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, a Crown Court, is situated on the site of the former bailey of the London wall]]

English criminal law refers to the body of law in England and Wales which deals with crimes and their consequences. Criminal acts are considered offences against the whole of a community. The state, in addition to certain international organisations, have responsibility for crime prevention, for bringing the culprits to justice, and for dealing with convicted offenders. The police, the criminal courts and prisons are all publicly funded services, though the main focus of criminal law concerns the role of the courts, how they apply criminal statutes and common law, and why some forms of behaviour are considered criminal.

The fundamentals of a crime are known as the actus reus and the mens rea. These two Latin terms mean "guilty act" (doing that which is prohibited) and "guilty mind" (i.e. the intent to commit the crime). The traditional view is that moral culpability requires that one should have recognised or intended that one was acting wrongly. Nevertheless, most jurisdictions have as many strict liability offences, which criminalise behaviour without the need to show moral wrongdoing. These are usually regulatory in nature, where the result of breach could have particularly harmful results. Examples include drunk driving, or statutory rape.

Some of the most serious criminal offences involve death, such as murder and manslaughter. Non-deadly offences include actual or grievous bodily harm. A variety of offences relate to property, like criminal damage, theft, robbery or burglary. Importantly, one can still be liable for helping another person's criminal act, conspiring to do something prohibited or merely attempting an offence. Defences exist to some crimes. A person who is accused may in certain circumstances plead they are insane and did not understand what they were doing, that they were not in control of their bodies, they were intoxicated, mistaken about what they were doing, acted in self defence, acted under duress or out of necessity, or were provoked. These are issues to be raised at trial, for which there are detailed rules of evidence and procedure to be followed.

Contents

Criminal law history

The distinction between wrongs to the whole community and wrongs against individuals still had not been established by Roman times, and punishment for infringement of one's legal rights could be carried out by the victim himself. The pater familias was in possession of all the family and its property (including slaves). Hence, interference with any property was enforced by the pater. The Commentaries of Gaius on the Twelve Tables treated furtum (modern theft) as a tort. Similarly, assault and violent robbery were allied with trespass as to the pater's property. For example, the rape of a slave would be the subject of compensation to the pater as having trespassed on his "property") and breach of such laws created a vinculum juris (an obligation of law) that could only be discharged by the payment of monetary compensation (modern damages).

The first signs of the modern distinction between crimes and civil matters emerged during the Norman Conquest of England in 1066.[1] The earliest criminal trials had very little, if any, settled law to apply. However, the civil delictual law was highly developed and consistent in its operation (except where the King wanted to raise money by selling a new form of Writ).

The development of the "State" dispensing justice in a court only emerged parallel to or after the emergence of the concept of sovereignty. It was only in the 18th century that European countries began operating police forces. From this point, criminal law had the mechanisms for enforcement, which allowed for its development as a credible and self-sufficient entity.

Criminal law elements

The two basic elements of a crime are the act of doing that which is criminal, and the intention to carry it out. In Latin this is called the actus reus and the mens rea. In many crimes however, there is no necessity of showing criminal intention, which is why the term "strict liability" is used.

Actus reus

presiding]]

Actus reus is Latin for "guilty act" and is the physical element of committing a crime. It is usually the application or threat of unlawful force, though exceptionally an omission or failure to act can result in liability. Simple examples might be A hitting B with a stick, or X pushing Y down a water well. These are guilty acts and the unlawful application or force. Alternatively, one may have a pre-existing duty to another person and by deliberately not performing it, one commits a crime. For instance, not giving food is an omission rather than an act, but as a parent one has a duty to feed one's children. Pre-existing duties can arise also through contract,[2] a voluntary undertaking,[3] a blood relation with who one lives,[4] and occasionally through one's official position.[5] As the 19th century English judge, Lord Coleridge CJ wrote,

“It would not be correct to say that every moral obligation involves a legal duty; but every legal duty is founded on a moral obligation.”[6]

Furthermore, one can become bound by a duty to take reasonable steps to correct a dangerous situation that one creates. In R v Miller[7] a squatter flicked away a still lit cigarette, which landed on a mattress. He failed to take action, and after the building had burned down, he was convicted of arson. He failed to correct the dangerous situation he created, as he was duty bound to do.[8] In many countries in Europe and North America, good samaritan laws also exist, which criminalise failure to help someone in distress (e.g. a drowning child). On the other hand, it was held in the U.K. that switching off the life support of someone in a persistent vegetative state is an omission to act and not criminal. Since discontinuation of power is not a voluntary act, not grossly negligent, and is in the patient's best interests, no crime takes place.[9]

If someone's act is to have any consequence legally, it must have in some way caused a victim harm. The legal definition of "causation" is that "but for" the defendant's conduct, the victim would not have been harmed.[10] If more than one cause for harm exists (e.g. harm comes at the hands of more than one culprit) the rule states that to be responsible, one's actions must have "more than a slight or trifling link" to the harm.[11] Another important rule of causation is that one must "take his victim as he finds him." For instance, if P gives his friend Q a playful slap on the head, but Q suffers from a rare cranial condition and dies, then P can be guilty of manslaughter regardless of how unlucky he is to have bickered with Q. This is known as the thin skull rule.[12]

Between the defendant's acts and the victim's harm, the chain of causation must be unbroken. It could be broken by the intervening act (novus actus interveniens) of a third party, the victim's own conduct,[13] or another unpredictable event. A mistake in medical treatment usually will not break the chain, unless the mistakes are in themselves "so potent in causing death."[14] For instance, if emergency medics dropped a stab victim on the way to the hospital and performed the wrong resuscitation, the attacker would not be absolved of the crime.[15]

The interplay between causation and criminal responsibility is notoriously difficult, and many outcomes are criticised for their harshness to the unwitting defendant and sidestepping of hospitals' or the victim's own liability. In R v Dear[16] a stab victim reopened his wounds while in the hospital and died. But despite this suicidal behaviour, the attacker was still held fully responsible for murder.

