Introduction to criminal Law

1.1 - What is a crime?

How is a crime defined?
Is the conduct prohibited on pain of conviction and sentence?
1.2- Distinguishing criminal law from other kinds of law
1.3- The function of criminal law
1.4- Sources of criminal law
-Statute and common law: Why not a criminal code?
1.5- The classification of offences
The summary offences: Trialed in the magistrates’ courts without a jury. The magistrates’
courts may only sentence an offender to a maximum of 6 months of prison or 12 months
when the offender is sentenced for more than one offence.
- The either way offences (medium seriousness): trialed either in the Crown Court with a jury
or in a Magistrate’s Court without a jury. A mode of trial earing will take place into
Magistrates’ Courts in order to determine whether the defendant will be trialed.
Choice: “right to trial by a jury”: the defendant has no such right if he is charged with
a summary early offence.
- The undoubtable early offences (most serious offences): murder, manslaughter, rape,
robbery and causing grievous bodily harm with intent. Trialed Crown Court with a jury.

1.6- The criminal justice process

- Police and criminal evidence act, 1984: governs police powers and the admissibility of
evidence gathered during the investigation.
- Criminal justice act, 2003: governing most aspects of the criminal justice system.
- Criminal procedure rules, 2012: governs the management of a criminal case within the
courts and provide / objective: criminal cases must be dealt with justly.
- CPS (Crown Prosecution Service) leads the prosecution.

The criminal justice system in five steps:

- Investigation: police tries to establish the truth about the offence (witness statement, seize
the CCTV footage).
- Arrest and charge: Police arrests the suspect for a criminal offence and interview him at the
police station while he is being kept in custody (identification parade). After consulting the
CPS, Police charges the suspect with the offence and then send the file of the procedure to
the CPS (responsible for the decision to bring a criminal prosecution against an individual or
not). If the suspect is prosecuted, he will be referred to as “the accused”. Private prosecution
possible but costly.
- First court appearance: The accused charged with the offence is now called the “defendant”.
Appears at court as soon as possible. The case would be called “R v. the defendant”. The first
court appearance always takes place at a local Magistrates’ Court: the charge would be read
by the defendant and he would simply be required to confirm details such as his name and
address.
- Trial: prosecution must prove that the defendant committed a criminal offence: calls the
witnesses first, then the defense may submit a “no case to answer”1 (optional). If admitted,
the acquittal will be pronounced. If the no case to answer is not successful, the case
continues and both the prosecution and defense will give closing speeches. At this stage, in
the Magistrates’ Court, the judge, usually three JP’s (Justices of Peace) or one district judge,
will retire to consider their verdict. When the magistrates or jury reach their verdict, they
will deliver it in open court.
- Verdict and sentencing:
- Not guilty verdict, the defendant is acquitted and free to leave court.
- Guilty verdict, the defendant is convicted of a criminal offence and the
court will sentence him.
o It is quite usual for the trial judge to adjourn proceedings for
four weeks in order to obtain a presentence report (PSR) on
the offender (written by a probation officer who has meetings
with the offender during the adjournment).

1.7- The hierarchy of the criminal courts

- Defendant first appearance: always in the Magistrates’ Court (lowest court of the hierarchy
with no jury:
- “district judge” or
- a bunch of three lay judges, not legally qualified who are usually JP’s (justices of peace).

- Crown Court: trial for undoubtable early offences and appeals against conviction by a
Magistrate’s Court. It involves the jury.
- Jury: judge of facts.
- Judge is always legally qualified and is called “the circuit judge”.
- The judge is a tribunal of law: it is his job to make rulings under law.
He decides the admissibility of evidence and summarize the case to
the jury to direct them on the law.

- High Court: appeal on the point of Law.

- Supreme Court (formerly House of Lords, before October, 1st 2009): Appeals from the court
of appeal if it certifies a question of law of public importance and grants leave to appeal.
o If leave to appeal is refused by the Court of appeal, an
application for leave can be made directly to the Supreme
Court.
o Section 58 of the criminal justice act, 2003: the prosecution
may appeal against an acquittal to the Court of Appeal.
The attorney general may also refer a case to the Court of Appeal if clarification under law is
required. These decisions are referred to as “attorney general references”.

