CRIMINAL LAW ( PART 1 )

By Law Teacher

1. Introduction to Criminal Law

Criminal Law is one of the essential core subject areas required for a qualifying law degree. Crime is a common part of everyday life. Crime is around us in many forms and it is a feature of everyday news. Thus, most students will be familiar with what each offence is. However, it is important to understand that focus must be placed on legal principles derived form legislation and case law, as common conceptions of crime can be very different to its actual elements.

Criminal liability can be imposed in many instances. There is no universal definition of crime in modern criminal law. This can change over time as a result of social and political influences. It is also important to differentiate between a criminal and a civil wrong. This module covers the most popular criminal law offences and will aim to explain and take you through how and why criminal liability can be imposed on a defendant, giving you an in-depth understanding of the nature of criminal liability.

There are many offences that will be discussed in this module. They include, for example, murder, assault, fraud, sexual and property offenses and other. Thus, it is not possible to provide one definition that encompasses all these criminal offences, considering how each offence has its own specific elements.

From the chapters that follow, you will be able to recognise whether a liability can be established only by determining the following three things:

1. Whether the Defendant is responsible for the specific conduct attributable to the offence in question (actus reus), and:
2. Whether the Defendant had the state of mind (mens rea) necessary, and:
3. Whether or not there is a relevant defence.

2.1.1 Actus Reus – Introduction

Welcome to the first lesson of this module guide. We will begin with the Actus Reus. ‘Actus reus’ can be loosely translated as ‘guilty act’ and is a vital component when attempting to assess the criminal liability of an individual.

The actus reus of an offence can be found in statute or common law. There are various different ways in which an actus reus can arise, and also a plethora of ways in which it can be negated.

This section will begin by identifying and explaining the various types of actus reus’, examining how they may arise and what kind of conduct is required. Following, there will be an examination of the actus reus’ relationship with an offence as a whole through causation.

Below are some goals and objectives for you to refer to after learning this section.

Goals for this section

• To understand the importance of the actus reus to an offence and criminal law
• To understand what an actus reus is
• To understand when an actus reus will be operative
• To understand when an actus reus can be negated

Objectives for this section

• To be able to define and explain different types of Actus Reus’
• To be able to identify what type of Actus Reus an offence is
• To be able to identify whether an Actus Reus arises from a positive act or an omission
• To be able to explain the exceptions for omissions amounting to an actus reus
• To be able to identify whether an actus reus caused the harm through the principles of causation
• To be able to apply the test for factual causation
• To be able to apply the test for legal causation
• To be able to identify acts which will break the chain of causation
• To be able to explain when the act of a third party will break the chain of causation
• To be able to explain when medical intervention will break the chain of causation
• To be able to explain when acts of the victim will break the chain of causation
• To be able to explain and apply the eggshell skull rule in the context of the actus reus

2.1.2 Actus Reus Lecture

Elements of an Offence

In order for an individual to be found liable for any offence, three elements must be satisfied.

• There must be guilty conduct by the defendant (actus reus)
• The defendant must have a guilty state of mind (mens rea)
• There must be no valid defence

This chapter will examine the first element of liability, the actus reus.

The actus reus of a crime may be categories into one or multiple of three categories:

• Conduct – The actus reus requires a certain conduct
• Circumstantial – The act itself is not criminal, but the circumstance is
• Result – The actus reus requires a result.

Section 1(1) of the Criminal Damage Act 1971 provides an excellent example of all three of the above:

A person who, without lawful excuse destroys or damages property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence.

• Conduct – some action that results in damage to property;
• Circumstance – the property belongs to somebody other than the defendant;
• Result – the property is damaged or destroyed.

This may be contrasted with Section 1 of the Sexual Offences Act 2003:

1. A person (A) commits an offence if –

1. he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,
2. B does not consent to the penetration, and
3. A does not reasonably believe that B consents.

In that offence, only a conduct actus reus is present – the penetration with the penis without the victim’s consent. It is therefore the conduct of the defendant that satisfies the actus reus, no particular result is necessary.

