Criminal Law Notes PDF

**Question 1** What is the general rule on liability for omissions in the criminal law - The general rule on liability for omissions is that there is no criminal liability for failing to act and no general obligation to intervene and help **Question 2** Name a statutory offence that ma...

**Question 1** What is the general rule on liability for omissions in the criminal law - The general rule on liability for omissions is that there is no criminal liability for failing to act and no general obligation to intervene and help **Question 2** Name a statutory offence that may be committed by omissions - Statutory obligation to act - Contractual obligation to act **Question 3** The prosecution argue that Kwame has completed the actus reus because he falls into one of the well-established common law exceptions to the general rule on omissions. Consider each of these in turn and discuss (briefly) whether they apply to Kwame's situation. a\) Contractual duty b\) Voluntary assumption of responsibility for another c\) Special relationship d\) Duty to avert a danger created. **Question 4** Is the prosecution likely to succeed in establishing liability and, if so, what is the most relevant exception on the given facts? - The general rule may not apply to Kwame as Martha and him are cohabitating and therefore there may be a special relationship with one another. However, there may also be a contractual duty as he is a paramedic and failed to act when someone was in need and therefore breached his contractual duties however it depends how far the contract reaches and can it be established in their own home - In conclusion, I do not believe that the prosecution would be able to succeed on establishing liability as Kwame does not fit within any of the exemptions **[Answers:]** **Question 1** To convict for murder, the prosecution must prove that Kwame, a paramedic, brought about Martha's death by ignoring her as she choked to death on a chicken bone. However, the general rule on omissions is that a person cannot be criminally liable for a failure to act. **Question 2** There are a number of statutory offences where the actus reus is specifically defined as an omission and one such example is failing to provide a police officer with a specimen of breath when asked to do so. You may have legitimately referred to others. **Question 3** There are common law exceptions to the general rule on omissions where the law imposes a duty to act; and the defendant is guilty of an offence if they fail to do so. You were asked to consider these in turn and discuss (briefly) whether they apply to Kwame's situation. Contractual duty: Although Kwame is a paramedic, he is off duty at the time of Martha's death so would not be subject to his contract of employment. The answer would be different if the incident had happened while he was at work.  Voluntary assumption of responsibility for another: This is a weak argument as there is nothing to suggest that Martha needs his care or that Kwame has accepted this. Special relationship: Although the strongest argument, it is unclear whether this applies as Kwame and Martha are not married where a special relationship is established. The question is whether Kwame had a duty to act because he has a special and close relationship to Martha as she is his 'long-term girlfriend' and they are cohabiting - thus living as 'man and wife'. However, there is no direct authority on this point. Duty to avert a danger created: This does not apply as Kwame did not cause Martha to choke on the chicken bone. If he had done so, he would have been under a duty to take reasonable steps to avoid Martha's death by helping her in some way, perhaps by calling an ambulance. **Question 4** It is unlikely that the prosecution could prove the actus reus of murder in these circumstances, even though Kwame may be morally culpable for Martha's death. However, if they were to succeed, special relationship is the most relevant, although there is no definitive answer. **Prepare Task 2** 1. Top of Form **Question 1** **1 Point** In this next scenario, you are required to apply your knowledge of the law of omissions and analyse whether the defendant is liable for the victim's death.  **[Lyra McKenzie]** Lyra is charged with the murder of her flatmate, Bonnie. Lyra was smoking late one night whilst sitting in an armchair in the shared living room. She noticed that the armchair was smouldering but did nothing as she realised she had run out of alcohol and, being an alcoholic, was desperate to buy a bottle of vodka from the local shop before it closed. Bonnie subsequently died of smoke inhalation. Complete the summary set out below by adding in the missing word(s). ** ** To convict Lyra for Bonnie's death, the **Blank 1** must show Lyra completed the actus reus. Although there is no general duty to **Blank 2**, Lyra is likely to be held liable for her **Blank 3** to do so in these circumstances. The reason is that Lyra has created a **Blank 4** situation as she started a **Blank 5** which is likely to spread. Also, this occurred in the **Blank 6** which she shares with Bonnie. Lyra is **Blank 7** of the fire as the facts state that she **Blank 8** and so is under a duty to take **Blank 9** steps to neutralise that danger. She must either attempt to put out the fire, if reasonable, or at the very least **Blank 10**. Instead, Lyra simply left the flat and went out to buy **Blank 11**. Lyra is likely to be found criminally liable for her **Blank 12**. - Prosecution - act - failure - dangerous - fire - living room - aware - noticed the armchair was smouldering - reasonable - call the fire service - alcohol - omission Bottom of Form To convict Lyra for Bonnie's death, the **prosecution** must show Lyra completed the actus reus. Although there is no general duty to **act**, Lyra is likely to be held liable for her **failure** to do so in these circumstances.   The reason is that Lyra has created a **dangerous** situation as she started a **fire** which is likely to spread. Also, this occurred in the **living room** which she shares with Bonnie. Lyra is **aware** of the fire as the facts state that she '**noticed the armchair was smouldering**' and so is under a duty to take **reasonable** steps to neutralise that danger. She must either attempt to put out the fire, if reasonable, or at the very least **call the fire service**. Instead Lyra simply left the flat and went out to buy **alcohol**.   Lyra is likely to be found criminally liable for her **omission**. **Prepare Task 3** Top of Form **Instructions** You are a trainee solicitor at Shah and Partners, a firm of solicitors who specialise in criminal defence work. Shah and Partners are instructed to represent Lyra who is being prosecuted for murder.   **Read the email (below) and prepare a written analysis as directed by your supervisor.** ** ** Dear trainee   You will recall that we discussed Lyra's case last week in relation to her liability for failing to act. Having considered this carefully, the defence team have conceded that Lyra was under a duty to act in these circumstances. However, we have now received more information from the prosecution and I want you to analyse whether legal causation is established. In particular, has the chain of causation been broken between Lyra's omission to act and Bonnie's death due to the poor medical treatment which Bonnie received?   **Lyra McKenzie: Case Notes** *Lyra is charged with the murder of her flatmate, Bonnie. Lyra was smoking late one night whilst sitting in an armchair in the shared living room. She noticed that the armchair was smouldering but did nothing as she realised she had run out of alcohol and, being an alcoholic, was desperate to buy a bottle of vodka from the local shop before it closed.* \* * *Bonnie, who suffered from emphysema (a long-term lung disease) awoke while Lyra was out to find the flat ablaze and managed to dial 999. Bonnie was rescued by the fire service and taken by ambulance to the Accident and Emergency Department (A&E) at the local hospital suffering from severe respiratory problems arising from smoke inhalation and exacerbated by her medical condition.* \* * *At A&E, Bonnie was seen by Dr Wong, a very inexperienced doctor who had only been working in the department for two days. Dr Wong assessed Bonnie incorrectly as not requiring urgent attention and left her on a table in the A&E waiting room to attend to more urgent patients. When Dr Wong returned three hours later, Bonnie was dead.*   When completing your report, use a clear structure and ensure that you refer to the facts of Lyra's case to support your conclusions.   Supervisor **Structure of the Task** The aim of this task is to ensure that you understand actus reus, but also to practise your ability to analyse. This is an important skill to develop if you are to attain a high grade on this course and you will have plenty of opportunities to do so. Adopting a structured approach is key and you should check your answer against the automated feedback to ensure that you have done so. 1. Define factual causation and state how this applies to Lyra's case. 2. Define legal causation. Analyse each of the required elements in turn using the flowchart (above) to assist you and relate them to Lyra. 3. Conclude whether you believe the prosecution will be able to establish causation. Factual causation can be defined as a situation in which the defendant is not responsible for the cause of an event such as death if the situation would have occurred exactly the same even without the defendant's act or omission. In order to determine whether the principle of factual causation can be applied is whether as a matter of fact, the defendant caused the victims death. In order to conclude this, the 'But for' test is applied in which one will ask themselves, 'but for the defendants conduct, would the victim's death have occurred in the same way that it did'. Answering yes or no will determine whether that is factual causation. This can apply to Lyra's case however; it will not assist in this situation. The 'but for' test would be satisfised as if Lyra had not caused the fire, Bonnie would not have had to go to A & E and therefore she would not have died. However, there is an additional part of the principle of factual causation in which the defendants act or omission must be 'a substantial and operating cause of the consequence' which is referred to as legal causation. There are separate legal rules that combine under legal causation which have an impact on the final outcome. One of the rules is that the consequence, in this case the death of Bonnie, must be attributable to a culpable act or omission. Ultimately, this means that the Lyra as the defendant will establish legal causation only if the result (aka death in this case) was a consequence of their actions. Again, this rule is satisfied as Lyra's actions of smoking and setting light to the armchair, noticing the smouldering chair and then leaving without taking reasonable steps to mitigate the dangers. Another rule is that the culpable act must be more than minimal cause of the consequence. In this situation, it must be proved that Lyra's conduct was the 'operating and substantial cause' of that result. It can be seen in that the conduct by Lyra was substantial on Bonnie's health and ultimately the operating cause of Bonnies death. It is also a rule that the culpable act does not need to be the sole cause. This could refer to another defendant contributing to the victims death. In this case, it could be argued that Dr. Wong also contributed to the death of Bonnie, however this does not mean that Lyra's culpability is diminished and she could still be found guilty Another important rule is 'taking the victim as the defendant finds them' this refers to the possibility of the victim having a physical or mental state that contributes to their death. This physical or mental state does not diminish the omission of the defendant. Bonnie had a long-term lung disease which may have attributed to the severity of the smoke inhalation. However, again, this does not dimmish Lyra's culpability as the law states that Lyra as the defendant is still responsible for the consequences of her actions even if they were unforeseeable. In this case, it may not have been known to Lyra that Bonnie had a long-term lung problem which caused the severity of the smoke inhalation, however this does not diminish Lyra's responsibility in Bonnies death. Unknown if we talk about the chain of causation must not be broken In conclusion, Lyra is responsible for bonnies death as it she has satisfied factual causation as the 'but for' test was satisfied. If Lyra did not cause the fire to start and she took reasonable measures to act and prevent the harm from the dangerous situation, Bonnie would not have had severe smoke inhalation and ultimately would not have died. All other legal causations have been satisfised which in turn, Lyra has factually and legal caused the result and therefore is criminally liable, To convict for murder, the prosecution must prove the actus reus of the offence and show that Lyra brought about Bonnie's death. 1. **Factual causation** To establish factual causation, the prosecution must prove that 'but for' Lyra setting fire to the armchair, Bonnie would not have died as and when she did -- *R v* *White*. This is clear on the facts as Bonnie died of 'severe respiratory problems caused by smoke inhalation'. 2. **Legal causation** The prosecution will argue that legal causation is established for the following reasons: a. The consequence (Bonnie's death) must be due to a culpable act which includes a failure to act where the defendant is under a duty -- *R v Dalloway*. - Lyra is under a duty to act because she created the dangerous situation (the fire) but failed to take reasonable steps to neutralise the danger -- *R v Miller*. - Her omission was in failing to put out the fire or to call for help. b. The culpable act must be a more than minimal cause of the consequence -- *R v Pagett*. - Bonnie's smoke inhalation caused by Lyra's omission is clearly more than a minimal cause of her death. c. The culpable act need not be the sole cause -- *R v Benge*: - More than one person may be liable for homicide. - In this case Dr Wong may also be liable (for gross negligence manslaughter) but this does not mean that Lyra will avoid liability. d. Lyra must take her victim as she finds her (the eggshell skull principle). - This principle applies to pre-existing medical conditions -- *R v Hayward/R v Blaue*. - Bonnie's emphysema will not break the chain of causation, even if most victims would not have died resulting from such smoke inhalation. 