CRIMINAL LAW

ELEMENTS OF A CRIME

- To be found guilty, usually Actus reus + Mens rea required

- Exception: strict liability offences
- Prosecution must prove both Mens rea and actus reus, or person will be acquitted
>> Woolmington v DPP (1935): presumption of innocence first articulated in the
Commonwealth

ACTUS REUS

= guilty act

Voluntary act requirement

= conduct performed consciously

- you cannot usually commit a crime without doing an act

- A person is not guilty unless his criminal liability is based upon conduct that
includes a voluntary act
- Where the conduct is involuntary, D is deemed to be an automaton, and will have
the defence of automatism available to him
 Bratty v AG for Northern Ireland (Lord Denning): “Automatism = An act which is
done by the muscles without any control by the mind, such as a spasm … or an
act done by a person who is not conscious of what he is doing, such as an act
done whilst suffering from concussion”

OMISSIONS

= generally, a person will not be liable for simply failing to act

- When D is under a Duty of Care = Failure to do so leads to criminal liability

 Statutory duty: providing details of insurance/notifying DVLA when you sell a vehicle
 Duties of law enforcement: Police officers have a duty to assist members of public in
danger: R v Dytham
 Contractual duty: R v Pittwood
CRIMINAL LAW

 Assumed duties: People who voluntarily assume responsibility for another’s welfare will
be under a duty to care for him or her R v Instan, R v Stone & Dobinson and R v Gibbons
and Proctor
 Continuing act: Fagan v Met Police Commissioner
 Duty to avert danger created (supervening fault): under a duty to take reasonable steps
to avert that danger: R v Stone & Dobinson and R v Miller
 Novel situations: courts may be willing to create new circumstances under which there is
a duty to act

Duty to Act

- If there is a duty to act, the D must do what is reasonable (what is reasonable

determined by the judge)
- Even where it may be unreasonable to act, it may be reasonable to seek help
- Must be shown that the omission caused the harm: R v Dalloway (1847)

Omission v Act

- R v Speck [1977]: distinction between the 2 can be hard

- Leading case to determine the difference between an act and an omission =
Airedale NHS Trust v Bland [1993]

Situational Offences

= A person can be guilty if he/she is found to be in a particular situation

- Situational offences usually involve a voluntary act

 Drink driving
 Possession of drugs

Liability for the acts of other people

= Someone could be held criminally liable for someone else’s acts

- Vicarious liability = an employer may be criminally responsible for the acts of their
employees
CRIMINAL LAW

CAUSATION

= enquiry as to whether D’s conduct (or omission) caused the harm or damage

- R v Kennedy: it is usually “common sense” to establish causation

Factual Causation: ‘But For’ Test

= ‘but for the actions of the defendant, would the result/consequences have occurred?’

- There must be a factual link between D and the harm caused

- R v Dyson: D could be said to have caused V’s death
- R v White: D could not be said to have been the factual cause of V’s death

Establishing factual causation is not enough, we must also establish legal causation

Legal causation

= causation in fact does not always mean there will be causation in law

- Causation in law can be established by showing that D’s act was an ‘operating and
substantial’ cause of the consequence and that there was no intervening event

Substantial cause = D’s acts mjst be a significanr factor in the final consequence/result

- D’s acts must be more than an “insubstantial or insignificant contribution”

Operating cause = D’s acts need not be the sole or even the main factor in the final
consequence/result: R v Benge

Novus Actus Interveniens

= an act or event that breaks the casual connection between a wrong or crime committed by
D and the final consequence/result

- If valid novus actus interveniens demonstrated then D will not be criminally liable
CRIMINAL LAW

R v Kennedy = X’s act will be a novus actus interveniens when:

1. A free, voluntary, and informed act; and

2. It renders the D’s act no longer a substantial and operating cause

X’s acts will not be free, voluntary, or informed if there is a justification behind the act.

