller.

D was squatting illegally in a house and fell asleep smoking a cigarette. He woke up to the mattress smouldering, however moved to a different room and did nothing.

He later awoke to the house on fire, and was charged with arson as he failed to take reasonable action to prevent the danger.

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Causation (Legal)- Summary

For result crimes, the prosecution must establish factual causation for which the "but for" test from White is used.

If there is a possible novus actus interveniens (new intervening act) then a test for legal causation is used. For example, if D is stabbed, then the ambulance crashes, this is a novus actus interveniens.

There are various tests for legal causation e.g. was the defendant the 'operating and substantial cause' of death from Smith.

Most of the following incidents will not break the chain of causation in law:

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Causation - Physical characteristics

1. Physical characteristics of V, as seen in Hayward.

D shouted at and chased after his wife, who suddenly collapsed and died of a medical condition. 

The defendant was guilty of manslaughter using the "thin skull rule".

It does not matter if it wouldn't have happened to someone else - D is still responsible if V has physical conditions - known or unknown.

Thin skull rule - You must take your victim as you find them.

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Causation - Psychological differences and refusal

2. Psychological differences and refusal of medical treatment as seen in the case of Blaue.

D stabbed V, who was a Jehovah's Witness. V later refused a life saving blood transfusion on medical grounds, who died.

D was guilty of manslaughter as the court applied the thin skull rule to psychological differences and held that V's actions were not unreasonable.

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Causation - Natural Consequences

3. Natural consequences as a result of D's actions as seen in Pagett.

D went to his pregnant teenage girlfriend's house armed, who was later chased by police.

He was shot at by police, and used his girlfriend as a human shield, who died in the crossfire. 

It was held that the reasonable actions of the police in self-defence did not break the chain of causation.

D was responsible for the death, and charged with manslaughter.

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Causation - Reasonable attempt to escape

4a. Reasonable attempt to escape as seen in Roberts.

D picked up V in a club, and offered to drive her home. He drove her to a quiet spot, and tried to make sexual advances to V, who then jumped out of a slow moving car.

He was guilty of causing ABH as the V's actions were a reasonably foreseeable consequence of what he did. The court stated that the chain of causation would only be broken if V did something "daft".

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Causation - Daft attempt to escape

4b. A daft attempt to escape did break the chain of causation as seen in Williams & Davis.

D's gave a lift to a hitch-hiker and tried to steal his wallet.

He jumped out of the car and was killed.

D's did not cause V's death, as his actions were daft.

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Causation - Switching off a life support machine

5. Switching off a life support machine does not break the chain of causation as seen in Malcherek & Steele. 

Switching off a life support machine does not break the chain of causation as the court held that the operating and substantial cause of death had been the original wounds inflicted by V.

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Causation - V committing suicide

6. V committing suicide will not break the chain of causation as seen in Dhaliwal.

D had mentally and physically abused his wife, who committed suicide.

The court held that if D unlawfully causes psychiatric illness (e.g. post-traumatic stress disorder, or battered wife syndrome) resulting in V's suicide, a manslaughter charge is possible. 

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Causation - Negligent medical treatment

7a. Negligent medical treatment does not break the chain of causation as seen in Smith.

D stabbed V but V was dropped on the way to the medical hut.

V was not treated immediately, and eventually given bad treatment.

D was guilty of murder as he was the operating and substantial cause of death - loss of blood.

Although the death could have probably been avoided, the negligence did not break the chain of causation.

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Causation - "Palpably wrong" medical treatment

7b. Palpably wrong medical treatment broke the chain of causation in the case of Jordan.

D stabbed V, who was given a drug to which he was allergic to and large amounts of liquid through a drip which caused pneumonia and then death.

D was not guilty of murder as the wound was mainly healed and became the setting for another cause of death.

D's actions were not the operating and substantial cause of death.

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Causation - Medical complications

7c. Medical complications will not break the chain of causation as in Cheshire.

D shot V in the leg and stomach. V had problems with breathing and was given a tracheotomy.

This lead to rare complications, not spotted by doctors, causing V's death.

