Beginning Criminal Law
Short Questions and Answers
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Chapter 1
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Explain the sources of the criminal law.
A considerable amount of the criminal law is contained in Acts of Parliament or Statute. Some is still set down by the common law, such as murder and manslaughter. The Human Rights Act has some effect on the criminal law and the draft Criminal Code 1989, whilst not in force, is helpful for reference purposes. -
What elements need to be proved by the prosecution in order to establish criminal liability?
The three elements the prosecution need to prove are the actus reus, the mens rea and the absence of a legally recognised defence. -
On whom does the burden of proof lay and what is the standard of proof?
The onus is on the prosecution to prove the defendant’s guilt beyond reasonable doubt. -
Why does the standard of proof differ in criminal and civil cases?
In civil cases, where the issue is often a question of compensation between parties, it is sufficient that liability is established (by the judge) on a balance of probability (50% +). However, where a defendant faces damage to his reputation, a loss of livelihood or even a custodial sentence, it is important the jury are satisfied so that they are sure of the defendant’s guilt. -
Explain the reasons why society inflicts punishment on wrongdoers.
Where compensation between the parties is not an adequate remedy, the State will seek to punish the wrongdoer. From the outset, the immediate effect of punishment is to protect the public from the offender’s behaviour. Punishment ensures we understand the boundaries of what is and what is not acceptable behaviour and it acts as a deterrent to others to avoid a certain type of behaviour. It is described as a form of retributive justice, where a person has to account for the consequences of their action. However, punishment also aims to rehabilitate the offender so that he or she will learn the error of their ways and avoid repeating the prohibited behaviour in the future.
Chapter 2
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What is meant by the term mens rea?
The term mens rea refers to the ‘guilty mind’. The prosecution must prove the mens rea element of the criminal offence. The mens rea can be found in statute or in common law (in offences such as manslaughter or murder). For example, in theft, the mens rea can be found in s 1 of the Theft Act 1968. This section contains the definition of theft. The mens rea in this offence are ‘dishonest’ and ‘intention’. From this we can see that the prosecution must prove both the accused’s ‘intention’ and the accused’s ‘dishonesty’. -
What is the current and accepted meaning of intention?
The current definition of intention can be found in the case of Nedrick (1986) as amended by Woollin (1999). If the jury are satisfied that death or grievous bodily harm was a virtual certainty of the defendant’s actions and the defendant was aware that it was, the jury are entitled to find intention. The slightly later case of Matthew v Alleyne confirmed that the rule of Nedrick/Woollin is not a substantive rule of law but a rule of evidence. -
What is the legal definition of recklessness?
Recklessness is a lesser form of mens rea, where the defendant takes an unjustified risk. A good example of this is the case of Cunningham (1957). Recklessness is now subjectively tested following the House of Lords judgment in R v G and R (2003). -
Explain the meaning of the term ‘strict liability’ offences.
This refers to offences where mens rea does not need to be proved in at least one aspect of the offence. It is inaccurate to say that the offence does not have a mens rea. The practical meaning of this is that the defendant can be convicted of an offence with no evidence of fault on his behalf. Most strict liability offences are regulatory in nature. -
Does there have to be a ‘coincidence’ of mens rea and actus reus?
There needs to be a coincidence of mens rea and actus reus. This was a practical impossibility in cases such as Fagan v MPC (1969) where the actus reus was committed before the mens rea was conceived. However, the courts have described cases where there are a series of events with no coincidence of the two elements as a ‘continuing act’. Hence the defendant cannot avoid liability for the reason of a lack of coincidence between the actus reus and the mens rea.
Chapter 3
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Define what is meant by the term actus reus.
The actus reus is the physical or conduct part of the criminal offence. It is the actus reus that brings about the prohibited circumstances. -
What are the sources of the actus reus?
We find the definition of the actus reus in either statute or in the common law. -
Why is it vital that the actus reus of an offence must be voluntary? Use case law to illustrate your answer.
The actus reus must be voluntary in order that our actions reflect our own free will. If an action is involuntary there will often be no actus reus and hence no criminal liability but the law in the area has been referred to as a ‘quadmire’ (Quick 1970). There are cases, albeit a limited number where defendants have been convicted even though their actions have been involuntary (see Larsonneur (1933) and Winzar v Chief Constable of Kent (1983). -
What are the three rules of causation? Use case law in your answer.
- Would the result have occurred ‘but for’ the defendant’s conduct? In the case of White the defendant act of attempting to poison his mother, was not the factual case of his mother’s death. See also the case of Pagett (1983).
