Unit 2- The concept of liability

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Unit 2- The concept of liability

Actus Reus 

  1. AR= conduct of the accused. It can be an act of comission or omission and must be a volunatry act that causes that damage or harm.
  2. The accused conduct must be voluntary or freely willed if D is to be liable, if involuntary= no liability 
  3. AR may be involuntary because of AUTOMATISM- this occurs when D performs physical act but is unaware of what he is doing, or is not in control of his actions because of some external factor; Quick 
  4. AR may be involuntary because of REFLEX ACTIONS- sometimes people can respond to something with a spontaneous reflex action over which they have no control; Hill v Baxter 
  5. An omission (failiure to act) has no liability, can't make someone guilty of an offence because no good samaritan law 
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Unit 2- The concept of liability

Mens Rea 

  1. MR= mental element needed for all serious crimes. To be criminally liable, D must've had a guilty mind. Intention and recklessness can form MR 
  2. Intention can be direct; Mohan, and/or Indirect (oblique)- where D intends one thing but consequence is another; Hancock and Shackland 
  3. D may be found guilty if it's likely he could predict his actions could lead to a criminal offence (foresight of consequences); Maloney 
  4. In woolin, D was charged with murder, but denied he had an intention to cause serious harm. Conviction was quashed to manslaughter 
  5. Recklessness- D knows there is a risk but still takes that risk. Recklessness was established in Cunningham 
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Unit 2- The concept of liability

Causation 

  1. Link between D's act and the criminal consequence. Chain of causation 
  2. In murder prosecution, must prove that V died because of D's actions 
  3. Factual causation- 'But for' test used. This is when they look at whether the result would've happened 'but for' the actions of the D. If answer yes, D not liable; White. Pagett was convicted of manslaughter 
  4. After estalished Factual causation, Legal causation needs to be established. D's act should be operative and substantial cause; Smith. In Kimsey, the cause needed to be more than a slight and significant link.
  5. D must take V as he finds him (thin skull rule)- this will be considered when deciding if he is the legal or factual cause of injury. 
  6. If victim has a pre-existing condition that makes injury worse, liability is not lessened from D; Blaue
  7. In order to break the chain of causation so that D is not responsible for the consequence, the intervening act must be sufficiently independent of D's conduct and sufficiently serious, Jordan involving poor medical treatment 
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Unit 2- The concept of liability

Strict Liability 

  1. SL= are crimes which don't require mens rea but actus reus 
  2. To be convicted of a SL offence, D doesn't have to have a guilty mind. Performing the act is sufficient to be guilty; Prince 
  3. Examples of SL offences- road traffic, liscensing, food safety, pollution
  4. The more serious the criminal offence- less likely for courts to view it as an offence of SL; Sweet v Parsley

Reasons for SL 

  1. Prevention of forbidden acts- Prince was convicted so that men should be stopped from taking girls out of the possession of parents, whatever the age 
  2. To protect the interests of the public- SL provides public with protection of pollution; Alphacell v Woodward
  3. SL can provide protection from unlawful weapons; Howells 
  4. SL can provide protection from illegal broadcasts; Blake. It applies to some drug offences to protect public and make it difficult for offenders to avoid liability by arguing that they didn't know the drugs were in their possession; Warner 
  5. Many of the offences are qasi criminal; Callow v Tillstone, Alphacell ltd
  6. Practical- difficult to convict offenders if MR had to be proved 
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Unit 2- The concept of liability

Transferred Malice 

  1. Where MR of crime is directed at one person is transferred to the unintended victim of the crime 
  2. Rule only applies to person to person; Latimer, Mitchell, or object to object. It does not however apply to object to person or vice versa; Pembliton 
  3. D can be guilty if he intended to commit a similar crime but against a different person; Latimer 
  4. However, where the MR is for a compltely different type of offence, the D may not be guilty of TM; Pembliton- he was charged with malicious damage to property and was convicted
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Unit 2- The concept of liability

Coincidence (Contemporaneity) Rule 

  1. In order for an offence to take place, both the AR and MR must take place at the same time 
  2. In Thabo Meli, the courts had to decide if the AR and MR were present at the same time. The D's were convicted of murder. The D's appealed on the ground that there had been no coincidence of the AR and MR of murder, however were guilty as the required MR and AR were combined in a series of acts.
  3. A simialr situation occured in Church. The same reasoning  was applied in this case even though there was no pre-conceived plan. The D's appeal against his conviction of manslaughter was dismissed by the C of A
  4. In Fagan, there was a coincidence of AR and MR and so it was sufficient to form criminal liability. Fagan appealed and claimed that there was no MR, however his appeal was dismissed. As long as he had the MR at the same time during that continuous act, he was liable 
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Unit 2- The concept of liability