D was still guilty of murder as the rare complication was a direct consequence of the D's acts, which remained a significant cause of the victim's death.

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Mens Rea - Direct Intention

Direct intent was defined in Mohan as "a decision to bring about, the commission of the offence".

D deliberately drove his car at a policeman, causing him to jump out of the way.

This was direct intent, as D had deliberately acted.

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Mens Rea - Oblique Intention

Oblique intention is where a person foresees a consequence of his actions but does not desire it for its own sake. 

An example of oblique intention was shown in Moloney.

A man boarded a plane to Manchester, even though it was the last place he wanted to be.

His motive was to escape the police, but he has an indirect intention of going to Manchester.

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Mens Rea - Oblique Intention

The "virtual certainty" test from Nedrick is used to decide if there is evidence of oblique intention.

D set fire to a house in order to frighten the owner, but a child died inside. The court held that if D realised that death or GBH would be virtually certain to result from D's act, then the jury may infer that D intended to kill or do GBH, even though s/he may not have had a desire to do so.

This test was endorsed by the House of Lords in Woollin:

D lost his tempter and threw his three-month-old son across the room into his pram, killing him.

D denied that he had an intention to cause serious harm, as the trial judge summed up using the phrases, virtual certainty and substantial risk, his conviction was reduced to manslaughter.

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Mens Rea - Oblique Intention

A case example of oblique intent is Matthews & Alleyne.

D's had pushed V from a bridge and into a river, knowing that V had told them he could not swim. 

V drowned and the defendants were convicted of murder as they knew that drowning was a virtual certainty.

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Mens Rea - Recklessness

Recklessness is the taking of an unjustified risk. The test is subjective which means that the prosecution must prove that the D realised s/he was taking a risk.

A test for recklessness was shown in the case of Cunningham.

D broke into a gas meter in order to steal money but a pipe was broken and gas leaked next door. 

He was not guilty of "maliciously" administering a noxious substance so as to endanger life because he was not aware of the risk that his actions might case the prohibited consequence.

The subjectve or "Cunningham test" was approved by the House of Lords in Gemmell & Richards.

Two boys aged 11 & 12 set fire to newspapers which they threw under a large wheelie bin. The bin caught fire and spread to shops and other nearby buildings.

They were not guilty of arson as they thought the fire would estinguish itself.

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Mens Rea - Recklessness

An example of someone who was reckless is DPP v K.

A schoolboy poured concentrated acid into a hand dryer in a panic after hearing footsteps.

V used the dryer and suffered ABH as a result of D's actions.

D was guilty as he had created a dangerous situation and knowingly took the risk of someone using the dryer.

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Mens Rea - The Contemporaneity Rule

The contemporaneity rule means that the prosecution must prove that mens rea coincided when the actus reus wasa committed. It has been interpreted in two ways:

a) The actus reus may be a continuing act which is committed over a period of time as in Fagan.

D accidentally drove his car on to a policeman's foot and when he realised, he refused to remove it immediately. It was held that the actus reus of the assault was a continuing act, which started without mens rea, and was still in progress when the mens rea was formed, so there was a coincidence of actus reus and mens rea.

b) The actus reus may be a chain of events as in Thabo Meli.

D's got V drunk and hit him round the head, intending to kill him. They only knocked him unconcious, but believing V to be dead, they threw his body over a cliff. V survived, but died of exposure some time later. The court treated the chain of events as a continuing actus reus. The actus reus of causing death started with V being hit on the head and continued until he died of exposure. It was sufficient that at some time during the chain of events the D's had mens rea.

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Mens Rea - Transferred Malice

Under the doctrine of transferred malice, mens rea may be transferred from an intended victim to an unintended one as in Latimer.

D hit V1 with his belt. However, it recoiled off him, severely injurying V2, an innocent bystander. D's conviction was affirmed. D had committed the actus reus of the offence with the necessary mens rea, i.e. acted maliciously. There was no requirement in the relevant act that his mens rea should relate to a named V. Thus, Latimer's malice was transferred to his unintended victim. 

However, mens rea cannot be transferred for a different actus reus as shown by Pembliton.

