Criminal Litigation

Criminal Law | sqe exam criminal law books

Criminal Law

MARK THOMAS, SAMANTHA PEGG

This book will guide you through the core legal principles and rules to be tested by the Solicitors Qualifying Examination (SQE1) Functioning Legal Knowledge (FLK) assessment in criminal law. It will help you revise the fundamental principles and test your knowledge throughout by the use of SQE-style multiple-choice (single best answer) questions, as well as with practical examples of the application of the law. Case law and legislation will be provided where necessary, with the text focusing on the fundamental principles behind those common law and statutory statements.

 

Author details

Mark Thomas is a non-practising barrister, and principal lecturer for student experience, specialising in criminal law, procedure and evidence. He has taught law for a number of years at both undergraduate and postgraduate level, including the Legal Practice Course (LPC). He has published academic textbooks in the field of criminal law and evidence, and have extensive experience in writing revision-style books for law students.

 

 

Samantha Pegg is a senior lecturer and course leader, specialising in criminal law. She has taught for 18 years at undergraduate and postgraduate (GDL) level and undertakes research in criminal law and legal history. She has published on sexual offences, criminal law and the role of the media in reporting criminality.

 

 

 

 

1
General principles of
criminal law
MAKE SURE YOU KNOW
This chapter will cover the core principles of criminal liability. You are
required to understand the terms actus reus and mens rea, and the
legal principles that flow from those terms. You are required to be able
to apply these legal principles and rules appropriately and effectively
to realistic client-based and ethical problems and situations for your
SQE1 assessment.
The SQE1 Assessment Specification has not identified that candidates
are required to recall/recite any case names, or statutory materials,
for actus reus and mens rea.
actus
reus
mens
rea
criminal
liability
Overview of criminal liability
2 General principles of criminal law
SQE ASSESSMENT ADVICE
As you work through this chapter, remember to pay particular attention
in your revision to:
• the elements of a criminal offence
• the meaning of actus reus
• omissions liability
• establishing causation
• the various mens rea terms
• the requirement of contemporaneity.
WHAT DO YOU KNOW ALREADY?
Have a go at these questions before reading this chapter. If you find
some difficult or cannot remember the answers, make a note to look
more closely at that during your revision.
1) Fill in the blank: the actus reus of an offence generally refers to
_________________.
[Actus reus, pages 3–12]
2) Can you be criminally liable for an omission to act?
[Omissions liability, pages 4–7]
3) True or false: an interference by a third party will always break the
chain of causation and relieve the defendant of liability.
[Legal causation, pages 7–12]
4) What direction must be given to the jury when they are deciding
whether a defendant has oblique (indirect) intent?
[Oblique intention, pages 12–13]
Introduction to general principles of criminal law 3
INTRODUCTION TO GENERAL PRINCIPLES OF CRIMINAL
LAW
To begin with, we are concerned with the fundamental elements of a
criminal offence. These are labelled the actus reus and mens rea.
Key term: actus reus
Actus reus broadly translates as ‘guilty act’ and refers to all elements
of an offence that are not concerned with the state of mind of the
defendant (D). It is worth noting that the actus reus of an offence
does not have to be a positive act. For example, murder requires a
‘killing’ and this may be by way of a positive act or an omission.
Key term: mens rea
Mens rea is the term used to represent the state of mind required
of D (also known as the fault element). Mens rea is either subjective
(concerned with D’s state of mind) or objective (assessed by
reference to the reasonable person).
Most of the offences within this revision guide require that a particular
result is brought about. These are called result crimes. For these offences
you must also consider the principles of causation.
Key term: causation
Causation is concerned with culpability, or responsibility, and
requires you to identify whether D should be held criminally culpable
for a result that has been brought about.
Those offences that do not require a result to be brought about are
called conduct crimes. We identify what crimes are ‘conduct’ and ‘result’
throughout the remaining chapters.
ACTUS REUS
The actus reus of an offence is set out in the relevant statutory or commonlaw definition. The actus reus provides the elements of the offence that
must be established by the prosecution to prove the defendant’s guilt.
These may include an act or an omission, but may also require that
particular circumstances exist, or that a specific result is brought about.
For example, the actus reus of murder is the ‘unlawful killing of a human
being within the Queen’s peace’. This definition gives us the elements
that must be established for criminal liability. There is no defined
4 General principles of criminal law
act or omission that must be proven, but the offence requires three
circumstances are proven: that the victim is a human, that the killing
takes place during peace time, and the killing is unlawful. It also requires
one result: the death of the victim (see Chapter 5).
Let us consider some general actus reus principles that could be relevant
to the SQE1 assessment.
The actus reus must be voluntary
The defendant must have consciously committed the actus reus of
the alleged offence or he cannot be criminally liable. By conscious
commission, we mean that he must have been doing something
voluntarily, under his own volition. If his muscles are not being controlled