Mens rea

had the mens rea for robbing the rich, despite his good intentions of giving to the poor]]

Mens rea is another Latin phrase, meaning "guilty mind". It is the mental element of committing a crime and establishes the element of intent. Together with an actus reus, mens rea forms the bedrock of criminal law, although strict liability offences have encroached on this notion. A guilty mind means intending to do that which harms someone. Intention under criminal law is separate from a person's motive. If Mr. Hood robs from rich Mr. Nottingham because his motive is to give the money to poor Mrs. Marian, his "good intentions" do not change his criminal intention to commit robbery.[17] In the special case of murder, the defendant must have appreciated (i.e. consciously recognised) that either death or serious bodily harm would be the result of his actions. In R v Woolin,[18] a man in a fit of temper threw his three month old son onto a wall, causing head injuries from which he died. Although death was certain and the father should have realised, he did not in the least desire that his son be killed or harmed. The English House of Lords sentenced him for manslaughter, but not murder.[19] If a defendant has foresight of death or serious injury the jury may, but is not bound, to find the requisite mens rea.[20]

A lower threshold of mens rea is satisfied when a defendant recognises that some act is dangerous but decides to commit it anyway. This is recklessness. For instance if C tears a gas meter from a wall to get the money inside, and knows this will let flammable gas escape into a neighbour's house, he could be liable for poisoning.[21] This is called "subjective recklessness," though in some jurisdictions "objective recklessness" qualifies as the requisite criminal intent, so that if someone ought to have recognised a risk and nevertheless proceeded, he may be held criminally liable.[22] A novel aspect of the law on intention is that if one intends to harm somebody, it matters not who is actually harmed through the defendant's actions. The doctrine of transferred malice means, for instance, that if a man strikes another with his belt, but the belt bounces off and hits a nearby woman, the man is guilty of battery toward her.[23] Malice can also be general, so that terrorists who plant bombs to kill random people are certainly guilty.

The final requirement states that both an actus reus and a mens rea coincide. For instance, in R v Church,[24] For instance, Mr. Church had a fight with a woman which rendered her unconscious. He attempted to revive her, but gave up, believing her to be dead. He threw her, still alive, in a nearby river, where she drowned. The court held that Mr. Church was not guilty of murder (because he did not ever desire to kill her), but was guilty of manslaughter. The "chain of events", his act of throwing her into the water and his desire to hit her, coincided. In this manner, it does not matter when a guilty mind and act coincide, as long as at some point they do.[25]

Strict liability

Template:Seealso Not all crimes have a mens rea requirement, or the threshold of culpability required may be reduced. For example, it might be sufficient to show that a defendant acted negligently, rather than intentionally or recklessly. In offences of absolute liability, other than the prohibited act, it may not be necessary to show anything at all, even if the defendant would not normally be perceived to be at fault. Most strict liability offences are created by statute, and often they are the result of ambiguous drafting.

Criminal law offences

Fatal offences

Murder is considered by many the most serious crime. It differs from manslaughter because murder is committed with the full intention of unlawfully ending the life of another. This means that mens rea was present: the intention that the victim would die or be caused serious bodily harm. In the case of voluntary manslaughter, some kind of defence, for instance, provocation or diminished responsibility is present to mitigate a murder charge. Manslaughter of a voluntary nature means someone meant to bring about the consequences, but a partial defence exists given the defendant's irrational state of mind. Involuntary manslaughter refers to death unlawfully caused. This means that some unlawful act is done and the final consequence, if not too remote, is another person's death. The requisite mens rea is usually recklessness. The concept of gross negligence manslaughter exists in some jurisdiction meaning that a person can be guilty and criminally liable with ever having subjectively foreseen that outcome.

Sexual Offences

Template:Seealso

Personal offences

Template:Seealso Template:Seealso Assault is intentionally putting another person into fear of immediate harm. For instance, in Tuberville v Savage, a Knight told a man that were it not for the assizes being in town he would not tolerate the man's language toward him. This was considered not threatening, not an assault, since the man could not be in fear of immediate harm, as the travelling courts were nearby.

A battery is an unlawful touching, although this does not include everyday knocks and jolts to which people silently consent as the result of crowds. Rape and sexual abuse count among the strongest crimes in terms of sentencing. Rape involves sexual intercourse when the victim has not positively consented to the act.

Property offences

Template:Seealso Criminal damage is the wilful damaging of another's property. Theft is included in propert offences, defined as the dishonest appropriation of property belonging to another with an intention to permanently deprive the other of it.[26] Robbery involves theft from a person and an element of force, while burglary is theft outside some kind of inhabited premises.

Participatory offences

Template:Seealso Participatory offences include aiding, abetting, counselling, or procuring the act of some crime or conspiracy. It also includes being an accomplice to criminal behaviour.

Criminal law defences

There are a whole range of defences, depending on the wording of a criminal statute or obscure rules of the common law. There are however seven general defences, which mitigate or extinguish the defendant's sentence. Insanity, automatism, mistake and self defence are the first four and operate as defences to any offence. Intoxication is only a defence where the defendant's state confused and dissolved his criminal intention. Duress operates as a defence to anything except murder. When an accused person pleads a defence of duress he/she is claiming that he committed the 'actus reus' of the crime with 'mens rea' So, the defence of duress operates as to excuse the culpability of the accused. If the defence is accepted, he/she is excused from the normal consequences of conviction and sentencing which would normally flow from the commission of the prohibited act, this excuse operating as a shield which protects the accused from conviction and sentence.

Consent

The consent of the 'victim' of what would otherwise be an offence is sometimes an excuse that will exculpate the offender from criminal liability. This is of particular relevance to offences against the person and against property.

Insanity

Template:Seealso 's A Rake's Progress, depicting the world's oldest psychiatric hospital, Bethlem Hospital]] Insanity, known as mental disorder in Australia and Canada, is a deranged state of mind, and consequently no defence to strict liability crimes, where mens rea not is a requirement. An old case which lays down typical rules on insanity is M'Naghten's case[27] where a man suffering extreme paranoia believed the Tory party of the United Kingdom, were persecuting him. He wanted to shoot and kill Prime Minister Sir Robert Peel, but got Peel's secretary in the back instead. Mr M'Naghten was found to be insane, and instead of prison, put in a mental hospital. The case produced the rules that a person is presumed to be sane and responsible, unless it is shown that (1) he was labouring under such a defect of reason (2) from disease of the mind (3) as not to know the nature and quality of the act he was doing, or if he did know it, that he did not know he was doing what was wrong. These elements must be proven present on the balance of probabilities.