- Were the defendant’s actions more than a minimal, trivial or slight cause of the result? Kimspey (1996).
- Was there a new intervening act or novus actus interveniens that broke the chain of causation? Use Smith and Cheshire and distinguish them from Jordan in order to answer the question.
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Does negligent medical treatment break the chain of causation in criminal law? Use case law to illustrate your answer.
The courts are reluctant to shift the blame from the defendant to the medical professional, even where there is evidence of medical negligence. In Jordan (1956), medical treatment which was ‘palpably wrong’ broke the chain of causation and so cleared the defendant of any blame. However, Lord Parker CJ held in the case of Smith (1959) that ‘if at the time of death the original wound is still an operating cause and a substantial cause, the death can properly be said to be the result of the wound, albeit that some other cause of death is also operation’. Hence medical treatment will only in the rarest of circumstances break the chain of causation. A similar decision was reached in Cheshire (1991).
Chapter 4
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What is the definition of murder and where can it be found? Identify the mens rea and the actus reus of the offence.
‘Murder is when a man of sound memory, and of the age of discretion, unlawfully killeth within any country of the realm any reasonable creature in rerum natura under the King’s peace, with malice aforethought, either expressly or implied by law (so as the party wounded, or hurt, etc. die of the wound or hurt etc. within a year and a day of the same)’. It is a common law definition by Sir Edward Coke. The mens rea is malice aforethought and the actus reus is the unlawful killing. -
What is the modern day definition of the mens rea of murder? Provide case law in support.
The modern definition of murder is found in the case of Vickers (1957) which defines murder as an intention to kill or cause grievous bodily harm. -
What is unlawful act manslaughter? Outline the elements that must be proved before a person can be convicted of unlawful act manslaughter.
Unlawful act manslaughter is where an unlawful homicide is carried out without malice aforethought. The case Larkin (1943) states the following elements need to be proved.- The act must be intentional.
- The act must be unlawful.
- The act must be dangerous.
- The act must cause death.
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Define the term gross negligence manslaughter. What elements must be proved by the prosecution before a person can be convicted of gross negligence manslaughter?
Gross negligence manslaughter is where a defendant causes the victim’s death following a breach of duty of care. A conviction will arise where the jury determines that the negligence was so ‘gross’ that it should be worthy of criminal punishment.
The following elements must be established:- The defendant must have owed the victim a duty of care.
- The duty of care must have been breached.
- The breach of duty of care must have caused the death.
- The breach of duty of care must be grossly negligent.
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What amounts to an act which is ‘grossly negligent’?
In Adomako, Lord Mackay said that whether something was grossly negligent was a matter for the jury who had to consider ‘whether having regard to the risk of death involved, the conduct was so bad in all the circumstances as to amount in their judgment to a criminal act or omission.’
Chapter 5
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Why are loss of self-control and diminished responsibility referred to as ‘partial’ defences?
If the defendant successfully relies on one of the defences, the defendant will be convicted of manslaughter rather than murder. The relevance of this is in relation to sentencing. Whilst a conviction of murder will result in a mandatory life sentence, a judge has greater flexibility where a conviction of manslaughter is concerned. -
With whom does the burden of proof lay with a) loss of self-control and b) diminished responsibility?
- The evidential burden rests on the prosecution to disprove the defence.
- The evidential burden rests on the defendant to prove the defence on a balance of probabilities.
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What is the relevance of the case of Attorney General v Holley (2005) to the law of provocation?
Holley is a Privy Council case which sought to reconsider and redefine the law of provocation. The case of Smith (Morgan James) (2003) had reduced the reasonable man to one that almost appeared to be entirely subjective. Holley took the law of provocation back to Camplin where only sex and age were relevant to how a reasonable man would have acted. -
If a person is charged with murder and relies on the defence of diminished responsibility, what must the provocation disprove?
Section 52 of the Coroners and Justice Act 2009 defines diminished responsibility as where the defendant has an abnormality of mental functioning which refers to a medical condition and must substantially impair the defendant’s ability to understand the nature of his conduct, form a rational judgment or exercise self-control. The abnormality of mental functioning must cause, or is a significant contributory factor in causing the defendant to carry out the act. It is for the prosecution to disprove these elements. -
Consider case law concerning intoxication and diminished responsibility further to s 52 of the Coroners and Justice Act 2009.