<< Third party omissions cannot break the chain of causation >>

Victim’s acts breaking the chain of causation

= an act of V will not break the chain of causation unless V’s actions were unreasonable and
disproportionate in the circumstances: R v Blaue

The ‘Thin Skull’ Rule

= D must take his V as he finds him

- R v Hayward: Even if injury or death is not reasonably foreseeable the law still
considers D liable if V suffered from some physical or mental condition that made
him/her vulnerable

Act of God

= it is possible that the chain of causation might be broken by a completely external

occurrence or factor which is really a coincidence

MENS REA

= mental element of the crime

- actus reus non facit reum nisi mens sit rea = “the act is not culpable unless the
mind is guilty”
- general rule: someone who acted without mental fault is not liable in criminal law

INTENTION

= requires the highest degree of fault

- intention should be given its ordinary meaning

CRIMINAL LAW

= it is widely accepted that D intends a consequence of his action if he acts with the
aim or purpose of producing that consequence
= the jury must be persuaded beyond reasonable doubt that D intended the result
- R v Hales [2005]: CoA = only in rare cases will the judge need to give further
directions to the jury on intention

INTENTION v FORESIGHT

- Foresight of a consequence is not the same as intention

- Foresight of a consequence may be used as evidence of intention
- Hancock v Shankland [1986] (Lord Scarman): “the greater the probability of a
consequence was foreseen and … if that consequence was foreseen the greater
the probability is that the consequence was also intended”

BORDERLINE CASES OF INTENTION

- in rare cases, the jury will require further direction to decide whether D intended
his/her actions
- R v Woolin

RECKLESSNESS

= the taking of an unjustified risk

- Cunningham recklessness

Caldwell recklessness

- Caldwell recklessness abolished

- In Caldwell, recklessness proved objectively
- In Caldwell recklessness, if there was an obvious risk of harm resulting from D’s
actions, regardless of whether D had foreseen the harm, he/she would be acting
recklessly
- Included D’s who were not aware of a obvious risk
- Caldwell recklessness fell into disrepute because it punished D’s for failing to notice
a risk which would have been obvious to a reasonable person: Elliott v C

Cunningham recklessness

1. D was aware there was a risk that his/her conduct would cause a particular result
CRIMINAL LAW

 Requires that the accused foresaw that there was a risk

 Does not have to be foreseen as highly likely to occur
 Q = whether the accused foresaw that there was a risk; not whether the risk was
obvious or would have been foreseen by a reasonable person: R v Stephenson
2. The risk was an unreasonable one for D to take
 Unlikely for there to exist a situation where it would be reasonable for D to take a
risk that a person will be injured
- Cunningham recklessness (subjective recklessness) will arise if the accused
consciously takes an unjustified risk

R v G and R [2006]

- Until this case, subjective and objective recklessness operated side by side
 2 boys set fire to newspapers and placed them under a bin
 Assumed they would naturally burn out
 Bin set on fire, shop set on fire = causing over £1m damage
 Originally convicted of criminal damage on the basis that it would have been
obvious to a reasonable person that they what they were doing was posing a risk
to property
= convictions quashed by HoL
= R v Caldwell overturned
= D will be recklessness if he or she realised that there is a risk of harm arising
and decides to take that risk, when to do so is unreasonable

NEGLIGENCE

- Negligence plays a minor role in criminal liability

- Objective test:
= Did D behave in a way which was reasonable in the circumstances?
= If D behaves in the way in which a reasonable person would not then he/she is
negligent
- Objective test strictly applied: McCrone v Riding [1938]
CRIMINAL LAW

GROSS NEGLIGENCE

= really bad negligence

- Must be shown that D killed negligently and that this negligence was so bad as to
justify a criminal conviction: R v Adomako [1994]

INTOXICATION

1. D may for some crimes seek to rely on his toxication as evidence he lacked Mens rea
2. The prosecution may in some crimes seek to rely on D’s intoxication to establish D’s
Mens rea
3. There are certain crimes that specifically refer to being intoxicated