Liability for omissions

Usually, an actus reus requires an action. There are however, several circumstances where a duty to act is imposed and where omission satisfies the actus reus of an offence.

Duty arising from a special relationship:

• Care or control of children – Section 1 of the Children and Young Persons Act 1933 – This makes it an offence for a parent or any other person over the age of 16 years who has responsibility for a child under the age of 16 years to wilfully neglect the child

• Assumption of Care for Another – The Children and Young Persons Act 1933 does not extend beyond those of the age of 16 years and therefore no direct obligation is placed on a parent to care for an independent 18-year-old child (R v Shepherd(1862) 9 Cox CC 123). However, two important judgments highlight the approach that is taken in respect of where care is assumed over an individual who is over the age of 16.

– R v Instan [1893] 1 QB 450 – The defendant cared for his aunt who was unable to feed herself or seek medical help. The defendant did not feed or seek any medical help for his aunt, despite living with her. The defendant’s assumption of care and blood relationship made him negligently liable for her death.

– R v Stone and Dobinson [1977] QB 354 – The above potential requirement of a blood relationship was removed in this case. The assumption of care by one of the defendants before the omission to care for the victim rendered the defendant guilty.

• Contractual duties – R v Pittwood(1902) 19 TLR 37 – A person may be found criminally liable if they fail to comply with a contractual duty they have to another. In this case, the defendant was employed to operate the gates at a level crossing. He failed to close the gates when a train was approaching and a cart was struck by the train killing one of the carters. Pittwood was convicted of manslaughter. A contractual duty to do a particular thing, imposes a duty to do that thing in order to prevent harm to particular individuals.

Duty Arising out of a Danger of One’s Own Making: R v Miller [1983] 2 AC 161 – Where a person creates a dangerous situation, they may be placed under an obligation to take reasonable steps to remove the danger and therefore, may be criminally liable if they do not do so.

In R v Evans [2009] EWCA Crim 650, it was held that the approach in Miller could be taken a stage further where it was held that an individual could be liable in gross negligence manslaughter when they unlawfully supply a victim with a dangerous drug and then fail to obtain help for the victim when it becomes clear that the victim has fallen ill as a result of taking the drug.

Statutory Duty: Section 170 of the Road Traffic Act 1988, for example.

Medical Treatment: In ordinary circumstances, as was set out above, doctors are required to act in order to provide their patients with proper medical treatment. This requirement is removed where a patient with the required level of capacity specifically refuses treatment. In certain limited circumstances, the court will allow doctors to remove medical treatment where it is considered to be in the patient’s best interests, such as in Airedale National Health Service Trust v Bland [1993] AC 789.

Offences where Omission Never Gives Rise to Liability: Offences that specifically require a positive act can clearly not be committed by omission, for example, assault of theft.

Exceptions

• The actus reus must be voluntary by the defendant
• Automatism (covered in chapter 10)

Causation

In order for a defendant to be found liable for an offence, it is necessary that the defendant’s actions cause the harm. Causation falls into two categories: factual and legal – both must be satisfied.

Factual Causation

The relevant test to apply is the ‘but for’ test. The question that is asked is whether ‘but for’ the defendant’s actions, the harm to the victim would have occurred – In R v White [1901] 2 KB 124, the defendant laced the victim’s drink with cyanide, the mother did not drink much of the drink, and died coincidentally that night, therefore, the defendant was not the factual cause of death.

Multiple causes: A defendant may be guilty of causing something to happen if his conduct was not the only cause of it, even if his conduct alone was not sufficient to cause the harm to occur (R v Warburton [2006] EWCA Crim 627).  It was suggested in R v Hennigan [1971] 3 All ER 133, that a 20% contribution would be sufficient and in R v Notman [1994] Crim LR 518, that anything above a minimal contribution would suffice.