by his conscious mind, he cannot be said to be acting voluntarily. For
example:
• Sam strikes out to swat a wasp in her car and loses control of the car,
hitting a pedestrian.
• Mark falls down the stairs and, while plummeting, strikes Sam with his
foot.
• Sam sneezes and reflexively throws the dinner plate she is drying. The
plate hits Mark on the nose.
However, the defendant cannot escape liability simply because they
cannot control an impulse to act, or if they argue that they did not intend
to bring about that result – their conduct must be truly involuntary.
In many cases, this will be as a result of what is termed ‘automatism’.
This is a specific defence that requires a total loss of control that stems
from an external cause. Chapter 4 explores where that external cause is
a non-dangerous drug, but automatism may also result from something
as simple as concussion.
Exam warning
Be aware that the SQE1 Assessment Specification does not expressly
require you to know the substantive defence of automatism.
Automatism is, however, a fundamental aspect of criminal liability
generally, in that it must be proven that D acted voluntarily. Keep an eye
out for those circumstances where D’s conduct may not be voluntary.
Omissions liability
An omission is a failure to act. As our system of law focuses upon
prohibiting certain acts, the general position is that individuals are
Actus reus 5
not liable for offences based upon their failure to act. However, this is
subject to some significant caveats. Figure 1.1 identifies the process to
undertake when considering omissions liability.
Can the
offence be
committed
by omission?
Is there a
recognised
duty to act?
Has the duty
to act been
discharged?
Figure 1.1: Omissions liability
Can the offence be committed by omission?
First, you need to identify whether the offence in question is capable
of being committed by omission. For each offence considered in this
revision guide, we will identify whether it can be committed by omission.
By way of example, while murder may be committed by omission,
unlawful act manslaughter cannot (see Chapter 5).
Is there a recognised duty to act?
The next issue is whether you are in a position that imposes a legal duty
to act (rather than a moral duty). The common law has established a
number of exceptions to the general principle that you are not liable for
a failure to act. These are detailed in Table 1.1.
Practice example 1.1
Carly is a heroin addict who has moved in with her mother. Her halfsister Gemma visits their mother’s house, bringing Carly some heroin
that Carly then self-injects. It rapidly becomes obvious that Carly
has overdosed and, although Gemma and her mother take steps to
make Carly comfortable, they do not call for an ambulance as they
are concerned they may get into trouble. Carly dies as a result of an
overdose. Gemma is charged with gross negligence manslaughter,
but Gemma must be under a duty to act to be liable.
Does Gemma owe a duty to Carly and, if so, under which category is
a duty imposed?
These were the facts of R v Evans [2009] EWCA Crim 650. Here the
court discussed the possibility of a duty arising under relationship
(as Carly was Gemma’s half-sister), through an assumption of care
(as she took steps to look after her) and creation of/contribution to
a dangerous situation. A duty does not have to be established by
using only one exceptional category.
6 General principles of criminal law
Table 1.1: Recognised duty categories
Duty category Explanation
Statutory or contractual
duty
A duty may be imposed by statute.
Where a failure to fulfil a contractual term
poses a risk of death, a duty to act is imposed.
For example, in R v Pittwood (1902) 19 TLR
37, a railway employee neglected to close the
gate to prevent the railway line being crossed
when a train was coming. A road user was
hit by the train and killed when crossing the
tracks.
In R v Dytham [1979] QB 722, a police
officer saw a man being beaten and did not
intervene. The man died as a result. The officer
was under a duty to act by virtue of
his position. This duty flowed from his
contractual obligation, or his position of
public office.
Special relationship A duty may arise from a close relationship,
though it is likely this only extends to
parents (or guardians) and their young
children.
In R v Gibbins and Proctor (1919) 13 Cr App
R 134, a father and his partner intentionally
starved the man’s child to death. The father
was convicted of murder as he was under a
duty as the child’s father. His partner was also
liable as she had assumed responsibility for
the child (see below).
Voluntary assumption of
responsibility
Where an individual takes steps to assume
responsibility for another who is unable to
care for themselves due to, for example, age
or illness, a duty is imposed.
In R v Stone and Dobinson [1977] QB 354,
Stone’s sister (Fanny) came to live with
Stone and his partner. Both Stone and
Dobinson were mentally impaired, and
Fanny suffered from anorexia. The couple
initially cared for Fanny but as her condition
deteriorated the couple were unable to cope,
stopped attempting to care for her and
Fanny died. The couple were convicted of
gross negligence manslaughter.
Actus reus 7
Table 1.1: Continued
Has the duty to act been discharged?
Lastly, in order to be liable, the defendant must fail to discharge their
duty to act. To discharge a duty, you must merely take reasonable
steps. What amounts to reasonable steps will depend upon the situation
and you need to look out for this in SQE1. For example, a lifeguard –
contractually obliged to monitor safety at a swimming pool – would
be expected upon spotting a drowning swimmer to attempt a rescue.
Leaving poolside to fetch a fellow lifeguard (as he did not want to get
his hair wet that day) would be unreasonable and would not discharge