1.8- The burden and standard of proof

1
The no case to answer consists in arguing either that the prosecution has failed to prove
the elements of the offence, or that the evidence that they have put forward is so weak that
a jury, or magistrates, properly directed, could not convict on it.
 - « innocent until proven guilty”
- “beyond reasonable doubt”.
- Burden of proof:
- Prosecution bears the burden of proving against the defendant and of this proving of any
defense that this defendant might raise. Indeed, the defendant does not have to prove
anything as he is presumed to be innocent until proven guilty by the prosecution (“the
famous concept of presumption of innocence”).
o Article 6.2 of the European Convention / incorporated in the law of England and Wales by
the Human Rights Act, 1998.
- Principle of evidence (by the prosecution): Woolmington v. DPP, 1945.
o But if defendant pleads a defense of insanity or diminish his responsibility, the burden of
proving will be on him then the standard of proof is different.

- Standard of proof:
- On the prosecution: it is beyond reasonable doubt (intentionally high
standard of proof).
o Miller v. Minister of Pensions, 1947.
o Case of Folley, 2013: “reasonable doubt” and “to be sure” are
synonymous.
- Sometimes, the burden of proof lies on the defendant: The standard of proof is on
the balance of probabilities (a lower standard of proof). The jury of magistrates only
need to be 51% sure of the facts put forward.
Prosecution Defense
Burden of proof Prove all the elements of Prove the defense
offence
To disprove the defense
Standard of proof Beyond reasonable doubt On a balance of probabilities
above 51%

- The evidential burden

- Not a burden of proof: it is simply a burden to raise some evidence in
order to make an issue a live one.
- The legal burden remains on the prosecution to prove beyond
reasonable doubt that the elements of the defense are not satisfied.
- It is significant when the defendant relies upon certain defenses such as:
o Self defense
o Loss of control
o Automatism
o Duress

1.9- The elements of the offence (to constitute liability)

o Actus reus: “guilty act”
o Mens rea: “guilty mind”
o Absence of the defense
 Chapter 2: Actus Reus
2.1- No liability for evil thoughts alone
No actus reus  no criminal liability.

2.2 The elements of actus reus

Deller (1952): All the actus reus elements must be proved (act, omission, occurrence of a
result, existence of surrounding circumstances).
“Strict liability offences”: criminal offences that do not require a mens rea element for every
element of the actus reus.

The actus reus contains three conduct elements2:

- Conduct offences (dueing offences): can involve an omission to act (perjury/false
statement).
- Consequences elements: involve a result which must have been caused by the conduct of
the defendant (result crime): death/murder.
- Circumstances elements (“state of affairs crimes”/surrounding circumstances): involve the
existence of a set of circumstances or state of affairs. Offence simply depends upon the
existence of a set of circumstances.

2.3- The actus reus must be voluntary

Must be voluntary performed: the defendant must have had the capacity to control its
movements at the time that the defendant performed the actus reus of the offence.
Hill v. Baxter (1958): Exclusion of defense of automatism (muscle spasm, reflex or for
physical proportion).

2.4- Omission offences

Failure to stop after having had a car accident.

2.4.2- General rule3

There is no liability for an omission to act: “there is no duty of easy rescue”.

2.4.2- Exceptions (5)

- Special relationships4: the closer the relationship, the more likely it is that the law will
impose a duty to act.
o Relationship between parent and child: Downes (1875)
o Married couple relationship 5
o Doctor/patient relationship6
 Airedale NHS trust v. Bland: no liability for switching off
a life sustaining machine since it results from an
omission to act.

2
Involves an act or an omission to act by the defendant.
3
Differs from the French social responsibility view in favor of easy rescue.
4
Gibbins and Proctor (1918).
5
Smiths (1979) / Hood (2004).
6
Doctor Arthur (1981): passive act of euthanasia (omission to sustains life) on a down syndrome baby.
 - Statutory duty
- Contractual duty or public duty
- Duty to avert danger created, also called supervening fault.
- The Common Law imposes a duty on a defendant to act to avert a
danger that he has created. Indeed, when the defendant innocently
does an act which creates a risk of personal injury or damage to
property and the defendant becomes aware of that risk, the law
imposes on him a duty to act to avert or minimize danger.7
o Santana Bermudez (2003): a defendant becomes liable when
he realizes the danger that he has created and then fails to
take reasonable steps to avert the danger.
- Voluntary assumption of responsibility: A duty to act may be imposed
on a defendant when he has voluntary assumed responsibility for
another person. Hence, when the defendant undertakes to care for a
helpless or infirm relative, any omission to do so resulting in death will
render the defendant guilty of murder or manslaughter.89
o Stone and Dobbinson (1977).
o Ruffell (2003).