Legal Causation

Legal causation has the effect of limiting this potentially broad liability, as factual causation is very easy to prove. There are three specific elements that must be satisfied for legal causation

• The cause was substantial (more than slight or trifling – R v Kimsey [1996] Crim LR 35
• Defendant must be blameworthy to some extent – R v Dalloway (1847) 2 Cox CC 273
• Defendant’s actions must be operating on the victim at the time that liability arises – R v Pagett (1983) 76 CR App R 279

Novus Actus Interveniens

These elements may not be present and the defendant may avoid liability even if found to have factually caused the victim’s harm in two circumstances. These can be categorised as:

• some act of another person that intervenes between the defendant’s conduct and the end result;
• or some event which occurs between the defendant’s conduct and the end result.

These circumstances are often described collectively as a novus actus interveniens.

Act of a third party: Only if the act of a third party renders the defendant’s actions non-operable on the victim will this break the chain of causation

Where both parties’ actions can be considered collectively to result in the harm suffered by the victim, both potential defendants are considered to have caused the harm. It does not matter that one defendant’s actions are the main cause of the harm and one defendant’s are not. All that is necessary, is that the defendant can be considered to a contributed significantly to the harm (R v Pagett (1983) 76 Cr App R 279).

Causation will not be broken unless the actions of the third party are free, deliberate and informed – R v Pagett,

Medical Intervention

In R v Jordan(1956) 40 Cr App R 152, the defendant was admitted to hospital with stab wounds. When the victim died 8 days later, his wounds had largely healed and it was held that it was medical treatment subsequent to the healing of the wounds that caused the death, rather than the wounds themselves. The wounds were not an operating and substantial cause of the death.

In R v Smith [1959] 2 QB 35 on broadly similar facts to Jordan the defendant was unable to rely on the intervening medical acts, even though these were found to be extremely poor, because in this context, the victim’s wounds were still operating and substantial at the time of the death.

The threshold was narrowed in R v Cheshire [1991] 1 WLR 844, where it was held that the chain of causation will be broken by poor medical treatment if the treatment is ‘… so independent of [the defendant’s] acts, and in itself so potent in causing death, that [the court] regard[s] the contribution made by [the defendant’s] acts as insignificant’.

The effect of medical treatment on causation must be considered very carefully and the remaining effect of the initial wound must be looked at in detail. It is only safe to say that the chain of causation will only be broken where the original injury is insignificant in the face of the poor medical treatment. If any remnant of the original injury remains, it is unlikely that even very poor medical treatment will mean that a defendant is not found to have caused a victim’s harm.

Acts of the victim

The general position in respect of acts of victims is that an individual should be held responsible for acts that they undertake freely.

In R v Kennedy(No 2)[2007] UKHL 38, for example, it was held that a person who provided another will a syringe containing heroin could not be held liable when the victim injected themselves with it. This was because the act of injection was carried out freely and therefore broke the chain of causation from the act of providing the drug.

This approach does not apply where the acts of a victim cannot be considered to have been carried out freely. The most common situation where this principle is applied is where a victim is attempting to escape from a defendant. In this case, it is a question of whether the actions of the defendant were reasonable in the circumstances – R v Williams and Davies [1992] 1 WLR 380

Eggshell Skull Rule

This rule requires the defendant ‘must take their victim as they find them’ – a victim’s particularly weakness to something will be irrelevant and will not break the chain of causation.

In R v Hayward(1908) 21 Cox CC 692, the defendant was found liable for his wife’s death from a pre-existing heart condition when he threatened her causing her to suffer a heart attack. The approach was taken further in R v Blaue [1975] 1 WLR 1411 where the defendant stabbed a woman who was a Jehovah’s Witness. As a result of her religious beliefs the victim refused a blood transfusion, which would have saved her life. The defendant was, however, found liable for her death on the basis that the religious beliefs of the victim could not be found to interfere with causation.

Acts of God

An act of God is defined as freak natural phenomenon, so unpredictable that it ought to excuse the defendant of all liability (Southern Water Authority v Pegrum [1989] Crim LR 442). Such an act must be completely unpredictable. Such an act will break the chain of causation.

2.1.2 Actus Reus Lecture

Elements of an Offence

In order for an individual to be found liable for any offence, three elements must be satisfied.