that duty.
Causation
Where an offence requires that a particular result is brought about, the
prosecution must also prove that the defendant caused that result.
In short, what you are looking for in an SQE scenario is an unbroken
set of events that has led to the result. If the defendant cannot be said
to be responsible because he had not contributed to that result, or his
contribution was diminished to insignificance as another party had
Duty category Explanation
Creation of/contribution
to a dangerous situation
Where D inadvertently creates a dangerous
situation, he is under a duty to act to rectify
that situation.
In R v Miller [1983] 2 AC 161, a squatter fell
asleep and set fire to a mattress he was
sleeping on with his cigarette. Upon waking
he made no attempt to extinguish the fire
or call the fire service, instead he moved to
another room. He was convicted of arson
(see Chapter 9). It was held that as he had
created a danger and was aware he had
done so, a duty to act would be imposed.
The courts have since moved away from this
purely subjective approach and a duty may
now also be imposed where a person merely
contributes to a situation that they know or
ought to know has become life threatening
(refer back to Practice example 1.1).
8 General principles of criminal law
played a greater role in bringing about the result, then he cannot be
held criminally culpable.
In most cases, causation will be a straightforward question. In more
difficult cases, consider the process in Figure 1.2.
Is D the factual cause of the end result?
Is D the legal cause of the end result?
Is there a new and intervening act which breaks the chain of causation?
Figure 1.2: Elements of causation
Factual causation
First, the defendant must be the factual cause of the result. This is
established through the ‘but for’ test; ‘but for the defendant’s actions,
would the prohibited result have occurred?’ If the result would have
happened regardless, then the defendant is not responsible.
When the defendant is charged with a homicide offence, this means we
must find that there has been an acceleration of death – as everyone will
(eventually) die (see Practice example 1.2).
Practice example 1.2
John puts potassium cyanide (a poison) into his mother’s drink,
intending to kill her. She dies that night, but it is established that she
had died of natural causes before the poison took effect.
Has John, in fact, caused her death?
These were the facts of R v White [1910] 2 KB 124. John could
not be the factual cause of death as his mother would have died
when she did regardless of his act. John was liable, however, for
attempted murder (see Chapter 3).
If factual causation is satisfied, the next step is to establish legal causation.
Legal causation
The second test is whether the defendant is legally culpable. There are
a number of key principles you need to be aware of. These are outlined
in Table 1.2.
Actus reus 9
Exam warning
Make sure that you do not confuse the causation principles in
criminal law with those studied in tort law. While factual causation is
the same in both areas of law, legal causation is an additional hurdle
in criminal law cases.
Table 1.2: Understanding legal causation
Principle Explanation and examples
D need only be a
more than minimal
cause of the
prohibited result
D must be the ‘substantial’ cause of the result,
though this has been held to mean ‘more than
slight and trifling’.
For example, in R v Pagett (1983) 76 Cr App R 279,
D shot at the police officers who were attempting
to arrest him. The officers returned fire and killed
a young girl who D was using as a human shield.
D was convicted of manslaughter as he was a
substantial cause of the result and the officers had
not broken the chain of causation.
D need not be the
only cause of the
result
There may be several causes that bring about the
result, and D need not be the only cause as long as
he is a ‘substantial’ cause.
In R v Benge (1865) 4 F & F 504, D, a railway
foreman misread a train timetable when a
section of the track was being raised. Flagmen
were supposed to wave a warning if a train was
approaching but were not at the correct distance.
The train hit the raised track, resulting in several
deaths. Despite the fact that a number of acts
(including that of the train driver who was not
paying full attention) contributed to the deaths, D
could still be held responsible.
D must be the
operating cause
D must be the operating cause at the time of death
(ie there is no break in the chain of causation).
In R v Smith [1959] 2 QB 35, D had stabbed a
comrade during a fight. V was carried to the
hospital and dropped twice in the process. When
he arrived at the hospital he was not examined
fully and left to bleed to death. A blood transfusion
would have saved his life. D was still responsible for
V’s death as the stab wound he had delivered was
still the ‘operating and substantial’ cause of death.
10 General principles of criminal law
New and intervening acts
As outlined in Table 1.2, the defendant must be the operating cause of
the prohibited result. The defendant will not be liable for that offence if
there is a break in the chain of causation – if an intervening event means
that he can no longer be said to be the true cause of the result. The SQE1
assessment may require you to know any of the following intervening
acts:
• Acts by the victim:
– The victim will break the chain of causation if he acts in a way that is
informed and voluntary (ie self-injecting drugs he has been supplied
with, and so bringing about his own death).
– Where the victim causes or contributes to his own injuries or his own
demise this may be attributable to the defendant if the victim’s actions
were ‘proportionate’ to the threat posed (see R v Roberts (1972) 56 Cr
App R 95 in Chapter 6). For example, Mark runs into the path of a car