Pre-trial procedure (summary offences)

  1. Summary offences are the least serious offences, e.g s39 offence or speeding can only be tried at a Magistrates' court
  2. Charge will be read to D and will be told to enter a plea of guilty or not guilty. If D proceeds guilty, the Magistrates may convict him there and then and will proceed to sentence. The Magistrates can only sentence an offender to a maximum sentence of 6 months 
  3. If the D pleads not guilty, the Magistrates will decide that the offence is more suitable for a summary trial 
  4. Pre-trial matters could be that prosecution may mention previous convictions/criminal records as they will have an effect on the severity of the sentence, should the accused be found guilty 
  5. The D will be given legal representation in the form of a solicitor, who will advise him on matters such as his plea and whether to apply for bail. If D is successful in applying for bail, he will be released from custody untill next date when they must attend court or the police station as stated on the bail notice. However there still will be certain conditions such as money being paid or having to report to a police station every day.
  6. A Magistrates court or police officer may give bail to a person charged or suspected of a criminal offence. The D may not be granted bail if the court thinks that the D should be kept in custody for his own protection, or if he is a child or young person, for his own welfare 
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Unit 2- The concept of liability

Indictable Only Offences 

  1. More serious offences that can be tried at the Crown Court, though the first hearing is at the Magistrates court. These offences include s18 wounding with intent, murder, manslaughter and ****
  2. D's charged with indictable offences have the right to recieve details of the prosecution case against them (Advance Disclosure)
  3. The clerk explains to D that he may enter a guilty plea, not guilty or no plea. If D enters a guilty plea, then Magistrates court will commit the D to the Crown court for sentence 
  4. If D enters a not guilty plea or no plea, the court proceeds to the Mode of Trial Procedure 
  5. Pre-trial matters could be that prosecution may mention previous convictions/criminal records as they will have an effect on the severity of the sentence should the accused be found guilty.
  6. The D will be given legal representation in the form of a solicitor, who will advise him on matters such as his plea and whether to apply for bail. If D is successful in applying for bail, he will be released from custody untill next date, when they must attend court or police station as stated on the bail notice 
  7. However there will be certain conditions such as money being paid or having to report to a spolice station every day
  8. A Magistrates court or police officer may give bail to a person charged or suspected of a criminal offence. The D may not be granted bail if the court is not satisfied that the D should be kept in custody for his own protection, or if he is a child or young person for his own welfare 
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Unit 2- The concept of liability

Either-way Offences 

  1. These are middle ranking offences such as s47 and s20, where the accused may choose to be tried in the Magistrates' or Crown court 
  2. A hearing known as the Mode of Trial Hearing or a plea before venue will take place in the Magistrates court . The court will determine where the case will be tried 
  3. After that the procedure is the same as summary or indictable offences 
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Unit 2- The concept of liability

Bail

  1. Release of D from custody untill their next court appearence 
  2. If bail is granted, D will be released from custody untill next date when they must attend court or police station. However, there will be certain conditions, e.g money being apid, surreder of D's passport, report to police station daily 
  3. Magistrates court and police are concerned with granting apllications for bail, which is regulated by The Bail Act and the Police and Criminal Evidence Act. Bail is concerned with D's freedom. The Human Rights Act is considered 

Refusal of bail 

  1. If offence is punishable with imprisonment- a court can refuse bail if it believed that if released D would fail to surrender to custody or commit an offence while on bail 
  2. For his own protection, if he is a child/young person for his own welfare. A person positive for class A drugs and refuses treatment may be refused bail 
  3. s25 Criminal Justice and Public Order Act- prevents grating bail for people charged with murder or **** after previous conviction of such offences 
  4. D may have remand in custody, where D kept in custody before next hearing 
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Aims of sentencing 

  1. Punishment - based on the idea of revenge, intended to show public disgust of the offence; Blake
  2. Deterrance- where sentence designed to make offender not re-offend for fear of suffering same or worse fate 
  3. Rehabilitation- aims to reform the criminal. Involves offering offenders help to overcome problems they may face, trying to make it easier to avoid future problems. Educational and training facilities have provided an alternative career path for offenders 
  4. Protection of society- common method of protecting society from dangerous individuals is to order long prison sentences, Murder autimatically leads to life imprisonment; Shipman; Suttcliffe. It costs £3000 per year to keep a prisoner in prison 
  5. Reparation- can be seen by sentencing options such as community service. Aimed at compensating the victim of the crime or returning stolen property to its rightful owner (restitution)
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Range of sentencing 