"Defect of reason" means much more than, for instance, absent mindedness making a lady walk from a supermarket without paying for a jar of mincemeat.[28] A "disease of the mind" includes not just brain diseases, but any impairment "permanent or transient and intermittent" so long as it is not externally caused (e.g. by drugs) and it has some effect on one's mind.[29] So epilepsy can count, as can an artery problem causing temporary loss of consciousness (and a man to attack his wife with a hammer).[30] Diabetes may cause temporary "insanity"[31] and even sleep walking has been deemed "insane".[32] "Not knowing the nature or wrongness of an act" is the final threshold which confirms insanity as related to the act in question. In R v Windle[33] a man helped his wife commit suicide by giving her a hundred aspirin. He was in fact mentally ill, but as he recognised what he did and that it was wrong by saying to police "I suppose they will hang me for this", he was found not insane and guilty of murder.[34]

Diminished responsibility

If one succeeds in being declared "not guilty by reason of insanity" then the result is going to an asylum, a clearly inadequate result for somebody suffering from occasional epileptic fits, and many conditions unrecognised by nineteenth century medicine. The law has therefore been reformed in many ways.[35] One important reform, introduced in many jurisdictions by statute[36] is the diminished responsibility defence. The requirements are usually more lax, for instance, being "an abnormality of mind" which "substantially impair[s] mental responsibility for his acts and omission in doing or being a party to the killing."[37]

Automatism

Template:Seealso Automatism is a state where the muscles act without any control by the mind, or with a lack of consciousness.[38] A successful automatism defence negatives the actus reus element of a crime. If someone raises this defence, then it is for the prosecution to disprove. Automatismic actions can be a product of insanity, or not. One may suddenly fall ill, into a dream like state as a result of post traumatic stress,[39] or even be "attacked by a swarm of bees" and go into an automatic spell.[40] However to be classed as an "automaton" means there must have been a total destruction of voluntary control, which does not include a partial loss of consciousness as the result of driving for too long.[41]

Automatism can also be self induced, particularly by taking medical treatment.[42] Self induced automatism can always be a defence to crimes of specific intent (i.e. the more serious crimes like murder, grievous bodily harm, theft, robbery and burglary). But automatism is no defence to other crimes (i.e. of basic intent, e.g. manslaughter, assault and battery) if the defendant was reckless in becoming automatismic or it happens through alcohol or illegal drugs. Only where the defendant does not know his actions will lead to an automatismic state where he could harm something can self induced automatism be a defence to these crimes. For example, in R v Hardie[43] Mr Hardie took his girlfriend's valium, because she had just kicked him out and he was depressed. She encouraged him to take them, to make him feel better. But he got angry and set fire to the wardrobe. It was held that he should not be convicted of arson because he expected the valium to calm him down, and this was its normal effect.

Intoxication

Template:Seealso ]] Technically, intoxication is not a defence, but negatives the mens rea for specific intent offences (e.g. it commutes a murder sentence to manslaughter). In other words, a defendant may have been so drunk, or drugged, that he was incapable of forming the criminal intention required.[44] Voluntary intoxication is considered reckless, a state of basic intent,[45] which means one cannot have ones sentence reduced for crimes of basic intent (e.g. manslaughter, assault, etc). So for instance, in R v Sheehan and Moore two viciously drunken scoundrels threw petrol on a tramp and set fire to him. They got off for murder, but still went down for manslaughter, since that is a crime of basic intent. Of course, it can well be the case that someone is not drunk enough to support any intoxication defence at all.[46] On the other hand, if someone becomes involuntarily intoxicated, because her drink is laced or spiked, then the question is whether the normal mens rea was present at the incident's time. So where a blackmailer drugged a man's coffee, invited him to abuse a 15 year old boy, and photographed it, the man was denied the defence of intoxication because the court simply did not believe that the man did not intend to commit the abuse.[47]

Sometimes intoxicated people make mistakes, as in R v Lipman[48] where the defendant took LSD, thought his girlfriend was a snake and strangled her. Here, intoxication operated as a defence because Mr Lipman was mistaken in his specific intent of killing a snake. But intoxication does not negative the basic intent crime of manslaughter, with his "reckless course of conduct" in taking drugs. Lastly, while a mistake about a person or the actual action is acceptable, a mistake about how much force to use to defend oneself is not. Using a sledgehammer to fend off an "attacker" after 20 pints of beer is disproportionate.[49]

Mistake

"I made a mistake" is only a defence in criminal law if the mistake is about a fact and is genuine, whether or not it is reasonable to make.[50] In R v Williams[51] an upstanding citizen saw a man, apparently, assault a boy. When he intervened the man said he was a police officer arresting the boy for mugging. Mr Williams demanded identification. The man could not show any, so Mr Williams got involved. Defending himself against a charge of assaulting a police officer, Mr Williams said he made an honest mistake. The court agreed and he was set free.

Self defence

Template:Seealso In all instances, one may only use reasonable, and not excessive force in self defence. In R v Clegg[52] a soldier in Northern Ireland shouted at a car approaching a checkpoint to halt. When it did not, Mr Clegg fired three shots, killing a woman. It had hit her in the back, and Mr Clegg was sentenced for murder because by then the car had passed, the force was excessive and there was no justification for self defence. Another way of expressing the rule on defensive force is that it must be proportionate to the threat. For instance, as the notorious case of R v Martin[53] shows, shooting a teenager in the back with a shotgun several times as he tries to escape is not a justified or proportionate exercise of self defensive force for Norfolk hermit, even if robbers had trespassed on his property. In that case, Mr Martin was found to have diminished responsibility for his actions, because he was mentally ill.

Duress

, a mediaeval hero displaying qualities that Lord Halisham did not expect everyone could display under duress]] One who is "under duress" is forced into something. Duress can be a defence for all crimes, except murder, attempted murder, being an accessory to murder[54] and in many countries, treason. In relation to such serious crimes, Lord Halisham, Lord Griffiths and Lord Mackay, giving their decision in the appeal case R v Howe[55] said that to allow the defence of duress as a defence to murder would involve overruling the decision in Dudley and Stephens (1884), which decided that duress was not a defence to a charge of murder. Following R v Howe, there was uncertainty as to whether duress would be available as a defence on a charge of attempted murder, but Lord Griffiths, obiter, stated that it was not. This arose before the Gotts case went to the House of Lords in 1992. R v Gotts dealt with the problems of attempted murder.