and suffers serious injuries while trying to escape from Sam, who was
threatening him with a knife. This is a proportionate response and Sam
will be responsible for the serious injuries inflicted. Only where the
response is unreasonable (or ‘daft’) will it break the chain.
– Where the victim neglects injuries inflicted by the defendant (ie by
failing to seek treatment after being stabbed), the defendant will
remain responsible for the extent of the injuries suffered (see Take
your victim as you find them).
• A ‘free, deliberate and informed’ intervention by a third party:
– An independent third party may intervene and break the chain of
causation if their action is ‘free, independent and informed’. For
example, if Mark punches Sam and, while she is laying on the floor,
Jensen (who has a grudge against Sam) runs over and stabs her to
death, Mark will not be responsible for her death (merely the original
injuries). In Pagett, considered in Table 1.2, the chain of causation
was not broken by the police officers as they were not acting ‘freely’
when they were forced to return fire.
• Medical treatment:
– Our starting point is that it is highly unusual for medical treatment
(or medical neglect) to break the chain of causation. Treatment that
is merely negligent will not break the chain of causation.
– To break the chain, the treatment must be an independent act that
is ‘so potent’ that the defendant’s contribution is insignificant. The
treatment (or lack thereof) must be ‘so overwhelming’ that it makes
the original injury ‘part of the history’. This potent and independent
act must amount to treatment that can be characterised as ‘palpably
wrong’.
Actus reus 11
• Unforeseeable natural causes:
– ‘Acts of God’ will only break the chain when they are both
unforeseeable to the reasonable person and were unforeseen by
the defendant. For example, suppose Mark leaves Sam injured and
unable to move on a beach at low tide. Mark will be responsible for
Sam’s death when Sam drowns as it is foreseeable that the tide will
come in. But where Mark leaves Sam injured and unable to move in
her garden, and Sam dies as a result of being struck by lightning,
Mark will not be responsible for her death.
Exam warning
Try to remember that the chain of causation can be broken in three
main ways: by acts of a third party, by acts of the victim and by acts
of God (ie a natural unforeseeable event). If you are faced with a
multiple-choice question (MCQ) assessing causation, keep an eye out
for one of these three intervening acts.
Take your victim as you find them
A factor that cannot break the chain of causation is an inherent weakness
of the victim. Suppose Sam punches Mark, who has an abnormally thin
skull. She will be responsible for Mark’s death despite the fact Mark is
abnormally sensitive to injury.
This principle extends further than physical vulnerabilities. Consider the
following examples:
• A man cut the victim’s finger. The victim refused medical treatment
and died of tetanus (a bacterial infection).
• A woman who was a Jehovah’s Witness refused a blood transfusion
after being stabbed as her religion did not allow her to undergo that
procedure. She died from her injuries.
In both of these cases, the defendants were held responsible for the
deaths of their victims. In the first, the judge merely directed the jury
to ask whether the injury was the actual cause of death. In the modern
day, failing to seek treatment for a relatively minor injury may seem
unreasonable, but in the second example, the court made it clear that it
is irrelevant whether the victim’s response is reasonable.
Summary: what do we know about actus reus?
What is actus reus
concerned with?
Actus reus refers to the external elements of
a crime and is concerned with the conduct,
circumstances and results (if any) of a crime.
12 General principles of criminal law
Does the actus reus
require an ‘act’?
What is the test
for causation in
criminal law?
While most crimes will be committed by
way of a positive act, it is possible for many
offences to be committed by a failure to act
(ie an omission). In order for this to be the
case, the crime has to be capable of being
committed by omission and there must be a
legal duty on D to act.
The magistrates or jury must be satisfied that
D was the factual (ie ‘but for’) cause of harm,
as well as being the legal cause of harm. As
part of causation, there must not be a new
and intervening act that breaks the chain of
causation.
MENS REA
The following discusses the common mens rea terms of intention,
subjective recklessness and negligence.
Intention
Intention is the highest standard of mens rea required for serious
offences such as murder (see Chapter 5) and causing grievous bodily
harm with intent (see Chapter 6).
Intention has been given two different interpretations in criminal law:
direct intention and oblique intention. Both are subjective, focusing on
the defendant’s state of mind at the time the actus reus is performed.
Key term: direct intention
Direct intention is where it is D’s aim or purpose to bring about a
prohibited result. For example, Sam points a gun at Mark, intending
to kill him, and pulls the trigger.
Key term: oblique intention
Oblique intention is where it is not D’s aim or purpose to bring about
a prohibited result, but he foresees that result as virtually certain to
occur as a result of his actions. For example, Mark intends to kill Sam
by shooting her and Sam is standing behind a window. His direct
intent will be to kill Sam, but his oblique intent will be to break the
glass.
Mens rea 13
There is no statutory definition of intention, and its meaning has been
established in common law.
Direct intention
Motive and desire are irrelevant to the question of whether someone has
direct intent. We can establish whether it is your aim or purpose to bring
about a consequence without asking why you have acted in that way.