• There must be guilty conduct by the defendant (actus reus)
• The defendant must have a guilty state of mind (mens rea)
• There must be no valid defence

This chapter will examine the first element of liability, the actus reus.

The actus reus of a crime may be categories into one or multiple of three categories:

• Conduct – The actus reus requires a certain conduct
• Circumstantial – The act itself is not criminal, but the circumstance is
• Result – The actus reus requires a result.

Section 1(1) of the Criminal Damage Act 1971 provides an excellent example of all three of the above:

A person who, without lawful excuse destroys or damages property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence.

• Conduct – some action that results in damage to property;
• Circumstance – the property belongs to somebody other than the defendant;
• Result – the property is damaged or destroyed.

This may be contrasted with Section 1 of the Sexual Offences Act 2003:

1. A person (A) commits an offence if –

1. he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,
2. B does not consent to the penetration, and
3. A does not reasonably believe that B consents.

In that offence, only a conduct actus reus is present – the penetration with the penis without the victim’s consent. It is therefore the conduct of the defendant that satisfies the actus reus, no particular result is necessary.

Liability for omissions

Usually, an actus reus requires an action. There are however, several circumstances where a duty to act is imposed and where omission satisfies the actus reus of an offence.

Duty arising from a special relationship:

• Care or control of children – Section 1 of the Children and Young Persons Act 1933 – This makes it an offence for a parent or any other person over the age of 16 years who has responsibility for a child under the age of 16 years to wilfully neglect the child

• Assumption of Care for Another – The Children and Young Persons Act 1933 does not extend beyond those of the age of 16 years and therefore no direct obligation is placed on a parent to care for an independent 18-year-old child (R v Shepherd(1862) 9 Cox CC 123). However, two important judgments highlight the approach that is taken in respect of where care is assumed over an individual who is over the age of 16.

– R v Instan [1893] 1 QB 450 – The defendant cared for his aunt who was unable to feed herself or seek medical help. The defendant did not feed or seek any medical help for his aunt, despite living with her. The defendant’s assumption of care and blood relationship made him negligently liable for her death.

– R v Stone and Dobinson [1977] QB 354 – The above potential requirement of a blood relationship was removed in this case. The assumption of care by one of the defendants before the omission to care for the victim rendered the defendant guilty.

• Contractual duties – R v Pittwood(1902) 19 TLR 37 – A person may be found criminally liable if they fail to comply with a contractual duty they have to another. In this case, the defendant was employed to operate the gates at a level crossing. He failed to close the gates when a train was approaching and a cart was struck by the train killing one of the carters. Pittwood was convicted of manslaughter. A contractual duty to do a particular thing, imposes a duty to do that thing in order to prevent harm to particular individuals.

Duty Arising out of a Danger of One’s Own Making: R v Miller [1983] 2 AC 161 – Where a person creates a dangerous situation, they may be placed under an obligation to take reasonable steps to remove the danger and therefore, may be criminally liable if they do not do so.

In R v Evans [2009] EWCA Crim 650, it was held that the approach in Miller could be taken a stage further where it was held that an individual could be liable in gross negligence manslaughter when they unlawfully supply a victim with a dangerous drug and then fail to obtain help for the victim when it becomes clear that the victim has fallen ill as a result of taking the drug.

Statutory Duty: Section 170 of the Road Traffic Act 1988, for example.

Medical Treatment: In ordinary circumstances, as was set out above, doctors are required to act in order to provide their patients with proper medical treatment. This requirement is removed where a patient with the required level of capacity specifically refuses treatment. In certain limited circumstances, the court will allow doctors to remove medical treatment where it is considered to be in the patient’s best interests, such as in Airedale National Health Service Trust v Bland [1993] AC 789.

Offences where Omission Never Gives Rise to Liability: Offences that specifically require a positive act can clearly not be committed by omission, for example, assault of theft.

Exceptions

• The actus reus must be voluntary by the defendant
• Automatism (covered in chapter 10)

Causation

In order for a defendant to be found liable for an offence, it is necessary that the defendant’s actions cause the harm. Causation falls into two categories: factual and legal – both must be satisfied.