If it is shown that the defendant reasonably believed the threat,[56] it must also be shown that "a sober person of reasonable firmness, sharing the characteristics of the accused" would have responded similarly.[57] Examples of someone's characteristics that might be relevant are age, gender, pregnancy, physical disability, mental illness, sexuality, but not IQ.[58]

Using duress as a defence is limited in a number of ways. The accused must not have foregone some safe avenue of escape.[59] The duress must have been an order to do something specific, so that one cannot be threatened with harm to repay money and then choose to rob a bank to repay it, because that choice implies a free will.[60] Intoxication is irrelevant to duress, but one cannot also say one is mistaken about duress, when intoxicated. Then a number of cases turn on the choice to join a gang, and inevitably do bad things. The rule is that where one is aware of the gang's nature and puts himself in a position where he could be threatened, duress is not a defence. So joining a gang that carries out armed robberies probably precludes any duress defence[61] but joining a shoplifting gang may well not.[62]

Necessity

]] Whilst a duress defence relates to the situation where a person commits an offence to avoid death or serious injury to himself or another when threatened by a third party, the defence of necessity related to the situation where a person commits an offence to avoid harm which would ensue from circumstances in which he/she or another are placed. Duress operates as an excuse but necessity operates as a justification, rendering the defendant's conduct lawful. Necessity is a defence that argues "I desperately needed to do X, because consequence Y would have been really bad." Logically, this is identical to the concept of "duress of circumstance", where the situation rather than a person is the threat.[63] The common elements are (1) an act is done to prevent a greater evil (2) the evil must be directed to the defendant or someone for who he is responsible (3) the act must have been a proportionate response. But only necessity is a potential defence for murder.

The defence of necessity was first tested in the 19th century English case of R v Dudley and Stephens.[64] The Mignotte, sailing from Southampton to Sydney, sank. Three crew members and a cabin boy were stranded on a raft. They were starving and the cabin boy close to death. Driven to extreme hunger, the crew killed and ate the cabin boy. The crew survived and were rescued, but put on trial for murder. They argued it was necessary to kill the cabin boy to preserve their own lives. Lord Coleridge, expressing immense disapproval, ruled, "to preserve one's life is generally speaking a duty, but it may be the plainest and the highest duty to sacrifice it." The men were sentenced to hang, but public opinion, especially among seafarers, was outraged and overwhelmingly supportive of the crew's right to preserve their own lives. In the end, the Crown commuted their sentences to six months.

Since then, in the 1970s, in several road traffic cases, although obiter dicta, it has been stated that there is a defence of necessity. In Johnson v Phillips [1975], Justice Wein stated that a police constable would be entitled to direct motorists to disobey road traffic regulations if this was reasonably necessary for the protection of life or property. In a later case, Woods v Richards[65], Justice Eveleigh stated that the defence of necessity depended on the degree of emergency which existed or the alternative danger to be averted. In DPP v Harris[66] a police officer, charged with driving without due care and attention through a red traffic light contrary to s 3 of the Road Traffic Act 1988, and having collided with another vehicle containing armed robbers whilst pursuing that vehicle, was not allowed to advance the defence of necessity. Again in Chicon v DPP [1994] the defence of necessity was not allowed in a case of a pit bull terrier dog being kept in a public place without a muzzle - the owner had removed the muzzle to allow the dog to drink. But in the case of In re F (Mental Patient (Sterilization)[67], the defence of necessity was allowed, and also, before the enactment of the 2006 Mental Health Act, in the case of R v Bournewood Community and Mental Health NHS Trust[68], the defence of necessity was recognised and applied by the House of Lords to justify the informal detention and treatment of a mentally incompetent person who had become a danger to himself.

But more recently, duress of circumstance[69] and necessity have been recognised and used by courts. In a leading case, Re A (Conjoined Twins),[70] conjoined twins were born, one reliant on the other for her heart and lungs. Unless they were separated, both would die, but if separated, the reliant twin would die, the doctors therefore being liable to prosecution for murder. It was, however, held that in this special and incredibly sensitive situation, that the separation was necessary to save the first twin's life.

Marital coercion

Provocation

Provocation is a partial defence which reduces murder to manslaughter. A common law defence, it was amended by the Homicide Act 1957.

International criminal law

in The Hague]]

Public international law deals extensively and increasingly with criminal conduct, that is heinous and ghastly enough to affect entire societies and regions. The formative source of modern international criminal law was the Nuremberg trials following the Second World War in which the leaders of Nazism were prosecuted for their part in genocide and atrocities across Europe. In 1998 an International criminal court was established in the Hague under what is known as the Rome Statute. This is specifically to try heads and members of governments who have taken part in crimes against humanity. Not all countries have agreed to take part, including Yemen, Libya, Iraq and the United States.