For example, you can desperately wish that someone does not have to
die, yet still intend to kill them.
Oblique intention
Oblique intention is not a different type of intention, it is merely a way
of finding intention. A direction on oblique intention will only be given in
cases where it is not the defendant’s aim or purpose to bring about the
prohibited result. Consider the following examples:
• Sam sets fire to a house as she has a grudge against the resident. Her
purpose is not to kill any of the residents, but a child dies in the fire.
• Mark throws his infant child towards his pram as he has lost his
temper. He intended for the child to land in his pram, but the child hits
the floor and dies.
The key test for oblique intent is that laid out by Lord Steyn in Woollin
[1999] 1 AC 82 and is detailed in Figure 1.3.
Objective
Question
• Was the consequence a virtual
certainty as a result of D’s conduct?
Subjective
Question
• Did D realise that the consequence
was a virtual certainty?
Figure 1.3: Test for oblique intention
Revision tip
Only foresight by D of a virtual certainty will suffice. Where the
result is seen as a possible, probable, or even highly probable
consequence, D may be reckless (see Subjective recklessness), but
14 General principles of criminal law
he does not intend to bring about that consequence. Pay close
attention to the wording of an MCQ to identify whether the result
was actually a virtual certainty or not.
Exam warning
Despite the fact there is an objective element, virtual certainty is,
overall, a subjective test. The jury must conclude that D foresaw the
prohibited consequence as a virtually certain result of his actions. Do
not allow an MCQ to trick you into thinking that D is not required to
foresee the result as being virtually certain (see Practice example 1.3).
Practice example 1.3
Barbara has planted a bomb in her local supermarket as they had
recently fired her son from his Saturday job. Her aim is to cause
the supermarket to lose revenue by forcing its closure. She calls in
a warning an hour before the bomb is timed to explode, but the
bomb explodes early, killing a police officer. Barbara is charged with
murder and the judge directs the jury that as it was virtually certain
the bomb would cause death or serious injury, they are bound to find
that Barbara had the necessary intention.
Has the judge correctly directed the jury?
The direction that must be given is that from Woollin (above) and
the judge has not given the jury that direction, nor has he made
clear that it is a decision for them to reach on the facts. As Barbara
called in a timely warning, it would be difficult to conclude that she
had the necessary intention as she anticipated that the shop would
be empty when the bomb exploded.
Exam warning
Importantly, foresight of a virtually certain result is not equivalent to
intention; such foresight is only evidence of an intention. This means
that the jury are not bound to find that D intended a result that was
virtually certain. An MCQ may suggest that foresight of a virtually
certain result means that the jury must find that D intended that
result. Do not allow yourself to be confused by this.
Subjective recklessness
Recklessness is concerned with unjustifiable risk-taking and is satisfied
where the jury can be sure of two things (see Figure 1.4).
Mens rea 15
Awareness of a risk
To amount to subjective recklessness, the risk must be seen by the
defendant; if he does not foresee the risk, he cannot be reckless. This is
the case even where that risk would have been evident to the reasonable
prudent person.
The defendant’s characteristics are taken into account in assessing
whether he had appreciated the risk. This will include his age, mental
state, the situation in which he finds himself and any other relevant
factors (see Practice example 1.4).
Practice example 1.4
A man suffering from schizophrenia is looking for somewhere warm
to sleep and settles in a haystack. As it is cold, he lights a fire in the
haystack. The fire spreads and causes substantial damage. He is
charged with arson (see Chapter 9). The trial judge directed the jury
that they could convict him of this offence (which requires D to have
intentionally or recklessly destroyed or damaged property), even if
he had not recognised there was a risk of damage or had closed his
mind to that risk.
Has the judge correctly directed the jury?
These are the facts of R v Stephenson [1979] QB 695. The Court of
Appeal quashed the conviction as the test should have been given
as a purely subjective one. D’s schizophrenia may have prevented
him from recognising the risk and, to be reckless, D must appreciate
the risk.
Subjective
Question
• Is D aware of the existence of a
risk?
Objective
Question
• Does D unreasonably take that
risk?
Figure 1.4: Subjective recklessness
16 General principles of criminal law
Exam warning
An MCQ may speak about the fact that D ‘should have’ or ‘ought to
have’ known of the existence of a risk. This is an incorrect statement
of law; you should be focusing your attention on words that import a
subjective test (eg where D ‘knew’ or ‘knows’). Pay close attention to
wording like this.
Unjustifiable taking of the risk
The risk the defendant is taking must be an unjustifiable risk. It must be
unreasonable to run the risk of the harmful consequence.
Whether a risk is unjustifiable is an objective question. Many everyday
activities we engage in involve a risk of damaging persons or property
(eg driving a car, hitting a hard cricket ball in a garden or walking a
dog). Whether a risk is unjustifiable is a question for the court and
they will take into account the social utility of the activity. For example,
overtaking someone at speed on a road may be unjustifiable if you are
rushing to meet a friend, but may be justifiable if you are driving your
