Criminal Law Notes

USE SUBHEADINGS WHEN APPLYING LAW TO FACT, DEFINE, DEMONSTRATE AR/MR AND APPLY TO CASE, THEN MOVE
DOWN LADDER OF EXTEREME ASSAULT. NO NEED FOR ESSAY, BULLET CAN DO, NO NEED TO USE FLOWERY
INTRODUCTION. STRIP OUT CHIT CHAT ESSAY STYLE

Unit 1

Function of criminal law

 Moralist approach: criminalize conduct that is morally blameworthy even if no harm has been caused, criticized as
an invasion of privacy where no harm has been caused
 Utilitarian approach: seeks to criminalize conduct that is blameworthy and also causes identifiable harm

Classification
Summary-only Either-way Indictable-only
Less serious rimes Middle range Serious like murder, rape, robbery

Must be tried in magistrates court
not Crown
Recent pressure to push more cases
to be tried in magistrates given speed
and cost thus some serious offences
being classified as summary only
Can be tried in magistrates or Crown Must be tried in Crown Court with
but magistrates will usually push to judge and jury
Crown if they conclude the offence
merits a higher sentence than
magistrates can impose – defendant
can decide where they want to be
tried

Sentencing powers up to 12 months Belief that Crown Court would be

more sympathetic to defendant given
jury inclusion

Driving under drug/alc influence, Theft, dangerous driving, burglary,

assault, careless driving, taking
another person’s vehicle without
their consent
some types of assault
e.g. criminal damage (but if less than
5000 GBP damage, must be dealt in
magistrates)

Actus and Mens Rea

Actus rea – guilty conduct, aka anything other than the state of mind required of the defendant. often involves a
defendant taking some positive action but sometimes can be failure to take action. Involves one or more of
A) Act (or omission)
B) Existence of circumstances at time of conduct
C) Certain consequences from conduct

Actus rea conduct must be voluntary

- automatism: defendant can allege conduct was involuntary, but defendant must be blameless
o is a general and complete offense (can be raised for any offense and if proved, leads to acquittal)
o works if: defendant was attacked by cramp while driving – blameless (Hill v Baxter)
o doesn’t work: defendant drove home after night shift and even though he was very tired – at least partly
to blame

Sometimes, physical aspect is minimal (i.e. conspiracy actus reus is agreement between 2 people to commit offense)

Can be either conduct crime, result crime, or circumstances

Conduct crime: D must behave in certain way and in certain circumstances
- e.g. perjury: simply making a statement on oath in judicial proceedings (circumstances) which is known to be
false.
Result crime: D must behave in certain way and consequences follow Court’s approach to causation:
- e.g. Murder – conduct (attack) + consequence (ensuring
 death)
- court must prove causation (factual + legal)->
Factual:
‘But for’ test: White [1910] failed this test thus
factual causation not established
- Problem: it makes the defendant
responsible no matter what outlandish
things happen to their victim after they
are attacked, and before they die
- If victim dies from an event that the
perpetrator could not have possibly
foreseen, perpetrator is not criminally
liable for death
- Courts are still unwilling to exonerate
completely except in most extreme
cases – if defendant’s actions
contributed to death, they will usually
be said to have caused it, even with
other causes of death operating

Legal causation
- accused’s act need not be the sole
cause of the result to be crim liable

Egg shell skull / thin skull: “Take your victim as

you find them” – no difference that victim was
more vulnerable than any other “normal”
person in scenario (Hayward (1908))
- not only to unusual physical conditions,
but also covers the ‘whole man’ as in
person refuses blood transfusion for
religious purposes

Escape clause: The intervention of a third party must be ‘free,

deliberate and informed’ to break chain of
causation

Escape cause: victim forced to escape from D as

a direct result of his conduct = reasonably
foreseeable and involuntary escape, D liable
(Hayward, Curley, Roberts)
- distinction with Williams and Davies
(1992) – victim’s escape must be
“proportionate to the threat, that is to
say that it was within the ambit of
reasonableness” so as not to be a
novus actus interveniens
- slightly subjective: whether victim’s
response was one within range of
responses to be expected of a person in
the victim’s situation, bearing the
victim’s characteristics
- immediacy (temporal proximity
between assault and escape) not a legal
requirement, provided that
 immediately before the victim escaped
he was in fear of being hurt

Suicide as novus actus interveniens:

- R v Wallace; decision to undergo
voluntary suicide within the range of
responses which might have been
expected from a victim in his situation

Drugs/alc as novus actus interveniens: Kennedy

(No. 2) [2007]; R v Field [2021]

Third party intervention as novus actus

interveniens: involuntary act of a third party
will not break the chain of causation (Pagett),
voluntary (free, deliberate and informed )
might

Medical negligence as novus actus

interveniens: strict approach; general rule is
that the conduct of a doctor, even if negligent,
does not release the defendant from liability
(Smith). only if the second cause is so
overwhelming as to make the original wound
merely part of the history can it be said that the
death does not flow from the wound.

