What is the difference between civil and criminal law
The same action can be both a civil wrong (often a tort) and a criminal offence.
Crime is seen as a public wrong (in the example above, the public interest lies in the prevention of such actions), whereas a civil wrong is a private matter to be resolved between the parties.
To what standard do crimes need to be proved?
‘beyond reasonable doubt’
Criminal liability =
Actus reus + Mens rea + Absence of a valid defence
Types of Actus reus
Conduct offences: In some cases, offences will only require certain acts to have been committed by the defendant to satisfy the actus reus.
Result offences: The actus reus of result crimes requires more than just the defendant’s action. Here, the action must lead to a specified consequence. In such cases, it must be proved that the action actually caused the result.
Offences with surrounding circumstances: The actus reus can also include the need for some particular surrounding circumstance. Under s 1(1) Theft Act 1968, the actus reus of theft is defined as the appropriation of property ‘belonging to another’. The surrounding circumstance the prosecution must prove is that the property belonged to someone other than the thief.
Omissions: A defendant can be held to have committed the actus reus of an offence despite taking no action at all. Although the general rule that there is no liability for failure to act, the criminal law will, in certain circumstances, impose a legal obligation to act which if breached could result in criminal liability.
Actus reus: Causation - result crimes
Result crimes require that the defendant’s conduct cause a particular result. Result crimes include murder, manslaughter, criminal damage, and assault occasioning actual bodily harm. Causation is part of the actus reus of these types of offences.
two aspects to causation
There are two aspects to causation, both of which must be proved by the prosecution:
* Factual causation: The jury must be satisfied that the acts or omissions of the accused were in fact the cause of the relevant consequence.
* Legal causation: It must be established that the acts or omissions of the accused were a legal cause of that consequence.
Factual causation: the but for test
Factually, it must be proved that ‘but for’ the acts or omissions of the accused, the relevant consequence would not have occurred in the way that it did (R v White [1910] 2 KB 124).
In other words, if you eliminate the act of the defendant would the prohibited harm have occurred anyway?
Legal causation test
The law will step in to prevent a person from being responsible for all acts that arise from their actions.
The key legal causation principles are:
* The defendant’s act must be the ‘substantial’ cause of the prohibited harm (R v Hughes).
* The consequence must be caused by the defendant’s culpable act (R v Dalloway).
* The defendant’s act need not be the only cause of the prohibited consequence (R v Benge).
Legal causation: Intervening acts
A novus actus interveniens is a subsequent event or act of either the victim or a third party which renders the defendant’s part in the consequence very small, breaking the chain of causation and meaning that the defendant is not criminally liable.
Legal causation: intervening acts - three types to consider
‘Fright and flight’:
When under attack or the threat of attack from the defendant, it is plausible to consider that the victim may attempt to escape from the attack or threat. However, it has been necessary for the law to consider when such escape attempts can amount to a novus actus interveniens. The issue falls around the question as to whether the escape was foreseeable by the reasonable person. If it is not, then the defendant is entitled to an acquittal and is no longer deemed to be the legal cause of the prohibited result.
Refusing medical treatment:
The courts have also considered what the position would be where the victim refuses medical treatment, which results in their death. Three key cases: R v Blaue, R v Holland, R v Dear
Suicide:
The victim’s suicide may not break the chain of causation if:
- V nonetheless dies from the original wound (R v Dear); or
- The act was reasonably foreseeable eg where the defendant causes a brilliant pianist to lose her fingers, or a keen sportsman to be paralysed (applying the rule in R v Roberts and R v Williams and Davies); or
- The D’s unlawful act was a significant and operating cause of death and at the time of the attack it was reasonably foreseeable that the victim would die by suicide as a result of V’s injuries (R v Wallace).
- The victim’s suicide may break the chain of causation if:
- The injuries inflicted by the defendant have healed, but the victim goes on to die by suicide (distinguishing R v Dear); or
- It was a voluntary and informed decision of the victim to act (R v Kennedy). In this case, Kennedy supplied a dose of heroin in a syringe, which he handed to the victim, who injected himself, and almost immediately suffered an adverse reaction. The victim later died of the consequences of intoxication by opiates and alcohol. The House of Lords decided that a person who supplies a drug to another has not caused that drug to be administered when the other injects it.
Natural events:
- Natural events will only break the chain of causation if they are ‘extraordinary’ and not reasonably foreseeable.
- For example, if D knocks V unconscious and leaves V on the beach then V is drowned by the incoming tide, D has legally caused V’s death. The natural event of the tide coming in is reasonably foreseeable.
thin skull rule
The ‘thin skull’ rule provides that a person who inflicts harm on another cannot escape liability if the victim, owing to some pre-existing infirmity or peculiarity, suffers greater harm than would have been expected as a result of what the accused has done. Put simply, the defendant must take the victim as they find them.