Criminal law procedure

See also

Notes

  1. see, Pennington, Kenneth (1993) The Prince and the Law, 1200–1600: Sovereignty and Rights in the Western Legal Tradition, University of California Press
  2. R v Pittwood (1902) 19 TLR 37 - a railway worker who omitted to shut the crossing gates, convicted of manslaughter when someone was run over by a train
  3. e.g. the partner in Gibbons who was not a blood parent, but had assumed a duty of care
  4. R v Stone and Dobinson [1977] QB 354, where an ill tended sister named Fanny couldn't leave bed, was not cared for at all and literally rotted in her own filth. This is gross negligence manslaughter.
  5. R v Dytham [1979] QB 722, where a police man on duty just stood and watched three men kick another to death
  6. R v Instan (1893) 1 QB 450, where a bedridden aunt, ostensibly in her niece's care developed gangrene, a "slur on justice" were it not punishable.
  7. R v Miller [1983] 1 All ER 978
  8. see also, R v Santana-Bermudez (2003) where a thug with a needle failed to tell a policewoman searching his pockets that he had one
  9. Airedale NHS Trust v Bland [1993] 1 All ER 821
  10. e.g R v Pagett [1983] Crim LR 393, where 'but for' the defendant using his pregnant girlfriend for a human shield from police fire, she would not have died. Note, Pagget's conduct foreseeably procured the heavy police response.
  11. R v Kimsey [1996] Crim LR 35, where 2 girls were racing their cars dangerously and crashed. One died, but the other was found slightly at fault for her death and convicted.
  12. e.g. R v Blaue [1975] where a Jehovah's witness (who refuse blood transfusions on religious grounds) was stabbed and without accepting life saving treatment died.
  13. e.g. R v Williams [1992] where a hitchhiker who jumped from a car and died, apparently because the driver tried to steal his wallet, was a "daft" intervening act. cf R v Roberts [1971] Crim LR 27, where a girl jumped from a speeding car to avoid sexual advances and was injured and R v Majoram [2000] Crim LR 372 where thugs kicked in the victims door scared him to jumping from the window. These actions were foreseeable, creating liability for injuries.
  14. per Beldam LJ, R v Cheshire [1991] 3 All ER 670; see also, R v Jordan [1956] 40 Cr App R 152, where a stab victim recovering well in hospital was given an antibiotic. The victim was allergic, but he was given it the next day too, and died. The hospital's actions intervened and absolved the defendant.
  15. R v Smith [1959] 2 QB 35, the stab was still an "operating" and "substantial" cause of death.
  16. R v Dear [1996] Crim LR 595
  17. R v Mohan [1975] 2 All ER 193, intention defined as "a decision to bring about... [the actus reus] no matter whether the accused desired that consequence of his act or not."
  18. R v Woolin [1998 4 All ER 103]
  19. overturning R v Nedrick [1986] 1 W.L.R. 1025, whose guidelines for the jury were to be certain "[1] that death or serious bodily harm was a virtual certainty (barring some unforeseen intervention) as a result of the defendant's actions and [2] that the defendant appreciated that such was the case." Here the defendant poured paraffin through the letter box owned by a woman he didn't like and lit it. A child died in the fire. He was convicted of manslaughter.
  20. R v Matthews and Alleyne [2003] EWCA Crim 192
  21. cf R v Cunningham [1957] 2 All ER 863, where the defendant did not realise, and was not liable; also R v G and Another [2003 UKHL 50]
  22. previously in the U.K. under Metropolitan Police Commissioner v Caldwell [1981] 1 All ER 961
  23. R v Latimer (1886) 17 QBD 359; though for an entirely different offence, e.g. breaking a window, one cannot transfer malice, see R v Pembliton (1874) LR 2 CCR 119
  24. R v Church [1966] 1 QB 59
  25. see also, Fagan v Metropolitan Police Commissioner [1968] 3 All ER 442, where angry Mr Fagan wouldn't take his car off a policeman's foot
  26. see, e.g., Theft Act 1968
  27. M'Naghten's case (1843) 10 C & F 200
  28. R v Clarke [1972] 1 All ER 219, caused by diabetes and depression, but the lady pleaded guilty because she did not want to defend herself as insane. Her conviction was later quashed.
  29. R v Sullivan [1984] AC 156
  30. R v Kemp [1957] 1 QB 399
  31. R v Hennessy [1989] 2 All ER 9; though see R v Quick [1973] and the automatism defence.
  32. R v Burgess [1991] 2 All ER 769
  33. R v Windle [1952 2 QB 826
  34. Mr Windle was not hanged!
  35. e.g. in the U.K. Criminal Procedure (Insanity and Unfitness to Plead) Act 1991, giving the judge discretion to impose hospitalisation, guardianship, supervision and treatment or discharge.
  36. though Scottish judges recognised the defence in the 1920s
  37. s.2(1) Homicide Act 1957
  38. Bratty v Attorney-General for Northern Ireland [1963] AC 386
  39. R v T [1990] Crim LR 256
  40. see Kay v Butterworth (1945) 61 TLR 452
  41. Attorney-General's Reference (No. 2 of 1992) [1993] 4 All ER 683
  42. R v Bailey [1983] 2 All ER 503, a diabetic who did not eat enough after taking his dose of insulin hit someone with an iron bar. He was still convicted because automatism did not exist on the facts.
  43. R v Hardie [1984] 1 WLR 64
  44. per Lord Birkenhead, DPP v Beard [1920] AC 479
  45. DPP v Majewski 1977 AC 433, where M was drunk and drugged and attacked people in a pub. He had no defence to assault occasioning actual bodily harm.
  46. R v Gallagher [1963] AC 349
  47. R v Kingston [1994] 3 All ER 353
  48. R v Lipman [1970] 1 QB 152
  49. see R v Hatton [2005] All ER (D) 230
  50. DPP v Morgan and others [1976] AC 182, where an RAF man told three officers to have sex with his wife, and she would pretend to refuse just to be stimulating. They pleaded mistake, and the jury did not believe them.
  51. R v Williams [1987] 3 All ER 411
  52. R v Clegg [1995] 1 All ER 334
  53. R v Martin [2002]
  54. cf DPP for Northern Ireland v Lynch [1975] 1 All ER 913, the old English rule whereby duress was available for a secondary party to murder; see now R v Howe [1987] 1 AC 417, where the defendant helped torture, sexually abuse and strangling. Being threatened into helping was no defence.
  55. R v Howe [1987] 1 AC 817
  56. n.b. this may differ to the state of mind in the case of mistake, where the only requirement is that one honestly believes something. Here it may need to be a "reasonable belief", see also R v Hasan (formerly Z) [2005 UKHL 22]
  57. R v Graham [1982], where duress was rejected
  58. R v Bowen [1996]
  59. R v Gill [1963], where someone told to steal a lorry could have raised the alarm; see also R v Hudson and Taylor [1971] where two teenage girls were scared into perjuring, and not convicted because their age was relevant and police protection not always seen to be safe.
  60. R v Cole [1994]
  61. R v Sharp [1987]
  62. R v Shepherd [1987]
  63. per Lord Woolf, R v Shayler [2002] 2 All ER 477
  64. R v Dudley and Stephens [1884] 14 QBD 273 DC
  65. Woods v Richards [1977]
  66. DPP v Harris [1995]
  67. In re F (Mental Patient (Sterilization) [1990]
  68. R v Bournewood Community and Mental Health NHS Trust [1998]
  69. eg R v Cairns [1999] EWCA Crim 468 where a perceived threat of men running at car (when they wanted to help) was held acceptable as duress of circumstance, when one man was run over.
  70. Re A (Conjoined Twins) [2000] 4 All ER 961

References

  • Farmer, Lindsay (2000). "Reconstructing the English Codification Debate: The Criminal Law Commissioners, 1833-45". Law and History Review 18(2). http://www.historycooperative.org/journals/lhr/18.2/farmer.html. 
  • Fletcher, George P. (1998). Basic Concepts of Criminal Law. Oxford University Press. 
  • Fletcher, George P. (2000). Rethinking Criminal Law. Oxford University Press. 
  • Gorr, Michael J., Sterling Harwood, eds. (1992). Controversies in Criminal Law. Westview Press. 
  • Gross, Hyman (2005, reissue). A Theory of Criminal Justice. Oxford University Press. 
  • Hall, Jerome (1960). General Principles of Criminal Law. Lexis Law Pub. ISBN 0-672-80035-7. 
  • Hart, H.L.A. (1968). Punishment and Responsibility. Oxford University Press. 
  • Smith, K. J. M. (1998). Lawyers, Legislators and Theorists: Developments in English Criminal Jurisprudence, 1800-1957. Clarendon Press. 
  • van den Haag, Ernest (1978). Punishing Criminals: Concerning a Very Old and Painful Question. Basic Books. 
  • Ormerod, David (2005). Smith and Hogan: Criminal Law. Oxford University Press. 