Circumstances / state of affairs crime: involves set of circumstances, exception to general rule that actus reus of an
offense must be voluntary
- E.g. theft (property must belong to someone else), Rape actus reus – conduct (intercourse) + circumstances (lack
of consent)
- Being in charge of vehicle on a road or public place whilst unfit to drive through drink or drugs, contrary to s.4 of
the Road Traffic Act 1988
- having an offensive weapon in a public place, contrary to s.1 of the Prevention of Crime Act 1953
- State of affairs crime: simply being in a situation
- absolute liability: defendant has no control over circumstances, no mens rea involved, but offence can be
established in certain state of affairs (R v Larsonneur)

Actus rea through omission (failing to act)

- In E+W, there is generally no liability for failing to act, and no general obligation to intervene and help someone
in trouble (e.g. not criminally liable for letting child drown)
- Offenses that cannot be committed by omission: burglary, theft, robbery, rape

But 5 main exceptions of actus rea through omission (i.e. culpable omissions):
1. Special relationship
a. Case law has held it can be established either through family ties or because the defendant has
assumed a duty towards the victim – so mother and child, yes, but person and nephew, less clear and
depends on facts. Closer the relationship, more likely law imposes duty
b. R v Gibbins and Proctor (father – baby), R v Ruffell (friend-overdosed friend), R v Smith (husband-wife
who died during childbirth, not convicted)
c. Smith [1979] suggests spouses have special relationship and explores whether one can discharge other
from duty
d. Airedale NHS Trust v Bland: (patient – doctor) vegetative state patient, court granted permission to
discontinue treatment (an omissive act, not positive)
 i. VS doctor will be liable for murder or manslaughter if he does a positive act which causes death
of the patient
e. people who jointly engage in a hazardous activity whether lawful (mountaineering), or unlawful (misuse
of drugs) may also owe duties to one another but based on friendship/bond rather than joint
drug administration
2. Voluntary assumption of responsibility – even if not blood related
a. R v Stone and Dobinson – defendants failed to take proper care of Stone’s sister who died, court held
them liable
b. In R v Gibbins and Proctor Proctor voluntarily assumed responsibility towards partner’s daughter
because she lived with her partner and his daughter, and he gave her money with which she was to buy
food
3. Contractual duty or public duty– guilty of crime if they have a contractual obligation to do so
a. R v Pittwood: railway crossing gate-keeper contractually obligated to act to protect members of public
b. Dytham [1979] – officer in uniform saw man being beaten to death but did not intervene, had duty
4. Statutory duty – Legislation often imposes duty to act and breach of that duty attracts criminal liability.
a. Road Traffic Act 1988 s 170: must stop at red traffic lights or after an accident
b. Road Traffic Act 1988 s 6(4) – must provide breath specimen
c. Prosecution of statutory duty is usually prosecution for omission (thus fine, license suspension), but
prosecution for contractual / special relationship duty result in prosecution for consequence of the
omission (death)
5. Dangerous situations – R v Miller established if someone realizes they have created a dangerous situation, the
law imposes a duty on them to take reasonable steps to remove the danger

Offences Against the Person Act 1861 s20: Actus Reus – wounding or inflicting grievous bodily harm (GBH)

Intervening event – event between the conduct and the victim’s injury (e.g. push someone on the floor, floor has glass,
victim cuts face)

Mens rea
- Most criminal offence mens rea can be proven by 1) defendant intended something to happen or 2) was
reckless to whether circumstances would exist/follow their conduct
- No statutory definition of intention or recklessness in this case
- Consideration of motive behind conduct (e.g. Frank killed Sid bc Sid raped Frank’s daughter) – doesn’t make
difference to mens rea, but can affect sentence post conviction

Intention (subjective) Recklessness (subjective)