D threw a stone at another person during an argument. The stone missed the intended victim, but instead broke a nearby window. His conviction of malicious damage to property was quashed. The court held that the doctrine of transferred malice was inapplicable where D's intention had not been to cause the type of harm that actually occured. His intention to assault another person could not be used as the mens rea for the damage that he had caused to the window. 

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Strict Liability - Summary

Crimes of strict liability are crimes where the definition of the crime includes an actus reus and no mens rea. 

The main justification is that strict liability offences help protect society by promoting graeter care over matters of public safety. It encourages higher standards in such matters as hygiene in processing and selling food.

On the practical side, it is easier to enforce as there is no need to prove mens rea. It saves the court time as people are more likely to plead guilty. 


Blake - Broadcasting without a license - hindering public service radio waves
Alphacell Ltd v Woodward - A papermakers accidently polluted a river when the pumps became blocked, despite not knowing and not being able to predict this.
Harrow LBC v Shah -  sold a lottery ticket to someone under 16 - not truly criminal but a matter of social concern

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Strict Liability - Not Imposed

Cases where strict liability was not imposed are Sweet v Parsley.

A teacher let out her cottage to students and she rarely visited. She knew nothing of the drug taking that the students were involved in. It was decided that an element of mens rea was needed for there to be a conviction for this crime.


A boy pestered a young girl for oral sex on a bus. He did not know she was underage, so the court held that the case was too serious for strict liability, and some mens rea had to exist.

By contrast, offenses of absolute liability (or "state of affairs" crimes) do not require any mens rea e.g. Winzar where D was drunk and police took him outside and charged him with being found drunk on a public highway. 

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Non-Fatal Offences - Assault

Common assault, under S39 of the Criminal Justice Act 1988, is any act which causes V to apprehend the immediate infliction of violence. 

This was shown in Logdon.

D was guilty of assault by waving a replica handgun as a joke, however V had apprehended the immediate infliction of violence. Therefore, D had been at least reckless. 

The requirement of immediacy has been interpreted literally in Smith.

D was guilty of assaulting V by staring through a window of her flat. V was terrified by the prospect of some immediate violence, therefore making D guilty.

Immediacy has also been shown in Constanza, where D sent V 800 letters, some of which were threatening in nature. He was guilty of assault as V feared violence at some time, not excluding the immediate future, especially as D lived nearby.

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Non-Fatal Offences - Assault

In the case of Ireland, it was also proven that words can amount to an assault.

D made silent phone calls to 3 women. D was found guilty of assault as V may have felt that the reason could have been to find out if she was at home before striking.

However, as seen in Tuberville v Savage, actions can be cancelled by words. D put his hand on his sword but then told V that he wouldn't attack as the judge was in town. This was not an assault as the words accompanying the actions showed that D wasn't going to act.

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Non-Fatal Offences - Battery

Common law battery (or assault by beating), under S39 of the Criminal Justice Act 1988, is unlawfully applying a physical force to another person. 

This was shown in the case of Collins v Wilcock.

A policewoman grabbed a prostitute's arm, however she was not making an arrest. Therefore, she unlawfully applied the force, making her guilty of common law battery.

This was also shown in the case of Thomas.

A school caretaker touched a 12-year-old schoolgirl's skirt. It was held that even though the force was applied to the clothes, it is still common law battery.

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Non-Fatal Offences - Battery

Battery can be committed directly or indirectly as in the case of Haystead.

D punched V who was holding a child who was dropped. D was guilty of battery against the child as well, even though there was no direct contact between them.

The mens rea for assault and battery is intention or recklessness.

This is shown in the case of Venna, where D kicked a policemans hand and fractured it. The court held that D who intentionally or recklessly threatens or applies force is guilty of an offence. 

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Non-Fatal Offences - ABH

The offence of assault occasioning actual bodily harm is in S47 of the Offences Against the Person Act 1861.

- "Assault" means a common law assault or battery

- "Occasioning" means causing, either directly or indirectly

Cases of assault occasioning actual bodily harm are:

Roberts - where D touched V causing her to jump out of the car.

Constanza - where D stalked V and sent her over 800 letters.