Voluntary and involuntary intoxication

Voluntary = self-induced intoxication

Involuntary = caused by someone or something else

Alcohol and illegal drugs

 Where someone voluntarily takes alcohol or illegal drugs: R v Allen [1998]

 If D thought he was drinking a non-alcoholic drink but it had been spiked =
involuntary intoxication
 Where someone is addicted to drugs/alcohol = voluntary intoxication

Legal substances

 D is aware of the effects of taking the legal substances = voluntary intoxication

 D does not take prescribed medicine the way it should be taken = voluntary
intoxication

Basic and specific intent

- Where D has voluntarily put themselves in the position of being intoxicated to the
extent that they are not capable of forming the mental element of the crime the
law is less forgiving
CRIMINAL LAW

- DPP v Majewski [1977]: highlighted that there was no distinction to be made

between basic and specific intent. HoL failed to clarify the exact meanings
- Believed to mean:
 Specific intent = offences of specific intent are those which have intention as their
mens rea (eg – murder)
 Basic intent = crimes of basic intent are those for which the mens rea element can
be satisfied by recklessness (eg – assault)

R v Heard [2007]: Rape = where the mens rea is an intent to engage in sexual intercourse
with negligence as to whether V consented

>> uncertainty surrounds crime which contain elements of intent and recklessness

THE LAW

- If D has mens rea, whether voluntarily or involuntarily intoxicated, D is guilty of the

offence: “a drunken intent is nevertheless still an intent”
- If D is involuntarily intoxicated and has NO mens rea then D should be acquitted
(complete defence)
- If D is voluntarily intoxicated and has NO mens rea then D will be seen to have
acted recklessly (guilty of basic intent crimes), but will be acquitted of any offence
needing intention (specific intent crimes – murder – D in such a case will be
charged with the lesser offence of murder)
= voluntary intoxication = partial defence

KNOWLEDGE AND BELIEF

= for some offences it must be shown that D did an act knowing or believing that a certain
situation existed

 difference between knowledge and belief = whether the facts known or believed
turned out to be true

TRANSFERRED MENS REA (transferred malice)

CRIMINAL LAW

= applies where the mens rea of one offence can be transferred to another: R v Latimer
(1886)

- Transferred malice does operate where the crime which has occurred was different
from that intended: R v Pembliton (1874)

COINCIDENCE OF ACTUS REUS AND MENS REA

Principle in English law that actus reus and mens rea must coincide – they must happen at
the same time (contemporaneity rule)

- Courts often apply a flexible approach in holding that the actus reus is a continuing
act: Thabo-Meli v R [1954]
- Fagan v MPC [1969]: D committed the actus reus of an offence (without mens rea)
but a later point developed a mens rea

STRICT LIABILITY OFFENCES

= offences of strict liability require proof that D performed the prohibited conduct, but do
not require proof that D was blameworthy: Harrow London BC v Shah [2000]

- Nearly half of all criminal offences are strict liability (mostly minor)
- Even where an offence is one of strict liability such as duress or self-defence may
still apply

WHICH OFFENCES ARE STRICT LIABILITY?

= Most strict liability offences are found in statutes

- If parliament has not included a mens rea requirement for a statutory offence the
court has to decide whether to interpret the crime as one of strict liability or to
read in a mens rea requirement
- B (A Minor) v DPP [2000] and R v K [2001]: reinforced the common law that in
interpreting statutory offences there is a presumption against strict liability and in
favour of mens rea
CRIMINAL LAW

- As a result of these decisions the court will read mens rea into a statute unless
either:
 There is a clear wording in the statute indicating that the offence is to be one of
strict liability or;
 There is a ‘compelling clear’ inference that the offence is to be one of strict liability

WHEN WILL A COURT NOT PRESUME MENS REA?