spouse to hospital as they have been injured.
Negligence
Negligence is a failure by the defendant to act in conformity with an
objective standard. Unlike intention and recklessness, the focus is not
upon the defendant’s actual state of mind at the time the actus reus
is satisfied. The factfinders will instead be directed to consider how
a reasonable person would have acted in those circumstances and
whether the defendant’s behaviour falls short of that objective standard.
Revision tip
For the purposes of SQE1, negligence is relevant only to the offence
of gross negligence manslaughter and is discussed in Chapter 5.
Summary: what do we know about mens rea?
What is intention? Intention can either be direct or oblique.
Direct intention is where it is your aim or
purpose to bring about the prohibited
consequence. Oblique intention is where
the result is a virtually certain one and D
foresees that result as virtually certain.
Coincidence of actus reus and mens rea 17
What is recklessness?
What is negligence?
Recklessness is seeing a risk and going on
to take it. It must be an unjustifiable risk
and the focus is on whether D saw that
risk. As a subjective test, D’s characteristics
must be taken into account in deciding
whether they saw that risk.
Here we are concerned with the conduct
of the accused and whether it fails to meet
the standards of the reasonable person.
COINCIDENCE OF ACTUS REUS AND MENS REA
For the defendant to be liable, the prosecution must establish that the
relevant actus reus and mens rea elements of the offence coincide. For
example, Mark hates Sam and wishes she was dead. He has devised a plan
to kill her but, before he gets a chance to execute his plan, he accidently
runs Sam over with his car. Sam had stepped out in front of the car and
Mark had not seen her. Mark may have intended to kill, but that mens rea
element did not coincide with the prohibited consequence. Therefore,
there can be no liability for homicide. Mark’s guilty thoughts will not
make him liable in this situation due to the lack of contemporaneity.
There are situations where it is in the interests of justice to find that
the defendant has the actus reus and mens rea for the offence alleged
even though these elements do not exist at precisely the same moment.
These are set out in Table 1.3 (overleaf).
TRANSFERRED MALICE
Where the defendant fulfils the actus reus of an offence, for example,
Mark intends to kill Sam by shooting her, but Mark misses and shoots
Adam, we can still find liability for murder through the doctrine of
transferred malice. Here the mens rea (an intention to kill) is transferred
from Sam to create liability for the killing of Adam.
Key term: transferred malice
Transferred malice is a legal doctrine that allows for a transfer of
mens rea when an offence targeted at a particular individual or piece
of property results in injury/damage to a different person or piece of
property.
18 General principles of criminal law
There are two limitations to the doctrine of transferred malice:
• The defendant’s mens rea can only be transferred when it is for the
same offence. If Mark had shot at Sam and missed, but his bullet had
broken a window, the mens rea could not be transferred to criminal
damage.
• There can be no double or general transfer of mens rea. Where a man
stabs a woman intending to kill her, but also injures a foetus she is
Table 1.3: Contemporaneity in criminal law
Principle Explanation and examples
Continuing act Where the actus reus can be satisfied by a
continuing act it is sufficient that D has the
mens rea at some point while that act is
continuing.
For example, in Fagan v Metropolitan Police
Commissioner [1969] 1 QB 439, D drove on to a
police officer’s foot accidently. When the officer
told him to move the car, he refused. It was held
that he was liable for a battery (see Chapter 6).
Although D did not initially have mens rea when
he applied force, he did when he failed to move
the car.
A series of acts An offence may be committed through a series
of acts and D may not have the prescribed mens
rea when committing each act. Where this is the
case, it is sufficient that D has the mens rea at
some point during that series of acts.
For example, in Thabo Meli v R [1954] 1 All ER
373, V was struck numerous times by several
men who intended to kill him. When they
thought he was dead, his body was rolled over a
cliff edge to make his death appear accidental.
In fact, he was not dead and later died from
exposure. The men had the mens rea for murder
at the time of the beating, but the actus reus
was not complete (the killing). When they rolled
his body off the cliff this had resulted in his
death, but they did not intend to kill as they
thought he was already dead.
Please note this must be a series of acts/events –
not a series of unconnected events.
Strict liability 19
carrying, who is later born alive but then dies from their injuries, the
mens rea for murder cannot be transferred.
STRICT LIABILITY
There are some offences for which the prosecution is not required to
prove mens rea for one or more elements of the actus reus. These include
driving offences such as speeding and driving without insurance. Where
no mens rea is required at all, the offence is termed one of ‘absolute
liability’ – these are usually less serious regulatory offences.
There is a presumption in criminal law that mens rea is always required.
Consequently, if the mens rea is not stated, the court may read (ie
infer) a required state of mind into the offence. The wording may make
it entirely clear that the offence is one of strict liability. If it does not,
consider:
• Where the offence seeks to promote public safety (eg driving and
environmental offences), it is more likely to be one of strict liability.
• If the offence targets a group of people obliged to act carefully in