Thinking point
On 3 May 2007, a 10-year-old boy, Jordon Lyon, jumped into a pond in order to save his
younger stepsister who had got into difficulties in the water. Two men who were nearby
jumped in and saved the stepsister. However, by this time, Jordon had disappeared out of
sight.
Two police community support officers arrived at the scene after the alarm was raised.
They could see no sign of Jordon, so they radioed trained officers for assistance.
Unfortunately, Jordon drowned. The community support officers were criticised in the
press for failing to jump into the water (BBC News, 'Police Defend Drowning Death Case',
reported 21 September 2007 available at: http://news.bbc.co.uk/1/hi/england!
manchester/7006412.stm).
Do you think the officers had a duty to jump into the water?

2.4.2.5 - Statutory duty

Under s.1 of the Children and Young Persons Act, 1933, it is an offence for a person to
willfully neglect a child.10

2.4.3 - Offences which may be committed by omission

Murder and manslaughter can be committed by omission.
DPP v Santana-Bermudez: an assault can be committed by omission.
Fagan v Metropolitan Police Commissioner [1969] 1 QB 439: 'continuing act' theory: In
order for a defendant to be guilty of an offence using this theory, he must form the mens rea
for the relevant offence at some point during the continuing act. In the present case, the
7
Miller (1983): squatter/fire/fleeing  convicted of arson.
8
Nicholls (1874): “If a grown-up person chooses to undertake the charge of a human creature, helpless, either
from infancy, simplicity, lunacy or over infirmity, he is bound to execute the charge without negligence”.
9
Instan (1893): implied undertaking of an aunt/negligence in feeding and summoning medical assistance.
10
Sheppard [1981] AC 394: cruelty and willful neglect toward a child.
defendant formed the mens rea of an assault when he realised he was on the officer's foot
and refused to move. At this point in time, his conduct was still continuing, thus the actus
reus and mens rea of assault coincided and the defendant was guilty.

2.5 - Causation
Result crimes: the prosecution must prove that the defendant caused the result in order for
the actus reus to be satisfied.
Clarke and Morabir [2013] EWCA Crim 162: in a murder case, the question of whether the
defendant had caused the death of the victim is a question for the jury to determine.

Two main rules of causation:

The prosecution must prove that the defendant was the factual cause of the result and that
he was the legal cause of the result.
But for test: it must be established that but for the defendant's actions, the result would not
have occurred.

Legal causation is referred to as the 'chain of causation': the prosecution must prove that
there was no novus actus interveniens ('new intervening act'), which broke the chain of
causation.

2.5.2 - Factual causation

But for test: The prosecution must initially establish that the defendant conduct was a
factual result (must be sine qua none of the result).

R v. White, 1910: mother poisoned that died from heart failure and not from poisoning
(defendant acquitted of murder but convicted of attempted murder because he took steps
which were more than preparatory).
R v. Dallaway, 1847: factual causation could not be established. The defendant negligently
driving a horse when a child was struck. The child would have die even if the driver had been
driving carefully.
R v.Mitchell, 1983: the defendant became impatient while queuing in the post office. He
pushed the person in front of him, a 72 years old man who felt forward onto the next
person, an 89 years old woman. The woman fell and broke a hip. She later developed a
blood clot and died. Factual causation was here easily established.
R v. Dyos, 1979: two groups of young people were involved in a fight, one of them died. He
had two main wounds, one of which was caused by the defendant. The source of the other
wound was unknown but both were potentially fatal and either one could have caused the
death of the victim. There was no evidence as to which wound was caused first. Today, the
defendant would be guilty under the domestic violence crimes and victims act of 2012 which
provides that it is an offence to cause death or physical harm to a child or a vulnerable adult
2.5.2 – Novus actus interveniens

When the defendant’s conduct is more than a minimal or an operating and substantial cause
of the result, the defendant will be the legal cause of that result, unless there is a novus
actus interveniens which breaks the chain of causation such as: unforeseeable escape,
voluntary act by a third party or the victim, negligence for medical treatment or natural
event.