= There are several factors a court will consider in deciding whether there is a ‘compellingly
clear’ inference that the offence is to be one of strict liability:

 If some sections of a particular statute refer to mens rea and other parts do not, the
parts WITHOUT reference to mens rea are more likely to be strict liability
 The court will look at similar offences to determine whether the offence in question
is one of strict liability or not
 The court will consider the social the social context of the offence
 the court will look to see whether the offence is intended to be ‘truly criminal’
 if the offence is not intended to be truly criminal (intended to be a regulatory
offence) the offence is more likely to be one of strict liability

WHAT MENS REA WILL BE PRESUMED?

- If there is no clear evidence that the statute is to be one of strict liability the court
will presume mens rea
- The presumed mens rea will be that the defendant will have a defence if D
believed (even f unreasonably) that an aspect of actus reus did not exist

POSESSION OFFENCES

Several statutory offences involve possession of (drugs, weapons etc.)

- Strictly speaking these are not strict liability offences, but their mens rea
requirement can be minimal and so are very similar to them

THEFT, HANDLING AND ROBBERY

CRIMINAL LAW

THEFT

S1 Theft Act 1968 = “A person is guilty of theft if he dishonestly appropriates property

belonging to another with the intention of permanently depriving the other of it”

Actus Reus = appropriating property belonging to another

1. PROPERTY (S4)

S4(1) = “money and all other property, real or personal, including things in action and other
intangible property”

- Real property = land

- Personal property = property which is not land
- A thing in action = property right that can be claimed in a court action
- Intangible property = patents ad copyrights

 Oxford v Moss (1979): Information is not property so cannot be stolen

2. BELONGING TO ANOTHER (S5)

S5(1) = “Property shall be regarded as belonging to any person having possession or control
over it, or having any proprietary rights or interest”

- R (Ricketts) v Basildon Magistrate’s Court [2010]: Property doesn’t just belong to

the owner but also to anyone with possession or control of property
- R v Kelly [1998]: possession or control does not have to be lawful possession or
control
- R v Turner (No.2) (1971): An owner can be convicted of theft of his own property
(so long as, at the time, the property belonged to another)

S5(2) = “Where property is subject to a trust, the person to whom it belongs shall be
regarded accordingly as an invention to deprive of the property any person having that
right”

- The property shall be regarded as belonging to those entitled to enforce the trust
CRIMINAL LAW

S5(3) = “Where a person receives property from or on account of another, and is under an
obligation to the other to retain and deal with that property or its proceeds in a particular
way, the property or proceeds shall be regarded as belonging to another”

 R v Hall [1973]
 R v Wain [1995]

S5(4) = if a person gets property by mistake it must be returned: AG’s Reference No 1 of

1983 [1985]

3. APPROPRIATION (S3)

S3(1) = “Any assumption by a person of the rights of an owner amount to an appropriation,

and this includes, where he has come by the property (innocently or not) without stealing it,
any later assumption of a right to it by keeping or dealing with it as the owner”

- Case law: appropriation = where D has assumed any rights of the owner
- Appropriation to touch someone else’s property, offer it for sale, or destroy it
 R v Gomez [1993]
 R v Hinks [2001]
4. INTENTION TO PERMANENTLY DEPRIVE (S6)
- Borrowing does not usually amount to theft (even without consent)
- There must be an intention to permanently deprive
- It may be theft even where D only had conditional intention
 if property is taken with the intent to decide at a later stage whether to keep the
property, this conditional intention may be acceptable for a charge of
theft/attempted theft: R v Easom [1971]

S6:

= Where D throws V’s taken items away

= Where D sells the items back to V

= Where D returns property in an improvised state

- S6(1): “equivalent to an outright taking or disposal” = intention to permanently

deprive
CRIMINAL LAW

= If D gambles V’s property or invests it in a risky investment

5. DISHONESTLY (S2)

D will not be dishonest if:

S2(1)(a) = D believed he had a right to deprive the owner of the property

S2(1)(b) = D believed that the owner would consent

S2(1)(c) = D believed that the owner could not be found

Common Law Test for Dishonesty

If D is not acquitted on the basis of s2(1) the jury will go on to consider the common law for
dishonesty: R v Ghosh [1982]