External links

  • Wikicrimeline an excellent English legal resource with links to relevant cases and materials in Wiki format.

Wikibooks

Up to date as of January 23, 2010

From Wikibooks, the open-content textbooks collection

Contents

Introduction

This book was started for use by anyone wishing to gain background knowledge of criminal law or indeed anyone who is studying criminal law. It is aimed at an A-Level audience, who have prior knowledge of the legal system, to provide a light read along with some of the more precise & heavy books available.

This book uses several conventions which are assumed to be known to the intended audience of this book.

What constitutes a Crime

The layman's answer would be something along the lines of actions that are in opposition to the laws (statutes) that govern the country. Law students who begin their studies in Criminal Law will grow to realise that a "crime" constitutes many facets which go beyond the "bad act" itself (the actus reus). In looking at whether a person is a "criminal", one has to look at the mental state the person had while committing the crime(his "mens rea"). It would be worthwhile to remember that every person charged with a crime is presumed innocent until proven guilty.

Basic Principles of Criminal Law

Procedural Issues

Criminal law is based on the theory that the defendant is innocent until proven guilty. In the England and Wales it is the job of the Crown Prosecution Service (CPS) to prove the guilt of the accused in most cases. It is the job of the defendant's solicitor or barrister to prepare and submit a defence. This is done in court by testing the strength of the evidence against the defendant using methods such as discrediting witnesses or challenging the legality of evidence e.g. a stop and search carried out by a police constable was not lawful according to the rules under section 2 of the Police and Criminal Evidence Act 1984. The court must be satisfied that the defendant is guilty beyond reasonable doubt before a conviction can be achieved. All of these elements are derived from the Rule of Law which exists to protect personal liberty, an idea originally conceived by Dicey.

It is obvious to see that in theory, if not entirely in practice, it is hard for the accused to be convicted of a crime; more importantly a crime that the accused did not himself commit. This may seem weighted too far on the side of the accused. However, it is answered by a basic principle of English criminal law: "it is better to release five criminals than it is to convict one innocent".

Actus Reus & Mens Rea

Introduction

In order to establish whether a criminal offence has been committed, we must first establish what the components (often known as "elements") of that offence are. As an example, Theft is defined in s. 1 Theft Act 1968: A man shall be guilty of theft if he dishonestly appropriates property belonging to another, with the intention to permanently deprive the other of it, and thief and steal shall be construed accordingly." We can distinguish five elements to this offence: (1) dishonesty, (2) appropriation, (3) property, (4) belonging to another, and (5) intention to permanently deprive. All five of these elements must be present at the same time (see below) for the offence to be committed.

Every element of an offence falls into one of two categories: actus reus (latin for "guilty act") and mens rea (latin for "guilty mind"). Most criminal offences contain both actus reus and mens rea elements. These are known as crimes with fault liability. Other offences, known as strict liability, require no guilty mind, or mens rea element. In these cases, the crime is committed simply by commission of the act. An example of a strict liability offence would be driving without valid insurance.

A crime can only be committed where both actus reus and mens rea occur at the same time. In some circumstances, this rule has been widely interpreted to include offences which the law is clearly intended to protect against. Thus in Fagan v. Metropolitan Police Commissioner, when the defendant parked his car on the foot of a traffic policeman by accident, he could not be found guilty of a crime, since he did not have the requisite mens rea at the same time as the actus reus. However, the court interpreted his failure to move the car as a 'continuing' act, which coincided with his knowledge and therefore intention to harm the policeman. Fagan was thus guilty of a crime.

Actus Reus

Actus reus refers to the physical parts of the crime (the guilty act) We can categorize the actus reus elements of a crime into three types: conduct, there is an appropriation of property belonging to An example of a crime which does equire of theft stated in the introduction. The actus reus elements of theft are "appropriation" "property" aa d "belonging to anoandther" . As you can see, there is no requirement of a consequence actually managed to get away with th- so it conseAsconsequences, circumstances. e property - theft is committed ifr an example, ndoesn't matter whether, for example, the accused another together with the required mens rea elements.consider the definition quence is murder - murder is not committed unless the accused's conduct results in a death.

Causation

For any defendant to be convicted of any crime, causation must be proved. In practice, this is rarely demonstrated since most causation is obvious and uncontested. If A punches B in the face, there is no necessity for a legal argument to prove that the actual bodily harm suffered by B was caused by A. However, in some cases, it may be questioned whether the acts of the accused did cause the result.

When considering causation, there are five tests to determine whether causation can be established. Two of these are the tests of factual causation (Did the conduct actually cause the result) and the other three are tests of legal causation (Is the defendant to be held legally responsible for the consequences).

Factual Causation
  • The 'But-For' Test

The first test of factual causation poses the question "But for the actions of the defendant, would the result have occurred?". Paraphrasing, the court is generally trying to discover whether the consequence would have resulted regardless of the accused's actions. If the answer to this question is no, and the result could only have occurred due to the actions of the defendant, factual causation is one step towards established. If the answer is yes, and the result would have occurred anyway, then factual causation is not established.

A case demonstrating this is R v. White, 1910. The defendant in this case, laced his mother's drink of milk with poison, however she did not drink it,but died later anyway. It was later revealed that she died due to a heart attack. Since his mother would have died regardless of the fact that he poisoned her drink, White was acquitted of murder. Factual causation had not been established.

  • The 'De-Minimus' Principle

The second test for factual causation is the requirement that the defendant's actions must be more than a minimal cause of the result. An example could be that A pushes B into a main road. C is driving towards B at great speed and B jumps to the kerb and slips, spraining his ankle. A cannot fairly be held liable for the spraining of B's ankle. Though his actions were a direct cause of the result, they were no more than a minimal result.