Factual Causation

The relevant test to apply is the ‘but for’ test. The question that is asked is whether ‘but for’ the defendant’s actions, the harm to the victim would have occurred – In R v White [1901] 2 KB 124, the defendant laced the victim’s drink with cyanide, the mother did not drink much of the drink, and died coincidentally that night, therefore, the defendant was not the factual cause of death.

Multiple causes: A defendant may be guilty of causing something to happen if his conduct was not the only cause of it, even if his conduct alone was not sufficient to cause the harm to occur (R v Warburton [2006] EWCA Crim 627).  It was suggested in R v Hennigan [1971] 3 All ER 133, that a 20% contribution would be sufficient and in R v Notman [1994] Crim LR 518, that anything above a minimal contribution would suffice.

Legal Causation

Legal causation has the effect of limiting this potentially broad liability, as factual causation is very easy to prove. There are three specific elements that must be satisfied for legal causation

• The cause was substantial (more than slight or trifling – R v Kimsey [1996] Crim LR 35
• Defendant must be blameworthy to some extent – R v Dalloway (1847) 2 Cox CC 273
• Defendant’s actions must be operating on the victim at the time that liability arises – R v Pagett (1983) 76 CR App R 279

Novus Actus Interveniens

These elements may not be present and the defendant may avoid liability even if found to have factually caused the victim’s harm in two circumstances. These can be categorised as:

• some act of another person that intervenes between the defendant’s conduct and the end result;
• or some event which occurs between the defendant’s conduct and the end result.

These circumstances are often described collectively as a novus actus interveniens.

Act of a third party: Only if the act of a third party renders the defendant’s actions non-operable on the victim will this break the chain of causation

Where both parties’ actions can be considered collectively to result in the harm suffered by the victim, both potential defendants are considered to have caused the harm. It does not matter that one defendant’s actions are the main cause of the harm and one defendant’s are not. All that is necessary, is that the defendant can be considered to a contributed significantly to the harm (R v Pagett (1983) 76 Cr App R 279).

Causation will not be broken unless the actions of the third party are free, deliberate and informed – R v Pagett,

Medical Intervention

In R v Jordan(1956) 40 Cr App R 152, the defendant was admitted to hospital with stab wounds. When the victim died 8 days later, his wounds had largely healed and it was held that it was medical treatment subsequent to the healing of the wounds that caused the death, rather than the wounds themselves. The wounds were not an operating and substantial cause of the death.

In R v Smith [1959] 2 QB 35 on broadly similar facts to Jordan the defendant was unable to rely on the intervening medical acts, even though these were found to be extremely poor, because in this context, the victim’s wounds were still operating and substantial at the time of the death.

The threshold was narrowed in R v Cheshire [1991] 1 WLR 844, where it was held that the chain of causation will be broken by poor medical treatment if the treatment is ‘… so independent of [the defendant’s] acts, and in itself so potent in causing death, that [the court] regard[s] the contribution made by [the defendant’s] acts as insignificant’.

The effect of medical treatment on causation must be considered very carefully and the remaining effect of the initial wound must be looked at in detail. It is only safe to say that the chain of causation will only be broken where the original injury is insignificant in the face of the poor medical treatment. If any remnant of the original injury remains, it is unlikely that even very poor medical treatment will mean that a defendant is not found to have caused a victim’s harm.

Acts of the victim

The general position in respect of acts of victims is that an individual should be held responsible for acts that they undertake freely.

In R v Kennedy(No 2)[2007] UKHL 38, for example, it was held that a person who provided another will a syringe containing heroin could not be held liable when the victim injected themselves with it. This was because the act of injection was carried out freely and therefore broke the chain of causation from the act of providing the drug.

This approach does not apply where the acts of a victim cannot be considered to have been carried out freely. The most common situation where this principle is applied is where a victim is attempting to escape from a defendant. In this case, it is a question of whether the actions of the defendant were reasonable in the circumstances – R v Williams and Davies [1992] 1 WLR 380

Eggshell Skull Rule

This rule requires the defendant ‘must take their victim as they find them’ – a victim’s particularly weakness to something will be irrelevant and will not break the chain of causation.