The thin skull rule: “you take your victim as you found them”. Where the victim suffers from
some latent, pre-existting physical condition which renders him unusually susceptible to
injury, the defendant remains liable for the consequences of his conduct. 11
Test of 'reasonable foreseeability’

Fear of the victim:

R v. Mackie (1973): defendant was looking after a 3-year-old boy. The boy, fearful of being
harmed by the defendant, ran away and fell down a flight of stairs. He died and the
defendant was convicted of manslaughter.

11
R v. Hayward (1908): excited man chases and frightens his wife that collapses and dies due
to a thyroid condition. No braking of the chain of causation.
Williams and Davies (1992): The Court of Appeal questioned whether the victim's conduct
was within the 'range of responses which might be expected' in the circumstances.
The victim's act must be:
o proportionate to the threat, that is to say that it was within the
ambit of reasonableness and not so daft as to make it his own
voluntary act which amounted to a novus actus interveniens
and consequently broke the chain of causation.
o The test is:
 Whether the deceased's reaction . . .was within the
range of responses which might be expected from a
victim placed in the situation which he was. The jury
should bear in mind any particular characteristic of the
victim and the fact that in the agony of the moment he
may act without thought and deliberation.

R v. Lewis [2010]: the nature of the escape by the victim must be a foreseeable consequence
of the unlawful act.

Williams and Davies introduced a subjective element into the objective 'reasonable
foreseeability' test: the jury should consider what might be expected from a person in the
same situation as the victim, taking into account the characteristics of the victim.
Corbett (1996): escape by a drunk, mentally handicapped man. The victim’s characteristics
were to be taken into account by the jury in deciding whether the response was within the
range of foreseeable responses.
Marjoram [2000]: the characteristics of the defendant must not be taken into account. The
characteristics and circumstances surrounding the victim may be relevant, but those of the
defendant are not. Hence, the test to be applied is: whether the victim’s response was one
within a range of responses to be expected of a person in the victim's situation, bearing the
victim's characteristics.

2.5.3.3 Victim’s self-neglect

Conduct of the victim may break the chain of causation.
Holland (1841): refusing an amputation would not appear to be unreasonable as such an
operation was likely to carry a high degree of risk in 1841.
Dear [1996]: self-neglect by the victim does not release the defendant of liability. The
defendant slashed the victim who had sexually abused his 12-year-old daughter. The victim
died 2 days later from loss of blood.
The defendant would be liable if his conduct 'made an operative and significant
contribution to the death'. As long as the defendant’s act was a cause of the victim's death,
it did not matter that it was not the sole cause.

2.5.3.4 The drugs cases

Kennedy [2007]: the defendant prepared a syringe of heroin and handed it to the victim. The
victim injected himself with the drugs and later died. The defendant was acquitted since the
victim’s fault was intentional and self-acted.
2.5.3.5 Third party intervention
Act committed by a third party might break the chain of causation.
R v. Pagett, 1983: if the intervening act from a third party is a voluntary one, then the
defendant should not be liable.
R v. Curley (1909): defendant had an argument with a woman he lived with. Without
touching her, she jumped out of the window. The defendant was charged of manslaughter.
R v. Roberts (1971): defendant made sexual advances towards a woman while driving her
home and tried to pull her coat off and told her that he had previously beaten-up a women
who had refused his advances. The woman jumped out of the moving car as a result of the
defendant’s conduct and was injured. The court of appeal held that it had been established
that the defendant caused the victim’s injury. Indeed, although the injuries had been caused
in part by the victim’s own conduct in escaping, her escape was reasonably foreseeable in
those circumstances.

The test is “was it the natural result of what the defendant said and did, in the sense that
it was something that could have been reasonably foreseen as the consequence of what
he was saying or doing?”.