A case where the De-Minimus case was used to establish factual causation is R v. Pagett, 1983. Pagett kidnapped a girl, Gail Kinchen, and following a protracted negotiation, attempted to escape from armed police using his hostage as a human shield. He fired upon the armed response units, who returned fire and killed Gail Kinchen by accident. He was found to have factually caused Gail's death, as his actions of firing on the police were more than a minimal cause of her death.

NB- R v. Pagett, 1983, is also a case used to demonstrate the 'But For' Test

Legal Causation

The three tests for establishing legal causation are the 'Thin Skull' test, Operative and Significant Cause, and Novus Actus Interveniens.

  • The 'Thin-Skull' test

Less a test, and closer to a principle, the 'thin skull' test merely applies the doctrine that a defendant must "take his victim as he finds". The test is called the 'thin skull' test because of the standard example quoted, though it is not known whether the phrase is coined from an actual case.

Where a victim, A, suffers from a condition which renders him more susceptible to injury than a non-suffering counterpart, B, he should not suffer unequal protection from the law.

Where a victim has a 'thin skull' or other condition or circumstance, it may be the case that he suffers an injury that a person not affected by such a condition would not suffer. Were a defendant to strike someone around the head, for example, a victim with a thin skull may suffer brain damage while the average person might suffer no injury at all. The thin-skull test seeks to attach liability to those defendants who, in terms of public policy, should not escape liability based on the individual's characteristics.

In Regina vs. Blaue, 1975, the defendant was found guilty of murder when the victim, a Jehovah's witness, refused a blood transfusion which would have saved her life. Though evidence showed that the wounds would not have otherwise proved fatal, Blaue was convicted on the grounds that he had legally caused the victim's death.

  • Operative and Significant Cause
  • Novus Actus Interveniens
Is causation a purely matter of law?

As outlined above causation in criminal law is understood as a chain of events linked to each other - it is a link between the defendant’s act and the consequence which occurred as a result of that act. As causation represents an integral element of result crimes - the one to be proved, the law developed certain tests to establish it. They represent a two-stage process or two tests to be applied in succession. The first test is factual causation and the second one is legal causation.

Thus, it is seen from the outset that causation is effectively a mixture being a question of fact and a question of law at the same time or, in other words, causation is a factual issue to begin the analysis and a legal one to finalise the findings. At the same time, it is arguable that legal causation itself is a facade of a chosen approach to allocating blame. Indeed, it is submitted that criminal law itself is a mechanism for allocating blame. In turn, allocation of blame is a process which is almost inevitably based on moral and policy considerations.

Causation in English law: A matter of law, of fact or morals (a way of allocating blame)?

Liability for Omissions

Generally, the law of England imposes no criminal liability for omissions - there is no general duty to act. If, for example, a person walking along the beach one day sees a drowning child in the water, he is under no legal duty to intervene, even if it would be easy for him to do so.

There are a number of exceptions to this rule, however. The first of these are that there is a recognisable duty to act imposed by law where there exists a special relationship between the parties, such as a parent's duty to care for his/her child. A duty can arise through contractual relationships (R v. Pittwood, 1902), or can also arise through one's own conduct. For example, in R v. Miller, 1982, the defendant was held liable for the criminal damage to a building caused by fire. Miller, a vagrant, fell asleep in a disused property and dropped a lit cigarette onto a mattress. When he awoke to find the mattress smouldering, he simply moved to another room. Legally, he was bound to act since the dangerous circumstance was of his own creation, and his omission was therefore criminal. Criminal liability for omissions, has in the past, been held to include doctors who have not acted after taking the Hippocratic Oath.

Mens Rea

The mens rea of a crime is made up of those elements which relate to the state of mind of the accused. In our example of theft, the mens rea elements are "dishonesty" and "intention to permanently deprive". Mens rea elements are often harder to spot in legislation as the words are adjectives, generally non-standard and emotive. Examples might include "dishonest", "intentionally", "fraudulently", or "knowingly". The three types of accepted mens rea elements are intention, recklessness or negligence.

Intention

Criminal intention can be further broken into two groups, direct and oblique. A direct intention is the willful desire to commit an act. It must be understood that the intention sufficient to amount to mens rea is only the intention to perform the required criminal act, not an intention for the result to occur. Assault occasioning actual bodily harm (Section 47 of the Offences Against The Person Act 1861) is a good example here. The requisite mens rea is intention to cause assault. If A intentionally assaults B and harm results, he is guilty of the offence. The fact that he does not intend harm is irrelevant. He intended to do the act, and harm is simply a by-product.

Oblique intention, also known as indirect intention, refers to a knowledge or belief that a consequence is a virtual certainty, and acting with this in mind, although the result may not be intended. To explain further: A intends to punch B, but they are separated by a pane of glass. His intention to punch B is direct as he desires to perform this act. Breaking the glass in pursuance of his goal amounts to the actus reus of criminal damage, but A does not desire for this to take place. Since punching B will inevitably result in breaking the glass, it is a virtual certainty. therefore, in punching B, A had oblique intention for criminal damage - He appreciates that it will happen, and although does not desire it, continues to act regardless.

Recklessness

Intention will be more clear from an example, suppose that a man have many desires some of them to be too visionary, some he lack the energy to implement. But if he decide to achieve his desire and begin to start to act to that end, the desire becomes the intention with which he act.

Negligence
Transferred Malice

The doctrine of 'transferred malice' operates when there is an unexpected divergence between the defendant's mental state and the occurrence of the actus reus. The mens rea is regarded as transferred when this divergence is immaterial to the definition of the offence. Thus, if D fires a gun intending to kill T but misses and kills V instead, the fact that V's death was unintended does not preclude D's liability for murder. It is sufficient that D intended to kill a person — the identity of that person is irrelevant to the offence definition. Compare this with the situation where D's bullet, instead of hitting T, breaks a window of the nearby house. Here the intention to kill a person cannot be 'transferred' to make D guilty of criminal damage — an offence with a different mens rea requirement.