1. e. The chain of causation must not be broken: the issue here is the negligent medical treatment which was one of the causes of Bonnie's death. However, this will only break the chain of causation in the most extraordinary and unusual cases. It will not do so unless: - the negligent treatment is so independent of the accused's actions (here it follows on -- Bonnie was taken to A&E, misdiagnosed there by Dr Wong who was inexperienced and had only been working in the department for two days and treated too late); - and so potent in causing death (Bonnie died of the smoke inhalation caused by the fire); - that in the jury's view it makes the contribution made by the accused's acts insignificant (the primary cause of death was still the smoke and not the medical negligence). 3. **The prosecution argument is likely to succeed.** **[Prepare take 4- ]** In the Engage section of this workshop, you will take part in a discussion on whether you consider there should be criminal liability for omissions. In particular, you will analyse whether you believe the law is satisfactory in relation to medical treatment for terminally ill patients, where a distinction is drawn between an 'act' (which may give rise to liability for murder) and an omission (which generally cannot). To enable you to contribute effectively: 1. Read Chapter 2.4 in Smith, Hogan & Ormerod's \'Criminal Law\'. Pay particular attention to paragraph 2.4.2.4 and make notes as you see fit. 2. Read and make notes as required on the article, 'Euthanasia and death with dignity: still poised on the fulcrum of homicide' by Hazel Biggs, which you will find at Crim. L.R. 1996, Dec, 878-888. Your reading will enable you to critically evaluate the current law in relation to these issues.  **You will review the contents of this task in Engage Task 3 where you will analyse the following question:** Using your reading from the Criminal Law Textbook, other textbooks (specifically Smith, Hogan and Ormerod) and the article by Hazel Biggs:  **Critically evaluate the current position of the law in relation to criminal liability for omissions to act. Do you consider that the current law poses particular difficulties for the treatment of terminally ill patients?** Your answers should be clear and structured and to assist you in achieving this, you will use the following headings for your discussion. 1. The general rule and exceptions. 2. Arguments against the law imposing liability for omissions. 3. Arguments for the law imposing liability for omissions. 4. Evaluation as to whether the current law in relation to the treatment of terminally ill patients is satisfactory. It is important that your answer contains references to the legal textbooks and articles that you were asked to read, rather than being a purely descriptive answer. This will enable you to demonstrate the critical evaluation skills and knowledge of current research and scholarship which is an essential requirement to attain a good grade on this module. 1. The general rule and exceptions. 1. The general rule of omission states that there is no general obligation to intervene and act if someone is in trouble -criminal law text pg 12 2. There are several exceptions to this rule which include: 1. special relationships (R v Giobbins and Proctor 1918), 2. voluntary assumption of care (R v Stone and Dobinson 1977), 3. cross over between special relationship and voluntary assumption (R v Ruffell 2003) (R v Smith 1979), 4. contractual duty to act (R v Pittwood 1902), 5. creation of a dangerous situation (R v Miller 1983), 6. voluntary acts (Hill v Baxter 1958), 7. factual causation (R v White 1910), 8. Legal Causation (R v Dalloway 1847 -- consequence must be attributable to a culpable act or omission) (R v White 1959 / R v Malcherek and Steel 1981 -- culpable act must be a more than minimal cause of the consequence) R v Benge 1865 / R v Pagett 1983 -- culpable act need not be the sole cause) (R v. Blaue 1975 / R v Watson 1989) (Suicide -- R v Wallace 2018) -- taking the victim as the defendant finds them), 9. Causation must not be broken 2. Arguments against the law imposing liability for omissions. 3. Arguments for the law imposing liability for omissions. - 4. Evaluation as to whether the current law in relation to the treatment of terminally ill patients is satisfactory. -- view on Bland Janey, aged 14 years, is sitting with her friend, Rosie, in a local authority park smoking a cigarette. Suddenly, Rosie says: "You'd better put that ciggie out quick as your mum's coming!" Janey looks up and sees her mother walking towards them. She panics and throws the cigarette into the long grass nearby to prevent her mother from seeing her smoking. Janey stands up and then leaves the park with her mother. Usually, the cigarette would have burnt itself out but, because it has been an exceptionally dry summer, the grass catches fire and quickly spreads. A nearby park bench is destroyed in the ensuing fire. Janey is charged with arson. The actus reus is to destroy or damage property belonging to another by fire. Janey has clearly damaged the park bench which belongs to the local authority. However, for the mens rea, the prosecution must establish that she intended or was reckless as to the damage by fire. **Can the prosecution prove the mens rea for arson? Justify your answers by reference to the law of mens rea and the evidence.** 1. **Did Janey intend the damage?** **2. Was Janey reckless as to the damage?** To determine whether Janey was reckless to the damage, recklessness in relation to mens rea needs to be defined. Recklessness is a subjective test that was seen in the leading case, R v G which states that the defendant must foresee that there is a risk and then the defendant takes the risk anyways and the risk must be unjustified. In this case, there is a potential that Janey would have foreseen that there is a potential of being a risk, it is known that it was a hot dry summer, and a lit cigarette would have the potential to start a blaze. Janey's actions were unjustified and she took the risk anyways, knowing the potential dangerous that could arise from a lit cigarette in long dry grass. However, an important note is that Janey is 14 years old. In the R v G case, they could not convict the 11/12 year old boys as they were unable to prove that they had recognised the risk as they were too young to perceive it. Due to the age of Janey, and the usual knowledge that a cigarette would burn out, I do not believe she acted reckless **[Feedback answers]** Did Janey intend the damage?\ There is no evidence that Janey intended to cause damage by fire. She was\ smoking a cigarette and only threw it onto the grass to avoid her mother\ catching her. Arson was not her aim or purpose, so direct intent does not\ apply.