order to protect the public from harms arising from tainted food, the
sale of drugs and alcohol or are those engaged in industrial activities
that pose a danger, then the courts are more likely to find an offence
is one of strict liability.
• If the offence will have the effect of encouraging compliance with the
law (eg selling lottery tickets to underage persons), it is more likely to
be a strict liability offence.
KEY POINT CHECKLIST
This chapter has covered the following key knowledge points. You can
use these to structure your revision, ensuring you recall the key details
for each point, as covered in this chapter.
• Actus reus and mens rea are the building blocks of criminal liability.
Both must be proven to the criminal standard for the defendant to be
criminally liable.
• Offences can be committed by a failure to act but only where they
are capable of being committed by omission and D is under a duty
to act.
• For result offences, the defendant must have caused the prohibited
result. There are two tests for causation (the factual and the legal test)
and both must be satisfied for liability to attach.
20 General principles of criminal law
• The requisite mens rea must be satisfied for the elements of the actus
reus, and the actus reus and mens rea must coincide.
• Intention may be either direct or oblique. Direct intention is where it
is the defendant’s aim or purpose to bring about the result. Intention
may alternatively be found through a direction asking whether
the consequence was a virtually certain one and the defendant
appreciated such.
• Recklessness is subjective and is where the defendant takes an
unjustifiable risk and is aware of that risk.
• Negligence is objective and looks to whether the defendant’s conduct
falls short of the standard expected by the reasonable person.
• Offences may be strict liability, requiring no mens rea for one or more
elements of the actus reus.
KEY TERMS AND CONCEPTS
• actus reus (page 3)
• mens rea (page 3)
• causation (page 3)
• direct intention (page 12)
• oblique intention (page 12)
• transferred malice (page 17)
SQE1-STYLE QUESTIONS
QUESTION 1
A man stabs a love rival in the stomach and the victim is taken to
the hospital. At the hospital, the victim is given antibiotics to prevent
infection. Unbeknown to the medical staff, he is allergic to the antibiotics
and he swiftly dies. The man is charged with murder.
Has the medical treatment broken the chain of causation?
A. Yes, the medical team have acted negligently, and this breaks the
chain of causation.
B. Yes, the treatment was palpably wrong, and this broke the chain of
causation.
C. No, the chain of causation has actually been broken by the
unanticipated vulnerability of the victim.
SQE1-style questions 21
D. No, you must take your victim as you find them, and this includes
undiagnosed conditions.
E. Yes, this was a voluntary act by the medical staff that breaks the
chain of causation.
QUESTION 2
A man is playing with a shotgun that he has discovered at his friend’s
farmhouse. That evening, the man and his friend get into an argument
and he points the gun at his friend’s legs, telling him, ‘If you don’t shut
up, I’ll blow off your kneecaps.’ The argument continues and the man
points the gun near his friend and pulls the trigger. The bullet enters
his chest and the friend dies immediately. The man says he was simply
trying to scare his friend into shutting up. The man is charged with
murder and the judge directs the jury that if death or serious injury was
a highly probable result of the man’s actions, and he appreciated such,
then the jury can find he had the necessary intent.
Is the judge’s direction correct?
A. Yes, as the direction has been given as an evidential one.
B. Yes, as the jury have been asked to consider whether they thought
the result highly probable and then whether the man thought it
highly probable.
C. No, the judge should have given the direction as a legal test,
that if the jury found the result was highly probable and the man
appreciated this that they must find intent.
D. No, the judge has used incorrect terminology. The direction should
have been given in terms of virtual certainty.
E. No, the judge has used incorrect terminology. The direction should
have been given in terms of virtual certainty and as a legal test.
QUESTION 3
A woman works as a community nurse and one of her clients is an
elderly lady. One afternoon, the woman goes on a scheduled visit to her
elderly client’s house but gets to the house an hour later than arranged.
When no one answers the door, she peers through the window and sees
her client laying on the kitchen floor. She decides not to do anything as
calling the authorities would alert her employers to the fact that she was
late. It is later established that her client had fallen and had died later
that day of an embolism.
22 General principles of criminal law
Was the woman under a duty to act?
A. Yes, all persons are under a duty to act to prevent harm from
occurring to others.
B. No, as the woman had not created a dangerous situation, she was
not under a duty to act.
C. Yes, as the visiting community nurse, the woman had an obligation to
discharge her contractual duty.
D. Yes, by virtue of their close relationship, the woman was under a
duty to act.
E. No, only immediate relatives are under a duty to act.
QUESTION 4
A woman has a grudge against a co-worker who she is sure has been
stealing her lunch from the office fridge. One afternoon she sees her coworker sitting at his desk eating a yogurt that she had just discovered
was missing. Losing her temper, she threw down the stapler she was
holding. It bounced off her desk and hit her supervisor in the leg. The
woman has been charged with battery. It was accepted she did not
intend to apply force to her supervisor, but she is convicted of battery
as the magistrates concluded a reasonable person would have seen a