Ireland - Where D made silent phonecalls to 3 women.

DPP v K - the reckless school boy who placed acid in a hand dryer.

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Non-Fatal Offences - ABH

ABH can be caused by an omission as seen in Santana-Bermudez.

A policewoman asked D if he had any needles or sharps in his pockets and said no. However, she pricked her finger on a needle in D's pocket.

D was guilty under the Miller principle (creating a dangerous situation).

ABH was later explained in Chan-Fook.

V was injured after escaping from a room that D had locked him in after being accused of stealing a diamond ring. The court held that ABH means injury to the skin, flesh and bones which is significant or more than trivial.

ABH also includes injury to the organs, nervous system and brain. It can include psychiatric injury supported by expert opinion/evidence (but excludes hysteria, fear, nerves, distress or panic).

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Non-Fatal Offences - ABH

ABH was extended further in the following cases:

T v DPP - D kicked V in the head causing a momentary loss of conciousness. D was held guilty as he had impaired V's sensory functions.

Smith - Where D cut off his girlfriend's ponytail. The court held that ABH applies to all parts of the body including the hair.

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Non-Fatal Offences - ABH

The prosecution only need to prove mens rea for the assault, i.e. intention or recklessness for the assault or battery. Mens rea is not needed for ABH according to Savage.

D threw a pint of beer at V and claimed that the glass slipped out of her hand, injurying V. D was guilty as she had mens rea for assault or battery which caused ABH.

This was also shown in the case of Parmenter.

D threw his baby in the air causing internal injuries. He was convicted under S47 as he had intentionally applied too much force unlawfully (battery), which then caused ABH.

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Non-Fatal Offences - GBH

Section 20 of the Offences Against the Person Act 1861 makes it an offence to unlawfully and maliciously wound or inflict grievous bodily harm upon any other person.

Section 18 of the OAPA 1861 makes it an offence to unlawfully and maliciously wound or cause GBH to any person with intent to do GBH or to prevent a lawful arrest or detention.

Wounding means breaking the continuity or the top two layers of skin. 

This was seen in Eisenhower, where D shot V in the eye with an air rifle pellet, bursting internal blood vessels. 

He was not guilty of wounding as no layers of skin were broken, but was guilty of ABH.

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Non-Fatal Offences - GBH

Inflicting means causing, either directly or indirectly as seen in Martin.

D blocked the exits of a theatre and shouted "Fire!". People were crushed and D was convicted of indirectly inflicting GBH.

Burstow directly caused GBH.

D stalked his V by sending hate mail, stealing clothes from the washing line, malicious phone calls and throwing condoms around the garden.

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Non-Fatal Offences - GBH

GBH means "really serious injury" according to Smith (a murder case).

It can also be a series of injuries as in Brown & Stratton, where a father beat up his transexual son and V received a broken nose, lost three teeth and concussion.

In the case of Bollum, the court held that injuries to a child or elderly person were more serious and could amount to GBH.

GBH can also be a psychiatric injury of a serious nature, as supported by Burstow.

As seen in Dica, GBH can be a biological injury, such as knowingly sleeping someone and spreading AID's.

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Non-Fatal Offences - GBH

The mens rea for S20 is to act "maliciously" as defined in Mowatt, where D banged V's head on the pavement and repeatedly punched him after an argument.

The prosection must prove that D intended to cause some harm, even if minor, or was reckless as to causing some harm.

If D does not intent or foresee the risk of some harm, then he/she will not be guilty under S20 but may be convicted under S47 as in the cases of Savage and Parmenter.

The mens rea for S18 must be a specific intent to do GBH as stated in the case of Belfon, where D slashed V in the face & chest with a knife.

According to the CPS charging standards, evidence for S18 includes:

  • A repeated or planned attack
  • Using or adapting a weapon
  • Attacking V's head
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Non-Fatal Offences - GBH

Where D is trying to resist arrest, the prosecution also need to prove thatD intended injury or realised there was a risk of injury and took it.

This was shown in the case of Morrison.

D jumped through a window after being handcuffed by a policewoman to resist arrest, injurying her in the process.

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