Direct: D wanted to bring it about, was their aim, Test of recklessness is subjective: Cunningham (current
purpose, goal, desire, regardless of how likely they saw law, more important), R v G
their efforts to succeed A) Defendant foresaw a risk (subjective) and took it
B) Risk was unjustified (objective) / unreasonable
a. Balance social utility, question if
reasonable person would’ve taken risk
Indirect/oblique intent: subjective, even if the main Virtual certainty does not relate to recklessness
intent was not to kill and it was a ‘byproduct’
a) that the consequence was virtually certain to occur
b) that the defendant foresaw that consequence as
virtually certain to occur (Nedrick / Woolin)
* doesn’t matter If the consequence is actually unlikely to
occur, if D saw it as virtually certain, then suffices

Guidance for jury on indirect intent (rule of evidence, so

test from which jury may find intention):
a) Jury considered death/serious injury was virtually
certain to occur
b) If so, did jury believe defendant foresaw it as a
virtual certainty to occur

Criminal Justice Act 1967 s8 – jury must not conclude that

simply because reasonable person would foresee as
virtually certain, it is automatic that defendant did as well
For act or omission
Ulterior intent: extra element of mens rea
e.g. Burglary – need ulterior intent of intention to steal,
inflict GBH, or cause criminal harm once in building in
addition to 1) actus rea of trespassing into building 2)
know they are entering / foresee risk of trespassing
Specific intent crime: the only mens rea to suffice for
conviction is mens rea of intention (murder, assault,
theft)
*voluntarily drunk defendant has no defense to basic
intent but may use voluntary intoxication to negate mens
area of strict intent (DPP v Majewski)
Basic intent crimes: intention or recklessness will satisfy
mens rea
e.g. criminal damage and most assaults

Transferred Malice: if a defendant has the malice / mens rea to commit a crime against one person, that ‘malice’
transfers to any unintended victim (R v Latimer)
- Same principles applies to murder, assaults, offences against property (criminal damage/theft)
- Only works if actus rea committed is of the same type of crime as the defendant intended (R v Pembliton)
Cases of conviction without mens rea are negligence and strict liability crimes
Negligence: conduct fell below standards of reasonable person in given situation
- Objective standard
- Relevant: D’s actions
- Irrelevant: D’s state of mind, motive, lack of experience
- Most negligence incidents give rise to civil claims / statutory offenses vs common law criminal liability
- EXCEPTIONS:
o Crimes that only require proof of negligent behavior: careless driving (contrary to s 3 of Road Traffic
Act 1988), doesn’t matter his state of mind or guilty intent – consequence doesn’t matter either, no
accident needs to have happened
 Distinction: dangerous driving is when conduct fell far below reasonable person standard, so
more than negligence
 causing or allowing the death of or serious physical harm to a child or vulnerable adult under
s.5 of the Domestic Violence, Crime and Victims Act 2004

Strict Liability: liable even if they are morally blameless,

- e.g. accidentally polluting a river, driving with excess amount of alcohol (regardless of if they knew), driving
without insurance, serving alcohol after hours
- Most strict liability offences were created by statute and it is clearly stated but if not, have to look at case law
(Sweet v Parsley, page 43-44)
- If the Act is silent there is a presumption in favor of mens rea being required, which can be rebutted
o Higher the penalty or social stigma, more likely that mens rea will be required

Actus reus and mens rea should generally coincide in time

- BUT when combination of events led to the unlawful outcome, the courts interpreted these consecutive events
as a ‘single transaction’. Thus cannot say actus reus/mens rea did not coincide in time bc part of sequence of
events (Thabo-Meli v R; R v Le Brun)

Murder/manslaughter can be caused by omission. What about assault?

- DPP v Santana-Bermudez says yes
- Conflicts with Fagan v Metropolitan Police Commissioner, which utilizes continuing act theory
o Continuing act theory: D forms the mens rea for the relevant offence at some point during the
continuing act

Ignorance of criminal law is not a defense, but ignorance of civil law can serve as basis of defense (i.e. defendant
mistakenly believed they owned property, then does not have mens rea)

Mistake of fact may allow defendant to escape liability if crime required mens rea. No separate defense of mistake, but
may negate mens rea requirement.
Malicious: according to R v Mowatt: an awareness that his act may have the consequence of causing some physical harm
to some other person, so acting intentionally or recklessly

In criminal trial, magistrate or jury decide whether taking risk justified by evaluating social utility or benefit in particular
circumstances

REVIEW:

A defendant throws a punch towards a man after they argue outside a pub, but he hits the woman beside the man
instead. The defendant picks the woman up but, as he tries to move her back into the pub, she slips from his grasp. She
bangs her head on the pavement and dies from a fractured skull. Which of the following statements best describes the
defendant’s liability for the woman’s death?