\ Furthermore, damage is not a virtual certainty of her actions. The facts state\ that usually the cigarette would have burnt itself out and the only reason the\ fire took hold was because the grass was so dry. Furthermore, Janey is only\ 14 years old and so it is unlikely she would appreciate this even if the\ prosecution could establish the first part of the test for indirect intent -- R v\ Woollin \[1999\]. 2\. Was Janey reckless as to the damage? Mens rea may also be established by proving that Janey acted recklessly.\ This is a subjective test (R v G \[2003\]) and the court must be satisfied that\ this particular defendant foresaw a risk which, in the circumstances known\ to her, was unreasonable to take. Janey may well be found guilty of arson if the prosecution can establish that\ she was aware of even the smallest risk of causing criminal damage by fire.\ This would have to be determined by the evidence, but account would be\ taken of:\ o Janey's age (14) and understanding.\ o She has no time to think as Rosie's warning is only given as her mother is approaching and she panics.\ o She leaves the park immediately with her mother.\ o Usually, the cigarette would have burnt itself out Janey may not have considered the park bench when throwing the\ cigarette.\ BUT:\ o A normal 14-year-old would know of the risks of fire and there is no suggestion that Janey does not.\ o It is an exceptionally dry summer, it is well known that dry grass can catch fire and cigarettes are a known fire hazard. You may legitimately have reached different conclusions as to whether Janey\ satisfies the mens rea or not and, provided your submissions are supported by\ the evidence, you will be credited. **Mens reas of criminal Damage** - A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence - Actus reus - Destroy or damage - Property - Belonging to another person - Mens rea - Intend or be reckless in destroying or damaging property - Such property -- means property belonging to another - Therefore be knowledgeable that the property belongs to another person **Mens rea elements:** - Direct Intent - purpose, aim or desire for an outcome - Indirect intent - Foresee the consequence of virtually certain (subjective) - It must in fact be virtually certain - Flight (heahtrow to JFK), commercial flight -- blow up the plane but there is no aim desire or purpose to kill anyone, just the aim desire or purpose to destroy the plane - You recognise that it is virtually certain people will die but you HOPE (and not aim desire or purpose) to kill them/hope they will live - Fact that they will die - R v Woollin -- leading case on indirect intent - **Consequence is virtually certain** - **Foresaw the consequence as virtually certain** - Recklessness - Defendant has to foresee the risk - Defendant took the risk - Risk was unjustified - Subjective test -- R v. G - low intelligence can play a role - in order to convict an 11/12-year-old (or anyone) have to show that in their mind they recognise the risk (have to prove they recognised their risk) - in R v G -- could not convict -- no evidence that they recognised the risk (too young) - one difference between recklessness/indirect intent - what is going on in the defendants mind -- - recklessness -- perceive the risk, no matter how small the perception of risk may be - indirect -- the perceived risk has to be virtually certain -- much higher perception of the risk **[Engage Task 2]** In this task, you are required to consider a defendant's liability for the offence of criminal damage. **[Katrin]**, who is of fairly low intelligence, decides to try out her new high-powered air rifle in the grounds of a hotel, by firing from the top of a hill about 50 metres away from the main building. Her shot breaks a window in a hotel bedroom. **Consider the liability of Katrin for *simple criminal damage*, in each of the following permutations.** For the purposes of this task, you can assume that the actus reus has been satisfied, as Katrin d**amages ('breaks') property ('a window') belonging to another ('the hotel').** With regard to the mens rea, to be guilty of criminal damage, Katrin must either intend the damage or be reckless as to the damage. **Consider the alternatives below and:** 1. **identify which mens rea would apply;** 2. **define the appropriate mens rea; and** 3. **apply this to the facts of the case.** Your answer should consist of short summaries (no more than a few sentences for each). a. **Katrin hopes to damage something.** a. **Direct intent because that was her main aim -- said the word hope which ultimately is desire** b. She hopes not to damage anything but she assesses her chances of damaging something as: i. almost definite; indirect intent because even though the outcome wasn't the main intent but consequence was virtually certain - highly probable is not virtually certain j. It never occurs to her that she may damage anything. - No mens rea because it is not occurring her that damage could happen **You should now consider Katrin's liability for criminal damage in the following scenarios. Your answer should refer to the doctrine of transferred malice*.*** k. Katrin wanted to hit the car of her ex-boyfriend, Mark, who works as a chef at the hotel. She thought she was most unlikely to succeed. - Recklessness -- perceiving risk and taking unjustified risk - Transferred malice -- same crime is hugely important - R v Latimer l. She wanted to kill Mark, who was standing outside the kitchen of the hotel at the time. - Not the same type of crime -- therefore not transferred malice - Had the mens rea to kill - R v Pembliton -- cant transfer malice between different types of crimes 2. Once you have received the feedback, revisit your answers to check your understanding and to consider ways in which you can improve. **[Engage Task 4 ]** 5. The general rule and exceptions. 3. The general rule of omission states that there is no general obligation to intervene and act if someone is in trouble -criminal law text pg 12 4. There are several exceptions to this rule which include: 10. special relationships (R v Gibbins and Proctor 1918), 11. voluntary assumption of care (R v Stone and Dobinson 1977), 12. cross over between special relationship and voluntary assumption (R v Ruffell 2003) (R v Smith 1979), 13. contractual duty to act (R v Pittwood 1902), 14. creation of a dangerous situation (R v Miller 1983), 15. voluntary acts (Hill v Baxter 1958), 16. factual causation (R v White 1910), 17. Legal Causation (R v Dalloway 1847 -- consequence must be attributable to a culpable act or omission) (R v White 1959 / R v Malcherek and Steel 1981 -- culpable act must be a more than minimal cause of the consequence) R v Benge 1865 / R v Pagett 1983 -- culpable act need not be the sole cause) (R v. Blaue 1975 / R v Watson 1989) (Suicide -- R v Wallace 2018) -- taking the victim as the defendant finds them), 18. Causation must not be broken Arguments AGAINST imposing liability for omissions - Where do we draw the line - Unfairness/unjust - What would we define someone who is at risk - Cause harm to the person (defendant) - Could