risk of force being applied and it does not matter that the woman may
not have done.
Did the magistrates approach recklessness correctly?
A. Yes, it would have been obvious to the reasonable person that there
was a risk of the stapler hitting someone.
B. No, this was a justifiable risk.
C. Yes, the woman chose to take that risk and the magistrates need
only consider whether a reasonable person would also see the risk.
D. No, the focus should be on whether the woman saw a risk of the
prohibited result and went on to take that risk.
E. Yes, recklessness can be approached via an objective or a subjective
test.
QUESTION 5
A man is involved in a fight with a woman outside a public house. The
man throws a large stone in the direction of the woman, intending
Answers to questions 23
that the stone will strike the woman. The stone misses the woman and
smashes a large window. The man did not intend or foresee the risk that
the stone would damage the window. The man is charged with criminal
damage of the window.
Is the man guilty of criminal damage?
A. No, the man cannot be liable on the basis that he lacked intention
or recklessness as to criminal damage and his intention to strike the
woman cannot be transferred to the window.
B. No, the man cannot be liable as the concept of transferred malice
only applies to offences against the person.
C. Yes, the man can be liable on the basis that his intention to strike the
woman can be transferred to the window, despite the fact that he
did not intend nor was he reckless as to damaging the window.
D. Yes, the man can be liable on the basis that the reasonable person
would have foreseen the risk that the window would be damaged as
a result of the throwing of the stone.
E. Yes, the man can be liable on the basis that breaking the window
was a virtually certain result of his conduct and the reasonable man
would have appreciated the result as being a virtual certainty.
ANSWERS TO QUESTIONS
Answers to ‘What do you know already?’ questions at the start of the
chapter
1) The actus reus of an offence generally refers to the external
elements of an offence, those that do not relate to the state of mind
of the defendant (or any objective fault requirement).
2) Yes, but the alleged offence must be one capable of being
committed by omission and the defendant must be under a duty
to act.
3) False. It may break the chain of causation but only when it is an
independent and voluntary act by the third party (and palpably bad
in the case of medical treatment) or it is an act of the victim that is
unreasonable in the circumstances.
4) The jury must be directed in line with the Woollin direction and be
asked whether death or serious injury is a virtually certain result of
the defendant’s actions and whether the defendant realised such.
24 General principles of criminal law
Answers to end-of-chapter SQE1-style questions
Question 1:
The correct answer was D. Though medical treatment can break the
chain of causation it must be palpably wrong (not merely negligent,
so option A is wrong) and be an independent cause of death. Here
the victim had an undiagnosed vulnerability and the principle is that
you must take your victim as you find them (therefore option C is
incorrect). Option B is incorrect as, though the medical treatment may
be classified as palpably wrong, the option ignores the application
of the thin skull rule. Option E is wrong as a voluntary act is not
sufficient for medical negligence to break the chain of causation.
Question 2:
The correct answer was D. The direction should have been given
in terms of virtual certainty and as an evidential test. Option A is
wrong because, while the test is an evidential one, the reference
to ‘highly probable’ is wrong. Terms such as ‘highly probable’ or
‘possible’ indicate recklessness, not intention, and should not be used
in directing a jury (hence options B and C are incorrect). Although
there has been some debate about whether the direction is legal or
evidential, it is generally accepted as an evidential test allowing juries
to ‘find’ intention, therefore option E is incorrect.
Question 3:
The correct answer was C. We are not all placed under a duty to
act (option A is therefore incorrect), but by virtue of her position as
a community nurse and, specifically, as the nurse to this particular
client, she was under a duty to act. Option B is wrong as it supposes
that the creation of a dangerous situation is the only circumstances
in which the woman could be liable. Option D is incorrect as a mere
close relationship is not normally sufficient to impose a duty to act.
Option E also is wrong because it, much like option B, ignores the
other ways in which a duty to act may arise.
Question 4:
The correct answer was D. Recklessness is the taking of an
unjustifiable risk and that is an objective question, but that is not the
crux of subjective recklessness (so options A, B and C are incorrect).
The magistrates should have considered whether the woman actually
saw the risk. There is no discretion here (so option E is incorrect), it
must be approached in terms of subjectivity.
Question 5:
The correct answer was A. This was because the man’s malice
against the woman cannot be transferred to the window (therefore
Key cases, rules, statutes and instruments 25
option C is incorrect). Options D and E are incorrect as they suggest
the test for both recklessness and virtual certainty is an objective
one, asking what the reasonable man would have foreseen. Option
B is incorrect as transferred malice is a general principle and is not
restricted to offences against the person.
KEY CASES, RULES, STATUTES AND INSTRUMENTS
The SQE1 Assessment Specification does not require you to know
any case names, or statutory materials, for the topic of actus reus and
mens rea.

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