A: The doctrine of transferred malice does apply but the prosecution could also try and rely on the mens rea of
recklessness.

BURDEN OF PROOF

The legal burden of proof = on the prosecution to prove (Woolmington v DPP)

- EXCEPTION: If defendant wishes to use defense of insanity, their burden to prove, same as wanting to rely on
diminished responsibility defense in murder and few others

Standard of proof = on prosecution to satisfy beyond reasonable doubt

- If defendant is required to prove defense, they only need to do so on balance of probabilities

Evidential burden = also on prosecution to prove

- For defense, they can raise some evidence of fact to convince court that matter deserves consideration
- Usually arises in specific defense like using reasonable force in self defense
- Prosecution must then disprove issue beyond reasonable doubt

Unit 2
2 types of common law assaults
Simple assault (technical assault) – no need for physical contact (raising fist to punch)
- AR is causing victim to apprehend immediate and unlawful personal force
- MR: intention or recklessness to cause such apprehension
o “if you continue to see Tim, I will break every bone in Tim’s body”: not an assault of Fay, nor Tim as he
isn’t present. If spoken to Tim, still not because threat is conditional and not immediate
o
Battery (physical assault) (punching)
- AR: infliction of unlawful personal force (force must be applied directly (hand/punch) or indirectly (weapon))
- MR: intention to apply such force/recklessness to whether it would be applied
o No MR needed to cause injury

Acquitted in events like self defense, victim consented

Statutory assaults
Offences against Person Act 1861
S 18: Wounding or GBH (same as S 20), indictable only offense
S 47: actual body harm, either way offense
- AR: commits simple assault or battery + causes actual bodily harm
o Actual bodily harm = any hurt or injury calculated to interfere with health or comfort with victim (R v
Miller), nothing transient
- MR: intends or is reckless to simple assault or battery, no MR necessary for ABH suffered (R v Savage)
- Max imprisonment: 5 yrs

S 20: grievous bodily harm, either way

- AR: unlawfully wounds (Moriarty v Brookes) or inflicts GBH (DPP v Smith)
o Wounding: requires bleeding (not internal bruise)
o GBH: really serious harm – question of fact for jury considering impact on victim
o Includes psychiatric harm
o Could include unconsciousness, but depends on length of unconsciousness and medical evidence
needed
- MR: intention or recklessness to cause harm (R v Savage & Parmenter) – doesn’t need to be to the extent of
what was actually inflicted
- Max imprisonment: 5 yrs

in practice, prosecution will consider the most serious offence first before moving down the lesser assaults.

consent is a defense to a simple or physical assault but only to assaults which cause harm if it falls within one of the
recognized exceptions.

Question: Prepare task 1: in scenarios below, could simple assault also be an offense here as well as physical assault
given victim likely apprehended the unlawful force? Or can the simple/physical assault not be brought against a
defendant simultaneously?

Steven punches Tiana in the face Steven intends a battery and causes actual
causing her to suffer a bruised cheek. bodily harm to Tiana (s.47 OAPA 1861).

Winston pushes Xavier over during an Physical assault / battery (common law and
argument. s.39 CJA 1988) – Winston intends or is
reckless as to the application of unlawful and
personal force on Xavier. In this instance, he
intends it as the push is deliberate.

Question: Unit 2 Engage Task 2 feedback #6 states “If the MR is not satisfied for the ‘alternate’ s.18, there is also no MR
for s.20.” but isn’t this false as the MR in s 18 and s 20 are different (s 20 only requires intention/recklessness as to ABH).

Self-defense
- Governed by Common Law, s.3 Criminal Law Act 1967, s.76 Criminal Justice and Immigration Act 2008
- The defence has an evidential burden only in relation to self-defence and the prosecution must then disprove it
beyond reasonable doubt.
- A defendant cannot rely upon a mistaken belief made because they were voluntarily intoxicated.

IN TAKING NOTES: LIST OUT AUTHORITY FOR EACH DEFINITION OF WHAT BRUISE, GBH, ABH, WOUND ETC IS

Simple assault only comes into play if there is no injury, for higher offenses they don’t really care about simple assault

LSSS WEEK 3 remind peter about not needing to know what the law was but what it is now