overwhelm the criminal justice system - Infringe on individual autonomy - Arguments FOR imposing liability for omissions - Relationships have duty to care - Protect vulnerable people - Compelled to prevent harm - Compelled to help people in harm - Good Samaritan Act - Medical staff -- compelled to do everything they can to sustain life NHS v Bland - Doctors have to seek court approval to withdraw life support - To remove life support and inject drugs -- they are both acts -- Judges states - Bland -- cause of death was argued that it was the stadium collapsing **Actus Reus:** - Guilty act - It is the starting point for all crimes - Need to have the ability to analyse the evidence and conclude whether the suspect has completed the actus reus of a particular offence - The concept of causation (important element of the actus reus) is highly relevant - General rule: the defendant is criminally liable only if they can be shown to have caused, both in fact and law, harm to the victim **Mens Rea**: - To establish criminal liability, the prosecution has to prove beyond all reasonable doubt that the defendant committed the actus reus with the relevant mental state, with strict liability offences being the exception to this rule - This means in most cases that the prosecution must establish that the defendant intended or was reckless as to the consequences of their actions - Mens rea is the technical term for the mental state required for a particular offence and if the prosecution cannot prove that that accused had the necessary mens rea, they will not be convicted **Guilty Conduct** **Actus Reus of an Offence:** - Anything other than the state of mind required of the defendant - Essential elements of criminal conduct -- no one can be found guilty of a crime without it being proved - Need to discuss whether a defendants behaviour amounts to a criminal offence - Important on whether the defendant should plead guilty or not guilty - Actus reus (guilty conduct) often involved a defendant taking some positive action (starting a fire or punching someone) -- in many cases, therefore, establishing guilty conduct is quite straight forward. - Some complex issues can arise when considering the actus reus of a crime - Charged with murder and says they stood by and watched someone drown, have they committed the actus reus of killing? They haven't done anything, but in some circumstances, you can be liable for failing to act **Types of Actus Reus** - If the actus reus of an offence cannot be proved, there is no criminal liability - **Actus Reus of Murder** - The actus reus of murder is causing the death of a human being. It would clearly be ludicrous to accuse someone of murder if no-one had died, the actus reus of the offence would be missing and no criminal liability for murder could follow - It can be a complex principle -- as well as people doing or, sometimes failing to do things, it also encompasses any circumstances or consequences needed for the offence to be established - The conduct of the defendant is the attack on the victim and the relevant **consequence** is their ensuing death - **Actus Reus of Rape:** - the conduct of act needed is that the man has sexual intercourse with a person -- does anything else need to be established? - A man has sexual intercourse with a person who does not consent - You can see that intercourse is an essential element of rape, but it is not the only one -- the actus reus is not complete unless a particular circumstance also exists -- here the lack of consent on the part of the victim - The actus reus of rape consists of conduct by the defendant -- the act of sexual intercourse -- and the existence of certain circumstances -- lack of consent by the victim - Sometimes the defendant just doing something is enough, but, for many offences, that conduct by the defendant must be accompanied by the existence of certain circumstances **Activity** - How do you know what is the actus reus of a particular crime?? - Criminal offences are defined by statute or case law. - Each offence, you need to go to its definition and pick out all the elements that make up the actus reus - Example: offence of criminal damage (s. 1 Criminal Damage Act 1971) - Read s.1(1). Don't worry for now about the reference to lawful excuse. Identify the actus reus of the offence of simple criminal damage under s.1(1) of the Criminal Damage Act 1971. - Actus Reus: - Destroy or damage - Property - Which belongs to someone else - Assume that someone drags their key down the side of your car, scratching it. They are charged with criminal damage under s.1(1) of the Criminal Damage Act 1971. Is the actus reus established? The defendant has done something -- he has dragged his key along the car. The relevant consequence has followed as the car has been scratched and so damaged. The relevant circumstance exists as the car is property, belonging to another. So the actus reus of criminal damage is complete. **Liability for Omissions** - People often speak about someone committing a crime or carrying out a criminal act, and so we tend to think of crimes as something people do -- positive action - Ex. Fictional Case -- R v Phillips - Facts - Jane Phillips has an argument with Gary and steals his laptop - Goes to the bar and has several shots of vodka -- is now intoxicated - Believes that Sandy (bartender) tries to steal her phone - Jane pins Sandy up to the wall, punches her 3 times and throws her to the floor - Sandy has severe bruising, a badly broken nose and a fracture skull as a result - Jane is charged with theft of Gary's laptop and an offence inflicting grievous bodily harm on Sandy - Charged with 2 offences (theft and assault), in both cases, Jane *did* something -- positive actions - Can there be criminal responsibility for failing to act -- some crimes have to have positive conduct by the defendant or else they would not be possible (rape, burglary) - Think back to the offence of murder -- actus reus is causing the death of a human being. - Think of positive ways you can kill someone - Stabbing, suffocation, strangling, shooting poisoning - All of these involve positive steps (you have done something) to bring about the death of your victim - But can there be situations in which the defendant fails to act, and someone dies/ is injured as a result? Criminal Liability for an omission? - Ex. you are walking along a beach, and you see a toddler in distress in the water -- you carry on walking, ignoring the toddler who subsequently drowns. - Should you be liable for causing that child's death? - Would think there's a moral responsibility but is there a criminal liability for failing to try and save the child **Activity -- drowning child at the beach** - Tereza is at the beach. She spots a young child in the water who is clearly in distress. She ignores the child who subsequently drowns. Should Tereza be liable for the death of a child? Consider each set of facts below and type in an answer of \'Yes\' if you think the facts *should* make her liable or \'No\' if you do not think she should attract criminal liability. A. Teresa is the child's mother a. Yes, responsibility to care