The case of Dowds (Stephen Andrew) (2012) confirmed the law prior to the CJA 2009 that voluntary acute intoxication could not be relied upon in diminished responsibility.
Chapter 6
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What is the difference between a justificatory and an excusatory defence?
A justificatory defence - if successfully pleaded – means that there has been no crime committed, because the defendant was completely justified in her actions, in spite of the outcome. An excusatory defence admits that a crime has taken place , but – if pleaded successfully – allows the defendant to be excused the punishment that would ordinarily follow. -
Danny is out walking one day when he sees a man next to him suddenly throw up his arms and come towards him. Frightened, Danny lashes out at the man and knocks him to the ground. The man turns out to be someone Danny used to know at school, who has recognised him and was coming over to say hello. Can Danny use the defence of self defence to a charge of battery?
Danny can use the defence of self defence to a charge of battery. The fact that he struck the man first does not matter, as in the case of Beckford. The fact that Danny is mistaken about the need to use the defence – because he was not actually under attack at all – is also immaterial. The defendant just needs to have an honest belief that he needed to defend himself (Gladstone Williams), and a proportionate response. -
Pierce is arrested for taking part in a bank robbery. When questioned, he contends that he was forced to go along with the robbery by his brother, who threatened to kill him if he didn’t do it. The police interviewer does not believe him. What does Pierce have to do to prove the defence of duress?
Nothing. Once the defence of duress is raised it is then for the prosecution to disprove it. This is the same for all the general defences except for insanity and diminished responsibility, where the defence must prove that the defendant is so afflicted. -
Is necessity a recognised defence in English law?
In a very limited way, the defence of necessity is now a part of English law. The defence is restricted to the facts of Re:A. If a similar situation arises, a doctor performing the surgery to separate the twins which would result in the death of one of them, would be allowed to use the defence of necessity against a charge of murder. The defence cannot be used in any other situation. -
Can duress be used as a general defence?
Yes, Duress is a general defence, but there are some restrictions. Duress cannot be pleaded as a defence to murder (Howe), or attempted murder (Gotts). It also cannot be pleaded if the defendant has voluntarily involved himself with criminals (Heath and Harmer).
Chapter 7
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Why is assault a crime if the ‘victim’ is not touched or harmed in any way?
The law regards a person’s physical integrity as very important. This concern extends to an individual’s personal space, and their right not to feel threatened while going about their everyday business. Even though the individual may not be physically harmed by an assault, there is harm to their mental wellbeing and harm to society when the defendant is willing to threaten another with physical violence. -
Under which English statute are the non fatal offences against the person found?
Most of the non fatal offences are found in the Offences Against the Person Act 1861. However, assault and battery are common law offences, which are charged under s39 of the Criminal Justice Act 1988. -
How does the mens rea of a s47 offence differ from the mens rea of assault?
It doesn’t – the mens rea requirement of a s47 offence is the same as that required for the assault (or battery) which ‘caused’ the actual bodily harm. The case of Savage is authority for this. No ‘extra’ mens rea requirement for the harm suffered is necessary. -
What does the word ‘maliciously’ in s20 of the Offences Against the Person Act 1861 mean in legal terms?
In this context, the word ‘maliciously’ has a specific legal meaning. It was held in the case of Mowatt that it means the intention to cause ‘some harm’ or to be reckless as to whether ‘some harm’ is caused. The defendant does not have to intend or be reckless as to the harm actually suffered by the victim. -
What is the difference in the mens rea requirements of GBH under s20 and s18 of the Offences Against the Person Act 1861?
The s20 GBH offence can be committed either recklessly or intentionally. The s18 offence can only be committed intentionally – a higher mens rea requirement.
Chapter 8
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When was ‘male rape’ recognised in English law?
The classification of non-consensual anal penetration as rape was introduced by the Criminal Justice and Public Order Act 1994. This act amended the Sexual Offences Act 1957 to include men as possible victims of rape. -
Can a woman be convicted of rape?
A woman cannot be convicted of rape as the principle (perpetrator), as rape can only be committed by a male. A woman can be convicted as an accessory in a rape case, as someone who has assisted, encouraged, aided or abetted the crime, as in the case of DPP v K and B. If a woman is convicted as an accessory to rape, she can be sentenced to the same punishment as the rapist himself – possibly life imprisonment. -
What are the presumptions under s76 SOA 2003 if either of the two circumstances under s76(2)a and s76(2)b are found to be present?