Result crimes =
Factual causation + Legal causation
Omissions - the general rule
The general rule is that a defendant cannot be criminally liable for a failure to act, as there is no general duty to act to prevent harm
BUT
In order to secure a conviction based upon a failure to act, the prosecution must prove that:
(a) The crime is one which is capable of being committed by an omission. Some offences can only be committed by an act, eg unlawful act manslaughter (R v Lowe);
(b) The accused was under a legal duty to act;
(c) The accused breached that duty;
(d) The breach caused the actus reus of the offence to occur; and
(e) Should the offence so require, that the accused had the required mens rea.
Situations where a duty to act may arise
Statutory duty - Under statutes, innumerable offences can be committed by an omission
Special relationship - e.g. Doctors and patients, Parents and their children, Spouses
Voluntary assumption of a duty of care - A person is not generally under a duty to care for another in distress. However, if a person voluntarily assumes a duty towards another, the law will hold that person liable if they fail to carry out that duty.
A breach of a contractual duty
Defendant creates a dangerous situation - e.g. if you start a fire in the house you should take reasonable steps to put it out
Public office holders
Omissions and causation
- The relationship between omissions and causation in this context means that if the defendant had acted, D could have made a causal difference.
- The defendant cannot cause by omission.
- The defendant can fail to uncause when D has a duty to uncause, but this is different to causing.
mens rea meaning
‘Mens rea’ means ‘guilty mind’. Most offences require that the defendant not only commits the act, but also in some way has a ‘guilty mind’.
The state of mind that the prosecution must prove to secure a conviction will vary from crime to crime.
Intention
There are two types of intention:
* Direct intention: The aim or purpose of the defendant’s act (R v Moloney); and
* Indirect/oblique intention: Used in rare cases where the defendant does something manifestly dangerous and someone dies or is seriously injured but that was not the primary aim of the defendant
Recklessness
Recklessness occurs when somebody takes an unjustifiable risk, aware of the danger that the prohibited harm may occur upon taking that risk.
More often, the defendant can be convicted, either if D intended the result, or if D was reckless as to whether the result should occur. This is a position, for example, with the offence of criminal damage.
Some offences use other words when defining the mens rea needed such as the word ‘maliciously’. This has been held to allow for the actus reus to be committed intentionally or in the alternative, recklessly such as s 20 Offences Against the Person Act 1861.
Knowledge and belief
Under s 22 Theft Act 1968, a person is guilty of handling stolen goods if, ‘knowing or believing them to be stolen’, that person receives the goods.
These words have been held to allow for the defendant who is absolutely certain as to the existence of a particular circumstance, or is at least possibly aware that the particular circumstance exists.
Dishonesty
In common with most offences under the Theft Act 1968, the defendant must also be found to have been dishonest when handling the goods. This word is not actually defined in the Act.
However, the Supreme Court considered this requirement in the case of Ivey v Genting Casinos [2017] UKSC 67, and a workable test was set out.
Negligence
Negligence is when the defendant’s actions fall below the standard of a reasonable person. Although negligence is of great importance in civil law, it does not feature prominently in the criminal law. There are a number of statutory offences in which negligence is the basis of liability, and perhaps the best known of these is careless driving. Some criminal law offences have negligence as an element of mens rea, gross negligence manslaughter for example. Here, the negligence must be gross.
The test for oblique intent
If a defendant’s purpose in acting is not to produce the actus reus of the crime with which D has been charged and intention is the only type of mens rea available, D may still be found to have an intention to commit that actus reus if D has oblique intent.
Much of the law in this area has concentrated on what is required for the jury to find indirect intent but R v Woollin contains the current model direct to be given to the jury.
Oblique intent is only to be used in rare circumstances when the facts require it and when intention is the only form of mens rea for the offence eg murder, causing GBH with intent contrary to s 18 Offences Against the Person Act 1861.
This means that if the rules of the offence allows mens rea in the form of intention or recklessness then you must not refer to oblique intent. For example, if a defendant is charged with criminal damage and D does not directly intend to destroy/damage property, then you must consider whether D was reckless.
Motive and intention
What the law is very clear about is that intention should not be confused with motive or desire.
While the defendant may have a motive (for instance, a reason to kill), that does not mean when
D commits the actus reus D can automatically be taken to have the intention to kill.
However, while a motive is not the same as intention, an individual can be taken to intend both their ends and the means through which they will achieve them.
Recklessness
Recklessness is when a person does not intend to cause a harmful result but sees a risk of harm and goes ahead anyway. In order to be criminally liable for reckless behaviour, the risk taking must be unjustifiable. If risk taking is justifiable, there is social utility or value to the activity, against the likelihood and the amount of harm that might happen.