for the child b. B. Teresa is a lifeguard employed to protect swimmers on the beach c. Yes, duty and contracted to save and protect C. Teresa had taken the toddler to the beach for the day as a favour for a friend d. Yes, responsibility to care for the child D. Teresa has taken her own family to the beach and has never seen the toddler before e. No but potentially yes -- negligence - Under the law of England and Wales, there is generally no liability for failing to act, and no general obligation to intervene and help if someone is in trouble - The starting point with Tereza is that, however morally reprehensible her behaviour, she commits no crime by allowing the child to drown **Special Relationships** - General principle is that there is no criminal liability for failing to act, but there are exceptions to the general rule - There are four main situations where a person can commit the actus reus of an offence by failing to act (almost all case law in this area relates to offences of murder or manslaughter because these are the types of offences most easily committed by omission) - **Special Relationship:** - Special relationship between defendant and their victim - Case law has held that it can be established either through family ties or because the defendant has assumed the duty towards the victim - Ex. not saving the drowning child -- mother? Guilty of causing their death by her inaction. Aunt and their nephew? Law is less clear, dependant on facts of particular case - R. v Stone and Dobinson (1977) - the two defendants took in Stone's sister to live with them. Stone and Dobinson made what the court called 'ineffectual' attempts to look after the sister when she became ill, but did not take proper care of her. The sister died and the defendants were convicted of manslaughter.  - Special relationship may exist if you are a parent or if you have assumed duty of care towards the victim - Law is unclear as to how far the duty extends in the case of care for elderly parents, adult siblings - **Breach of Contractual Obligation to Act** - Case law, such as the case of *R v Pittwood  *(1902) 19 TLR 37, has held that a person can be guilty of a crime if they fail to act when they have a contractual obligation to do so. So a lifeguard ignoring a drowning child could be liable for their death. Their contract of employment would require them to act to try to save the child. The same would apply to a childminder who is employed to care for the child. - **Breach of Statutory Obligation to Act** - Liability for omissions does not only come from case law. It is also created by statute. Legislation often imposes a duty to act and breach of that duty attracts criminal liability. Road traffic legislation provides numerous examples of liability for omissions. For example, you must stop at red traffic lights -- failure to do so is a crime; you must stop after an accident if anyone is injured. Failure to do so is again a criminal offence. **Test your Knowledge** Neil switches on the gas cooker at his home but forgets to light the burner. He later notices that the burner is not lit and smells gas. He leaves the house without turning off the cooker. Joe, the builder, is in the house. He lights a cigarette and the house explodes, killing Joe. - Special Relationship - Contractual Duty - Statutory Duty - None of the above **Correct** Neil has no criminal liability for causing Joe\'s death on the basis of any of these principles. - Neil has no criminal liability **based on these three exceptions** - You may feel that he should incur criminal liability because he created a dangerous situation then ignored the smell of gas -- fourth exception to the general rule is **dangerous situation** exception **Dangerous Situation** - Where someone realises they have created a dangerous situation, the law imposes a duty on them to take reasonable steps to remove the danger - This was established in the case of R v Miller (1983) **Causation** - It has to be shown that the defendant **[caused]** those consequences to occur. - If causation cannot be established, then the actus reus of the offence is not completed and the defendant would have to be acquitted - Ex. case of Jane Phillips - We know she has been arrested after taking a colleagues laptop and hitting a barmaid at a local bar -- Jane is charged with theft of the laptop and with a s.20 assault - Actus reus elements of s.20 - Offences Against the Person Act 1861 s 20 - Actus Reus -- wounding or inflicting grievous bodily harm (GBH) - "Wound" involves a cut and "grievous bodily harm" means really serious harm - In Jane's case, the prosecution would have to show that Jane's actions results in Sandy suffering a cut or a really serious injury. - The cuts on Sandys fact fit the definition of a wound - Jane causes these cuts to occur when she punched Sandy in the face and threw her to the floor - All elements f actus reus of s. 20 are established -- there can be no doubt here that Jane casues the wounds - Sometimes not as easy -- Imagine Jane pushed Sandy and Sandy fell and cut her face on broken glass lying on the floor - There was an intervening event that occurred between Jane attacking Sandy and Sandy suffering her injuries - The court now has to decide whether Jane can still be said to have caused the injury **Activity** -- **Causation** - Causation can apply to any crime, many of the causation issues that have come before the criminal courts relate to incidents where the victim has actually died, and the defendant is disputing they cause the victim's death - Activity: Three people have been charged with murder. Each denies causing the death of the victim. In each scenario consider whether you think that the defendant caused the victim\'s death. a. Jemma wants to kill her husband Owen. She puts poison in his tea. Before he can take a drink Owen dies of a heart attack a. No b. She may have wanted to but she didn't casue Owen's death -- her actions had nothing at all to do with casuing his death so the actus reus of murder wouldn't be made out b. Fred shoots Will at point blank range. Will dies instantly from his injuries c. Yes -- no questions c. Hannah kicks Emma and breaks Emma's leg. An ambulance takes Emma to hospital but on the way the ambulance crashes and Emma is killed d. Yes - but arguments for both e. Yes: if Hannah didn't attack Emma, then Emma wouldn't have been in the ambulance and wouldn't have died f. No: on Hannah's POV it would be very unfair to accuse you of causing Emma's death when there'd been an intervening event which, in this case, was completely unforeseeable g. Both are sensible propositions and resolving problems of causation like this has exercised the courts for centuries **The Courts' Approach to Causation** - The courts' approach to causation is a complex one so we will confine ourselves just to the basic points of principle here. - **The 'But For' test** - Courts starting point when considering the issue of causation - If this test is not met, a defendant cannot be said to have cause the victims death - That is why, as a matter of criminal law, Jemma (example above) cannot possibly be said to have caused Owens