If either of the two circumstances under s76 are found to be present, it is conclusively presumed that the complainant did not consent to the relevant act, and the defendant did not believe that the complainant consented to the relevant act. Intentional penetration is the only thing that needs to be proven by the prosecution. -
Are the presumptions in s75 in breach of the presumption of innocence in English law?
No. The presumptions are evidential only. The defendant only has to put forward some evidence as to why he reasonably believed in the consent of the victim. This might be something that was said, or how the victim acted towards the defendant. Once this evidence is raised, the burden shifts back on to the prosecution to prove there was no consent and there was no reasonable belief in the consent. The evidential presumption is easily discharged. -
If cases such as Flattery already form part of the law, what is the advantage of making the principle in Flattery part of the Sexual Offences Act 2003?
Legal principles that come from common law, made up of cases, is always susceptible to change. A statute will over rule a common law principle, or another case could alter the decision. By codifying the decision in Flattery, in s76(2)a, the principle becomes part of the highest form of law in England and Wales, and much less likely to change.
Chapter 9
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What steps must a person take under s2(1)c of the Theft Act 1968 to find the owner of property so that they will not be found to be dishonest?
None. The section requires an ‘honest belief’ that the owner could not be found by taking reasonable steps. The definition of a ‘reasonable step’ will depend on the value of the property and the likelihood of being able to reunite the property and the owner. It may be difficult to find the owner of a wallet containing a few pounds, but even an empty wallet with the owner’s name and address inside would be easy to post back to the person who lost it.
Chapter 10
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Charlie and Leah decide to go our together and steal a woman’s handbag so that they can get some money for Bingo. They follow an elderly woman coming back from the Post Office where she has collected her pension. Charlie asks her the time, and as the woman goes to look at her watch Leah grabs her bag. The woman hangs on to the bag and starts to scream. Leah pulls out a gun and shoots the woman dead. What would Charlie be charged with?
It is likely that Charlie and Leah are in a joint enterprise as regards the robbery, but whether he can be charged with murder or not will depend on whether the action of shooting the woman was considered to still be within the joint enterprise. If Charlie knew Leah was carrying the gun, then he knew there was a ‘possibility’ she could use it, and that is enough for him to be within the joint enterprise and charged with murder alongside Leah. If Charlie had no idea the Leah was armed then her use of a gun would not even have been within his contemplation and he will not be liable for the murder. -
Izzy and Nico plan to rob a bank in the nearest town. Unbeknown to them, their conversations about the crime are recorded by their flatmate Mal. They discuss a time and date and how to get hold of replica weapons. They even discuss how much money they might steal. The next day, weeks before the intended robbery, Mal hands the tape of the conversation in to the police and Izzy and Nico are arrested. The find out from the police that the bank they were planning to rob closed down last month and is now an empty building. What might Izzy and Nico be charged with?
Izzy and Nico would be charged with conspiracy to rob under s1 of the Criminal Law Act 1977. They have agreed to a course of conduct, which, if carried out according to their intentions, will lead to the commission of a criminal act by one or more of them. The fact that the crime is factually impossible because the bank is no longer there is no bar to conviction, as stated in s1(2) of the CLA 1977. -
In terms of impossibility as regards inchoate offences, what is meant by the phrase ‘mistake of law’?
This means the action that the defendant is planning is not a criminal offence, even though she thinks it is. If Annie thinks it is illegal to own a dog and arranges to purchase one, she has made a mistake of law and cannot be guilty of any offence, in spite of her ‘guilty mind’. -
Marc is walking along a corridor when he hears John and Marvin arguing in a room. Marvin begins to punch John, who Marc dislikes. Marc decides to wait outside the room and prevent anyone who comes along from going in and rescuing John from the fight. In the event, no one comes along the corridor and Marc leaves, unseen by anyone, when the fight is over. Has Marc committed a criminal offence?
Marc may be guilty of assisting the crime of causing ABH or GBH depending on how badly John is hurt. Under s44 of the Serious Crime Act 2007 a person commits an offence if he does an act capable of assisting the commission of an offence, and intends to assist the offence. The act he does need not actually assist, and here it doesn’t, as no other person actually comes down the corridor. -
Conspiracy requires two (or more) people to make an agreement. If Peta and Joan are charged with conspiracy to murder and Peta is found not guilty, does this mean Joan cannot be found guilty either?
Joan can be found guilty of conspiracy to murder, even though Peta has been cleared. The Criminal Law Act 1977 s5(8) and 5(9) state that the acquittal of one alleged conspirator is no bar to the conviction of the other.