2.5.3.6 Negligent medical treatment

The conduct of a doctor, even if negligent, does not release the defendant from liability. A
negligent doctor may himself be liable civilly for negligence, or may even be criminally liable
for gross negligent manslaughter where the victim dies as a result of his negligent conduct.
However, any such liability on the part of the doctor is a separate issue entirely to that of the
defendant liability.

R v. Smith [1959]: the defendant was a soldier who stabbed another soldier during a fight in
their barracks. The victim was given inappropriate medical treatment and died. The issue on
appeal was whether the negligent medical treatment was sufficient to break the chain of
causation and absolve the defendant of liability. The Court Martial Appeal Court held that in
order for the defendant to be liable, the original wound need not be the sole cause of death,
as long as it was still an 'operating and substantial' cause of death.

R v. Cheshire (1991): The defendant shot the victim in the leg and the stomach. He was
given a tracheotomy at the hospital but his windpipe became blocked and he died. The
victim's wounds were no longer life-threatening at this time, yet the original attacker was
charged with murder and convicted. There was evidence to suggest that medical staff had
not realized quickly enough the severity of the blockage. Nevertheless, the Court of Appeal
held that the original attacker's conduct was an operating and substantial cause of death.
Hence, the chain of causation may be broken where the doctor's conduct was ‘so independ-
ent' of the original attacker's act and 'so potent in causing death’ that it rendered the contri-
bution made by the original attacker's act as 'insignificant'.

Jordan (1956): victim stabbed by the defendant and died after medical treatment. At the
time of death, the wound had mainly healed, but negligent medical treatment had
contributed to the death of the victim. The defendant's conviction for murder was quashed
on appeal because the medical treatment had been 'palpably wrong' and had broken the
chain of causation between the defendant’s original act of stabbing the victim, and the
victim's death (unlikely to be applied again).

2.5.3.7 Natural events

A natural event which was not reasonably foreseeable (an ’Act of God') will break the chain
of causation. As with ‘escape' cases, the foreseeability of the subsequent event is the
determining factor for liability.

2.6 Surrounding circumstances - `State of affairs' crimes/'absolute liability' offences.

These offences require no conduct or voluntary act to be proved, and as such, are an
exception to the general rule that the actus reus of an offence must be voluntary. The
defendant will be guilty of the offence if the prosecution prove simply that a specific set of
circumstances exists. These offences are 'being' crimes, not 'doing' crimes. 12

Winzar v. Chief Constable of Kent (1983): police removed the defendant from the hospital
and took him in their patrol car along the highway. They then left him at a point on the
highway. He was then picked up by another patrol car and arrested for being drunk on a
highway. He was guilty of the offence if he simply was drunk on the highway.

Larsonneur (1933): the defendant, a French citizen, was deported from the UK. She travelled
to Ireland, where she was arrested as an illegal immigrant and returned to the UK in custody.
On arrival in the UK, she was then arrested and convicted for being illegally in the country.

Summary
The law does not punish individuals' evil thoughts' alone: some element of actus reus is required. If there is no actus
reus, there is no crime.
The actus reus of an offence may involve an act or omission (conduct crimes); certain consequences being caused (result
crimes); or, the existence of surrounding circumstances ('state of affairs' crimes).
The actus reus of an offence must be voluntarily performed.
The general rule is that there is no liability for an omission to act.
There are five exceptions to this: special relationship; voluntary assumption of responsibility; supervening fault;
contractual duty or public office; and statutory duty.
Causation is an actus reus element: where the defendant is charged with a 'result' crime, the prosecution must prove
that he caused the result in order to establish the actus reus of the offence.
The test for factual causation is the 'but for' test: White (1910). It must be established that but for the defendant's
conduct, the result would not have occurred.
Legal causation is the 'chain of causation': the defendant's conduct must be a more than minimal cause of the result, or
an 'operating and substantial cause': Smith (1959); or, it must 'contribute significantly' to the result: Pagett (1983).
If there is a novus actus interveniens, the chain of causation will be broken and the actus reus will not be established.
The types of intervening event which might break the chain of causation are: an unforeseeable escape: Roberts (1971); a
voluntary act by the victim: Kennedy (No. 2) (2007); a voluntary act by a third party: Pagett (1983); negligent medical
treatment which was 'so independent of the defendant's act' and 'so potent in causing death' that the contribution
made by the defendant was rendered insignificant: Cheshire (1991); and a natural event which was not reasonably
foreseeable.
The thin skull rule states that the defendant must 'take his victim as he finds him'. This means 'the whole man, not just
the physical man': Blaue (1975). The chain of causation is not broken by the existence of a latent, physical, or