In R v Hayward(1908) 21 Cox CC 692, the defendant was found liable for his wife’s death from a pre-existing heart condition when he threatened her causing her to suffer a heart attack. The approach was taken further in R v Blaue [1975] 1 WLR 1411 where the defendant stabbed a woman who was a Jehovah’s Witness. As a result of her religious beliefs the victim refused a blood transfusion, which would have saved her life. The defendant was, however, found liable for her death on the basis that the religious beliefs of the victim could not be found to interfere with causation.

Acts of God

An act of God is defined as freak natural phenomenon, so unpredictable that it ought to excuse the defendant of all liability (Southern Water Authority v Pegrum [1989] Crim LR 442). Such an act must be completely unpredictable. Such an act will break the chain of causation.

2.1.3 Actus Reus Lecture – Hands on Example

The following scenario is intended to test your knowledge of the issues that may arise in relation to the actus reus of an offence. The issue in this context is whether the potential defendant is likely to be found to have satisfied the required guilty conduct elements of the offence. You do not need to consider mens rea, whether the defendant has a guilty state of mind.

In situations where questions arise as to actus reus it is often the distinction between the approaches that can be followed that is relevant. Therefore, whilst the facts of the scenario may suggest one approach, you must analyse the potential alternative approaches in order to be certain that the approach you are suggesting should be followed is correct. In other words, it is not enough to simply state that this is the correct answer. In this kind of scenario, the wrong answers often need to be eliminated.

There a three broad steps that should be followed:

• Identify the actus reus of the offence from either the statutory or common law definition;
• Consider whether these elements are present from the conduct of the defendant;
• Decide whether the defendant will be found likely to have caused any of the harm that the victim suffers.

Scenario

Criminal Damage Act 1971, s 1(1)

A person who, without lawful excuse destroys or damages property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence.

1. Peter, a keen cyclist, is travelling along a busy main road, when Julie pulls her out in front of him in her car. Peter is furious because he is sick and tired of inconsiderate car drivers ignoring cyclists. In fact, he was knocked off his bicycle two weeks ago on the same stretch of road. Peter shouts and shakes his fist at Julie, who, despite seeing him, ignores him and drives off. This makes Peter even more angry and so, because the traffic is quite heavy and slow moving, he follows Julie to work, where she parks her car. When, Julie gets out of the car, Peter cycles up to it and kicks the door leaving a large dent.

Does Peter satisfy the requirements of the actus reus of criminal damage?

2. Incensed by Peter’s behaviour, Julie runs towards him brandishing a bottle of mace spray that she keeps in her handbag. Peter notices Julie and, in order to avoid being sprayed in the face, jumps out of the way and straight into the path of Michael who is arriving at work on his motorbike. Peter is hit by the motorbike and falls to the floor with minor cuts to his knees and a broken collar bone.

Consider Julie’s liability for Peter’s injuries (you do not need to address any specific offences).

3. Graham works as a security guard at Julie’s place of work. It is his job to ensure that only authorised personnel enter the car park. Graham saw Peter and knew that he was not supposed to be in the car park, but because Peter looked so angry, Graham decided that he would not stop him entering and hid in his office instead.

Consider Graham’s potential liability.

4. Graham, after seeing Peter’s fall telephones an ambulance. The ambulance takes Peter to the local hospital where his injuries are treated in accident and emergency. However, because the break to Peter’s collar bone is quite serious, it is decided that he should remain in hospital for the next few days. During his stay in hospital, the cuts to Peter’s knees practically heal, but, just to be on the safe side, Dr Brown, 5 days after Peter’s admission, decides to prescribe some penicillin, despite it being clear from Peter’s medical records that he has a severe allergy. Peter takes the drug and dies within minutes from anaphylactic shock.

Julie is charged with Peter’s manslaughter (you do not need to be concerned about the elements of this offence). She claims at trial that Dr Brown’s treatment broke the chain of causation between her actions and Peter’s death. Is this approach likely to succeed?