 2 questions in deciding whether or not D was dishonest:

1. Was what D did dishonest according to the standards of reasonable and
honest people?
2. Would D realise that reasonable and honest people would regard what
he/she did as dishonest?
 2nd limb overruled by Supreme Court following Ivey v Genting Casinos
[2017]

ROBBERY

S8 TA 1968

1) It must be shown that D has committed theft

- Mens Rea and Actus Reus must be proved
2) It must be shown that D has used or threatened force at the time of theft
I. There must be the use of force or threat of force (level of force need only be
minimal): R v Dawson [1976]
II. The force must be used in order to steal and not for any other purpose
III. The force must be used at the time of the theft or immediately before it

 it is not robbery if the force is simply used to make a getaway from a scene of a
theft: R v Hale (1976)
CRIMINAL LAW

HANDLING STOLEN GOODS

S22 TA 1968 (expanded in s24(2)) = the offence can be broken down into 4 elements:

1. It must be shown that the goods have already been stolen

2. It must be shown that D handled the property
3. It must be shown that D knew or believed that the goods were stolen
4. D was dishonest

It must be shown that the goods have already been stolen

- It is not necessary for the prosecution to prove who stole the goods, as long as it is
clear the goods have been stolen by someone
- If D believes the goods to be stolen, but in fact they are not, then D may be guilty
of an attempted handling offence

It must be shown that D handled the property

- It must be shown that D engaged in or arranged one of the following:

1. Receiving the property
2. Undertaking any of the following
a) Retention
b) Removal
c) Disposal
d) Realisation
…. Of the goods either by another or for another’s benefit
3. Assisting in any of the following
e) Retention
f) Removal
g) Disposal
h) Realisation
…. Of the goods either by another or for another’s benefit

It must be shown that D knew or believed that the goods were stolen

- Subjective test
CRIMINAL LAW

 It does not matter whether a reasonable person would have known the
goods were stolen
 What matters is if D knew
- The words knowledge and belief are to be given their normal meaning
- Suspicion the goods are stolen is not enough

D was dishonest

- To convict D of handling the jury must be persuaded that D was dishonest

- Ghosh test for dishonesty will be used
- Only first part of Ghost Test needs to be used unless D gives evidence that he or
she thought his or her conduct was honest according to the standards of ordinary
people
- It will be rare that someone who is handling what he or she knows or believes to
be stolen goods will be able to claim successfully that he or she was acting
honestly

HOMICIDE

MURDER

Actus reus = the unlawful killing of another in the Queen’s Peace

- A person: victim of homicide must be a person

 Vo v France (2006): according to law an unborn child cannot be a victim of murder
because they are not yet people
- Unlawfully: if D can rely on self-defence, he/she has not been killed unlawfully = R
v Beckford [1988]:
- Queen’s Peace: it must be shown that the killing took place in the Queen’s peace
- Killed: D must have caused the death of V
 It must be shown that D sped up the death of V by more than negligible amount: R
v Adams [1957]

Mens Rea of Murder = intention to kill or cause GBH

 GBH = really serious harm: DPP v Smith [1961]

CRIMINAL LAW

 A harm can be a GBH even though it would not pose a risk to the life of V: R v Bollom
[2003]
 Only an intention to kill or cause GBH is needed to establish the mens rea of murder:
R v Vickers [1957]

INTRODUCTION TO MANSLAUGHTER

= Less serious form of homicide than murder

 Voluntary manslaughter
- Killings which have the actus reus and mens rea of murder
- D who successfully pleads loss of control, diminished responsibility, or suicide pact
to a charge of murder will be guilty of voluntary manslaughter
 Involuntary manslaughter
- Killings where the mens rea of murder does not exist
- But, there is sufficient fault to justify criminal liability
- Reckless manslaughter, gross negligence manslaughter, constructive (unlawful act)
murder