Strict Liability

Sometimes the legislature departs from the maxim actus non facit reum nisi mens sit rea by creating offences of strict liability. The liability is said to be ‘strict’ when there is no mens rea requirement in relation to one or more elements of the actus reus. For example, under the Sexual Offences Act 2003 the offences involving children under 13 do not require any mens rea on the part of the defendant as to the age of the child (R v. G [2006] 2 Cr App R 17). Here the prosecution needs only to prove that the defendant intentionally committed the relevant acts and that the victim was under 13; his genuine or otherwise reasonable belief that the child was older is irrelevant.

In English law most strict liability offences are statutory, with few common law exceptions such as contempt of the court and criminal libel.

Complicity

The Criminal Liability of Corporations

Corporate criminal liability occurs either through direct liability or vicarious liability.Direct liabilty needs a directing mind and will. Direct liability tends to focus on more srious offences requiring the establishment of mens rea, including secondary offences of aiding and abetting, counselling and procuring. Vicarious liability occurs on the basis of 'respondeat superior' or 'let the master answer'.

The recent statute enacted on July 26, 2007 , Corporate Manslaughter and Corporate Homicide Act v2007, is the criminalisation of corporate liability, especially with regard to health and safety offences.An organisation will be guilty of an offence if the way in which its activities are managed or organised causes a person's death, and amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased.


The new Act brings in tough penalties for companies causing deaths of workers by negligent management in industry, or fatalities and injuries to passengers in public transport. Deaths in prison and police cells is part of the new corporate manslaughter measures and organisations such as the Police Authority are classed as corporations.

Before the Corporate Manslaughter and Corporate Homicide Act 2007, there have been cases in the UK courts in which the issue of criminal liability of companies were decided upon. One such case is as follows:


Tesco Supermarkets Ltd v Nattrass (1972) HL


The appellant company was charged with an offence under the trade descriptions legislation of displaying inaccurate price information in one of its stores. The company was convicted and fined but appealed on the basis that the company had not committed the offence - it had in place a management and supervisory system designed to prevent this type of offence and the failure that resulted in the offence being committed was the failure of the store supervisor, which should not be attributed to the company. Held The appeal succeeded. Because the store supervisory manager could not be said to be part of the ‘directing mind and will’ of the company his acts could not be said to be those of the company. The House of Lords stressed the fictional nature of the corporate legal person and the need to distinguish between: acts which were actually those of the company; and acts which were those of an agent or servant of the company but for which the company has some statutory or vicarious liability. The former category are usually those acts committed by the board of directors or senior management of a company who speak and act for it. They are its ‘brain’ or its ‘nerve centre’.

Inchoate Offences

Specific Offences

Homicide

Murder

The crime of murder is committed where a person of sound mind and discretion unlawfully kills any reasonable creature in being, and under the queens peace, with intent unlawfully to kill or cause grevious bodily harm.

Voluntary Manslaughter

There are three kinds of voluntary manslaughter. They are provocation, diminished responsibility and suicide pacts. Voluntary manslaughter is essentially a defence to murder. A person cannot be charged with voluntary manslaughter, they have to be charged with murder and then raise one of these defences, which reduces the crime to manslaughter. In the case of provocation, the requirement is that the person was provoked by words or conduct, and that the provocation would have provoked a reasonable person to do the same. The requirement for diminished responsibility is that the defendant was operating under such abnormality of mind as substantially impaired his mental responsibility for his acts and omissions in committing or being party to a killing. The defence that the killing was a suicide pact requires that the defendant was a party to a suicide pact, and that they killed the victim in pursuance to that suicide pact. A suicide pact is an agreement between two or more people, having for its object the death of them all, whether or not each is to take his own life. Nothing may be treated as being done in pursuance of a suicide pact, unless when done the person doing the act has the settled intention of dying in pursuance of the pact. Xxx

Involuntary Manslaughter

In common law the term ‘involuntary manslaughter’ refers to those instances where the defendant causes death intending neither to kill nor to cause grievous bodily harm. There are currently three types of involuntary manslaughter - manslaughter by gross negligence, constructive manslaughter and killing with subjective recklessness

  1. Constructive manslaughter

The defendant must have committed an illegal act that resulted in the death of the victim

    1. Gross Negligence Manslaughter

Must owe a duty of care to the victim.

Non-Fatal Offences Against the Person

Assault- causing the victim to apprehend immediate unlawful force R v Ireland and Barstow (Section 39 of the criminal justice act '88)

Battery- the application of unlawful force, which can be any touching the victim does not consent to- R v Thomas (Section 39 of the criminal justice act '88)

Assault occasioning Actual Bodily Harm- any assault or battery which amounts to ABH. This can be psychriatric and physical. Physical ABH must be more than trivial damage, and psychriatric ABH must be more than mere fear and distress, and was defining in the case Chan Fook as 'any injury not so trivial as to be wholly insignificant'. (Section 47 of the Offences Against a Persons Act 1861)

Malicious wounding or causing grevious bodily harm (Section 20 of the Offences Against a Persons Act 1861)

Malicious wounding or inflicting grevious bodily harm with intent (Section 18 of the Offences Against a Persons Act 1861)

Theft and Related Property Offences

Defences

Mistake

Intoxication

Voluntary Intoxication is generally not a defense to the commission of crime.

Involuntary Intoxication, on the other hand, is an affirmative defense on which a defendant bears the burden of proof. The defendant's burden of proof typically by a preponderance of the evidence, less than the prosecutions burden to prove him guilty beyond a reasonable doubt.

Infancy and Mental Disorder Defences

Duress

Duress must be to ones property, family or ones self.

Self-defence and Necessity

Bibliography

Ashworth, A., Principles of Criminal Law (Oxford: Oxford University Press, 5th ed., 2006).

Lacey, N., Wells, C. and Quick, O., Reconstructing Criminal Law (London: Butterworths, 3rd ed., 2003).

Simester, A.P. and Sullivan, G.R., Criminal Law: Theory and Doctrine (Oxford: Hart Publishing, 2nd ed., 2003).

Smith, J.C. and Hogan, B., Criminal Law (Oxford: Oxford University Press, 11th ed., 2005).

Williams, G., Criminal Law: The General Part (London: Stevens, 2nd ed, 1961).

Williams, G., Textbook of Criminal Law (London: Stevens, 2nd ed. 1983).

Online resources

  • Judicial Studies Board - resources intended to provide guidance, induction and continuation training to the judiciary.
  • Law Commission - access to Law Commission Reports and Consultation Papers, as well as information about Law Commission projects in progress.







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