12
Offence of being in charge of a motor vehicle on a road or public place whilst unfit to drive through drink or
drugs, contrary to s.4 of the Road Traffic Act 1988 / offence of having an offensive weapon in a public place,
contrary to s.1 of the Prevention of Crime Act 1953.
 psychological condition which renders the victim particularly susceptible to unusual consequences.

Part III – Mens rea

Mens rea is the mental element (one or plural) of fault element of a criminal offence.
In order to be convicted of a criminal offence, the prosecution must prove that the
defendant had the requisite mens rea for the particular offence charged.

Only exception: prosecution of strict liability offences.

Categories of mens rea: intention and recklessness. Some other fault elements are
knowledge and belief or negligence.

3.1 Subjectivity13 and objectivity14

Intention and recklessness = subjective contents.

Negligence = subjective concept.
R v. G and another (2003): Recklessness becomes an objective concept.

3.2 Motive

Motive ≠ intention.
A defendant motive is not relevant to its criminal liability.
Motive = reason why one would want to commit an offence.
Intention = will to commit an offence.

Motive (can be good/admirable) becomes relevant after conviction as it might be used in

litigation to reduce the sentence which might be imposed on the offender.

R v. Steane (1944): confusion of motive with intention in an attempt to be sympathetic with

the defendant.

3.3 Intention

Intention = the most culpable form of mens rea, as it involves acting with the objective of
bringing about a consequence or with the desire to bring about that consequence and
foresight that your actions are virtually certain to do so.

Tariff = minimum period to be served in order to satisfy the sentencing objectives of

deterrence and retribution before the prisoner is eligible for parole.

Two types of intention: direct intent and oblique (or indirect) intent.

13
A subjective approach examines what the defendant himself saw or perceived as a consequence of his
actions.
14
An objective approach compares the defendant’s action with those of a hypothetical reasonable person.
3.3.1 Direct intent
Direct intent = one's aim/purpose.

3.3.2 Oblique intent

3.3.2.1 The development of the law

The degree of foresight required for oblique intention has not always been clear.

DPP v Smith [1961]: court confusingly used an objective presumption to conclusively identify
what the defendant's intention was. In this case, the defendant was driving a car containing
stolen property. He was asked to pull over by a police officer but flew and the officer died in
the chase. The defendant intended to escape and not to kill, but he was convicted of murder
because “intention should be objectively assessed, approving an irrefutable presumption of
law that a man intends the natural and probable consequences of his acts”.

Hyam v. DPP [1975]: defendant poured petrol through the letterbox of her ex-lover's fiancée
and ignited it. Two children died in the fire. Convicted and sentenced for murder.

Mohan [1976]: defendant convicted of attempting (by wanton driving) to cause bodily harm
to a police officer. “Evidence of knowledge of likely consequences, or from which likely
consequences can be inferred, is evidence by which intent may be established but it is not, in
relation to the offence of attempt, to be equated with intent”. If the jury find such
knowledge established they may and, using common sense, they probably will find intent
proved, but it is not the case that they must do so.

Moloney [1985]: House of Lords recognizes that its decision in Hyam v DPP had caused
confusion and that clarity and simplicity were of paramount importance in this area of the
law.

3.3.2.2 The current law

Oblique intent = less common form of intention. It does not involve a person's aim or
purpose, nor does it involve the desire to do an act. It does, however, require the
consequences of the defendant's actions to be virtually certain to occur along with the
defendant's appreciation that they are so (table 3.1).

It can be said that direct intent result in the defendant’s aim or purpose and that the
consequences are desired and foreseen as certain but not necessarily.
In oblique intent, the result was not the defendant’s aim or purpose and the defendant did
not desire the consequences but they are virtually certain to occur and he appreciates this.
Matthews v. Alliene (2003): the foresight of consequence is a piece of evidence.