death -- her actions had nothing to do with Owen's demise. - If the question is asked -- 'but for Jemma's actions would Owen have died?' -- the answer is yes, he would have died in any event, so his death was nothing to do with her acts - In most cases, if the "but for" test is met, it is proof that the defendant caused the death -- in the question of Fred's case -- Fred shooting Will, would Will have died as he did? clearly the answer is no, he would not, so the "but for" test is satisfied and Fred can be said to have caused Will's death **Problems with the "But For" Test** - An issue with just applying the "but for" test, to determine the issue of causation is that it makes the defendant responsible no matter what outlandish things happened to their victim after they were attacked and before they die - Consider a situation where Pete attacks Gilly and she twists her ankle as a result. Gilly goes off to the Accident and Emergency department for treatment. While she is waiting to be seen, a gunman bursts in and shoots several people dead, including Gilly. - Did Pete cause Gilly\'s death? Certainly she was in the A and E department because of what Pete did to her, but can it be argued that Pete killed her? Something completely unexpected happened to bring about Gilly's death. Does that allow Pete to escape criminal liability for Gilly\'s death? - Defendants and their lawyers need to be mindful that even where there is an issue relating to causation, the courts are unwilling to exonerate the original protagonist, except in the most extreme cases - If the defendants actions contributed to the death, they will usually be said to have caused it, even if there were also other causes of death operating - Does it make any difference that your victim was vulnerable in some way? - The law on this is clear -- you have to take your victim as you find them, that is with any weaknesses or vulnerability they may have. So, assume you deliberately frighten someone who, unknown to you, suffers from a serious heart condition. As a consequence of your actions, they have a heart attack and die. You caused their death because you have to take your victim as you find them, heart condition and all. It will be no defence to argue that the outcome - the death - was unexpected. **Criminal States of Mind** **Guilty Mind?** - In most criminal offences, the defendant must have a guilty mind at the time of their guilty conduct - However, there are some situations when a defendant can commit a criminal offence even though they lacked a guilty state of mind - **Crimes that Only Require Proof of Negligent Behaviour** - Some crimes require only proof of negligent behaviour -- the offence of careless driving is an every-day example - it does not matter what the defendant was thinking at the time -- if he drove below the standards of the reasonable driver -- he is guilty as he has driven negligently - **Crimes of Strict Liability** - A crime is one of strict liability where a person is liable even though they are morally blameless. They might have acted exactly as a reasonable person would do but if the crime is one of strict liability, they are guilty -- accidentally polluting a river is an example of a strict liability crime - Mens rea -- guilty mind - The mens rea will very from one offence to the next **Direct Intent** - Example: - Imagine you are sitting on a jury at the Crown Court. You have to decide whether Frank is guilty of murder. The evidence is that Frank shot Sid at point blank range. Sid died instantly. Frank told police he hated Sid and wanted him dead. - There is no doubt that Frank caused Sid's death, so the actus reus is clearly established. But what about mens rea? Did Frank intend to kill Sid? You probably decided without a second thought that Frank did intend to kill Sid. He set out to kill him - he wanted him dead. This would be a case of direct intent to kill - the outcome achieved is the defendant's aim, purpose, goal or desire. - A jury would have no issue of intention -- they would simply apply common sense understanding of the word to decide if the defendant intended the consequences of his actions - Motive -- why someone did something is not relevant to the issue of mens rea, although motive can sometimes affect sentence after a defendant has been convicted **Indirect Intention** - What if a defendant argues that they did not want something to happen/ it was not their purpose or aim? - Perhaps they had a particular goal in mind and the crime of which they are accused was a side-effect of achieving that goal -- is there an intention to commit the criminal offence? - Example: - Rehana plants a bomb on a plane. It is timed to go off in mid-air because Rehana wants the plane to explode so she can make an insurance claim on the cargo it is carrying. The bomb goes off as planned and the cargo is destroyed. The crew of the aircraft are killed. - Rehana is charged with murder. She says she is devastated by the crew's deaths. She hoped that, by some miracle, they could have been saved. - Did Rehana intend to kill the crew? - Rehana will say she did not want them to die. Her aim or purpose was to destroy the cargo so she could claim the insurance money. She will argue that she had no direct intent to kill the crew because she did not set out to kill them -- their deaths were an unfortunate by-product of her main purpose which was to claim on the insurance. - But surely she should not get away with it! It was almost inevitable that the crew would die as part of her plan. Does the law enable a jury to find that Rehana intended to kill in this type of case? - The answer is yes. A case like Rehana's would require consideration of the principle of indirect -- or oblique -- intent. This is a concept developed by the courts which we will look at in detail later. - Essentially the jury in Rehana's murder trial will be told that, even though Rehana lacked direct intent, they can still find that she intended to kill the crew if the jury concludes - That the consequence was virtually certain to occur and - That the defendant (Rehana in this case) foresaw that consequence as virtually certain to occur - Ultimately -- Rehana did intend to kill the crew because death was virtually certain to occur, and she foresaw it as a virtual certainty **R. v Phillips (fictious case)** - Facts - Jane Phillips has an argument with Gary and steals his laptop - Goes to the bar and has several shots of vodka -- is now intoxicated - Believes that Sandy (bartender) tries to steal her phone - Jane pins Sandy up to the wall, punches her 3 times and throws her to the floor - Sandy has severe bruising, a badly broken nose and a fracture skull as a result - Jane is charged with theft of Gary's laptop and an offence inflicting grievous bodily harm on Sandy - Actus Reus: - Wound or inflict any grievous bodily harm upon another person - Mens rea - Maliciously **Maliciousness** - Unlawful means 'without a defence' - Maliciously is the mens rea element of the s.20 offence - Spiteful, intending to hurt, upset -- describing states of mind - Malicious in criminal law has been given a legal definition by the courts for the