  1. Custodial- if convicted of s20 offence, D can be put into prison for upto 5 years. A custodial sentence must be proportional with seriousness of the offence or longer term as it may be necessary to protect public from serious harm 
  2. Community- The community sentence must be suitable for offender and the restrictions on liberty must be linked with seriousness of offence. These could include a curfew order, probation order or community service that D must do between 40-240 hours of unapid work
  3. Fine or discharge- crown court can fine D instead of posing a sentence of imprisonment; s127. The crown courts power to fine depends on offenders ability to pay and their age. Magistrates court may impose a fine upto £5000
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Factors of sentencing  

  1. Seriousness of crime- murder automatically leads to life imprisonemnt; Shipman. The Criminal Justice Act gives certain factors which are considered as aggravating factors, making an offence more serious. E.g previous convictions, if D was on bail, sexual orientation, religious hostility 
  2. Mitigating factors- these are factors which may suggest lower sentence, e.g showing immediate remorse. D's lawyer or D personally will make a plee in mitigation. This is an opportunity to explain why offence was committed, The D's personal circumstances and if D feels remorse 
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Unit 2- The concept of liability

Breach of Duty 

  1. Reasonable man test is used in law of negligence. Used to decide whether a person has acted as a reasonable person would've in the same circumstances; Blyth v Bham Waterworks
  2. Test objective- doesn't take into account of D's disabillities/difficulties; Nettleship v Weston
  3. If D has professional skill- court will expect D to show they have a degree of compotence to be expected of an ordinary skilled member of the profession; Bolitho v City Hackney Authority Commitee
  4. Child D's assessed to standard of conduct that can be expected of a reasonable child of D's age; Mullins v Richards 

3 tests to determine breach of duty

  1. Degree of probability- if there is a high risk, the more of a chance of being found guilty and the more precautions RM takes; Bolton v Stone (low), Haley v London Electricity Board (high)
  2. Magnitude of harm- if risk is small but harm great, RM takes more care; Paris v Stephney Bc- standard of care high due to V having one eye. D is to take victim as he finds him (thin skull rule)
  3. Cost and practicality of preventing the risk- if cost of taking precautions to eliminate risk is too high to the extent of risk, D not liable; Latimer v AEC ltd, Bolton v Stone
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Duty of Care 

  1. DoC=Legal obligation, requires one's care for those that may be harmed by their actions
  2. in order for DoC to be owed, neighbor principle must apply. DoC established in Donoghue V Stevenson- modern approach of Caparo V Dickman, laid down the 'incremental approach'- 3 questions 
  • was damage foreseeable? Foreseebaility- ability to know beforehand what an action could lead to; Kent v Griffiths 
  • Is there suffcient proximity between wrongdoer and victim? Bournhill v Young
  • Is it just and reasonable to impose a DoC?- It is just and reasonable to sue someone who hasn't done their job properly; Mulcahy v Ministry of Defence 

'But for' test'; Barnett v Chelsea 

Questin could be asked whether D is liable for public dity?

Statutory duty? XV Bedfordshire County Council

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Res ipsa loquitor 

  1. = 'the thing speaks for itself'- used when facts of the case are obvious; Scott v London & St katherine Docks 
  2. 3 part test
  • The thing that caused harm was wholly under the control of the D 
  • The accident that caused the damage wouldn't have happened unless someone had been negligent 
  • There is no explanation of the injury caused to the complainant 

Once all 3 proven, burden of proof moves from D to claimant- from this D has to prove not guilty 

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Remoteness of Damage (RoD)

  1. RoD is where D is liable for damage only if it's the foreseebale consequence of the breach of duty 
  2. As long as type of damage is foreseeable- doesn't matter that the from it takes is unusual; Hughes v Lord Advocate
  3. If foreseeable, not too remote, therefore found guilty; Wagon mound 
  4. D must also take V as he finds him (thin skull rule). Liability is not extinguished or lessened because claimant had pre-existing condition that made injuries worse; Smith v Leech brain 
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Damages 

  1. Aim= compensate V for the loss of damage suffered and to put V in the position they would've been in had the negligence not occured 
  2. Special damages (SD) occur between the date of date of trial and onwards. Court may choose to award victim with SD as they may suffer from loss of expenses. This may include: 
  • medical expenses 
  • loss of earnings 
  1. Court will award general damages through peculinary losses and non-peculinary losses. Includes pain and suffering they may have been caused. Loss of amenity (quality of life) may be taken into account when calculating award of damages 
  2. Damages may be awarded as 'lump sum'- final one off payment. May also be structured settlement- monthly, fixed payments. The Damages Act governs structured settlements 
  3. if condition worsens- amount received can be increased 
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