purposes of s 20 - Leading case R. v Mowatt (1978) the defendant was convicted by the Crown Court of a s.20 assualt after he attacked a police officer. The Court of Appeal subsequently had to determine what was meant by the term maliciously **R. v Phillips** - If Jane intended to cause some harm, she will be guilty of s.20 - What if the prosecution struggles to prove direct intention? Jane might argue that she did not set out to cause any harm to Sandy -- on the facts it would be unlikely that the jury would believe Jane but if they did, is there any other way of establishing the mens rea of s.20 - Prosecution could try to establish **indirect intent** - Only go down this route if they **[had]** to prove intention to get a conviction and they knew they could not prove direct intent - The prosecution has to prove that Jane acted maliciously -- maliciously means **[either]** intentionally OR recklessly -- if direct intent cannot be proved, the prosecution will avoid the hurdle of indirect intent and try to prove recklessness instead **Recklessness** - Recklessness in criminal law involves foreseeing a risk and going on -- without justification -- to take that risk - Need to ask: - When will taking a risk be without justification - Who must foresee the risk - What risk must be foreseen - Justification: - Trying to prevent greater harm by taking the risk of causing injury - Magistrates or jury will have to decide whether the taking of a risk was justified by evaluating the social utility or benefit involved in taking that particular risk in those circumstances. It is an objective decision - Would a reasonable person have considered there was any merit in taking the risk? - Often the issue of justification will be decided long before the case gets to court -- the prosecutor will decide not to prosecute if there is clear justification for taking a risk **Recklessness -- Foresight of Risk** - Foresight of risk has to be established but it raises two questions - Who needs to foresee the risk - Does the prosecution have to prove the defendant did foresee the risk, or is it enough that they prove the defendant should have foreseen the risk because a reasonable person would have done so? - Subjective test -- the prosecution have to prove that this defendant did foresee the risk, it is not enough to argue that they should have done so - What risk needs to be foreseen - We need to consider ***[what]*** the defendant needs to foresee as a risk -- this will always depend on the offence charged **R. v Phillips -- Case Analysis** - Direct intent - You may have decided that Jane did have mens rea. She may have intended to cause Sandy some injury. Jane did "grab" her and then punch her several times. Was it Jane's aim or purpose to cause some physical harm to Sandy?  If so, Jane had direct intent and so has the necessary mens rea of the offence. - Indirect intent - If Jane lacked intent, the prosecution would not usually try to prove indirect intent. - They will only seek to rely on indirect intent if the crime requires proof of intention and nothing less will do, as is the case with murder - Recklessness - Here, the mens rea can be established by intention OR recklessness. So if Jane did not intend to harm Sandy, was she reckless? That is - did she foresee the risk of causing some physical harm to Sandy? And if so, did she go on without justification to take that risk? - There's little doubt that the risk was unjustified -- there is clearly no social benefit in beating someone up. - But did Jane foresee the risk? It depends on the facts, but, surely, the answer has to be yes. She grabbed Sandy, punched her several times, and threw her to the floor. The facts would seem to suggest that Jane did foresee the risk of causing harm to Sandy. If this is the case, then the mens rea of the offence is established. - What if the prosecution argued that Jane should have foreseen the risk of harm? As we have seen, this is irrelevant -- they have to prove that Jane **[did]** foresee the risk before they can secure a conviction. **Activity** Decide whether you think Keith should be guilty of murdering Sian and type in the box provided the reason(s) for your decision. Remember to consider whether (a) the actus reus and (b) the mens rea of the offence are established.  - Keith hates Fiona and wants to kill her. He points a gun at Fionas bedroom window planning to shoot and kill her. He sees a female figure at the window, fires his gun and runs off believing he has killed Fiona. In fact it is Fiona's flatmate, Sian, who is shot. Sian dies of her injuries. Keith is charged with murder. He says he didn't intend to kill Sian. Keith says he loved Sian and is devastated by her death - **Actus reus** - Yes -- there was positive action, Keith pulled the trigger and shot someone and killed them -- therefore there is actus reus - **Mens rea** - Yes because even though he did not kill the right person, he still had the intent to kill Fiona and he knew that there was potentially another person in the flat (as he knew and loved Sian) and the But For test is satisfied **Transferred Malice** - When considering mens rea issues of intention or recklessness does the defendant have to have mens rea specific to his victim or is it sufficient for them to have a general mens rea - General mens rea should suffice -- broadly speaking, the law agrees - The doctrine called 'transferred malice' establishes that if a defendant has the 'malice' (think of it as mens rea) to commit a crime against one person, that 'malice' transfers to any unintended victim - So in the example -- Keith is guilty of murdering Sian - This doctrine does not just apply to murder cases -- the same principle applies to other offences against people (ie. Assault) and to offences against property (ie. Criminal damage or theft) - There are limits - The principle of transferred malice will only work if the actus reus committed is the same type of crime as the defendant originally had in mind - Ex -  The principle of transferred malice will only work if the actus reus committed is the same type of crime as the defendant originally had in mind. Sally set out to commit an assault. The actus reus committed (damage to property) is not the same type of crime as assault so transferred malice will not apply. - The approach taken by the New Zealand Court of Appeal in Lee focused on the defence of the victim as a defence, consent can be withdrawn based on individual facts of the case and other values, with an emphasis and focus on personal autonomy and there is no defence of consent where death is intended or subjectively risked -- no exceptions - - The case of Lee focuses heavily on individuals autonomy and social utility as the main purpose of making decisions. - - The Court of Appeal adopted the minority position of Lord Mustill in Brown in which consent can be used as a defence in respect of intentional or reckless infliction of actual bodily harm, however Lee took it one step further and created the presumption that consent was also available as a defence once grievous bodily harm was intended or risked by the accused - - Lee -- requires the court to decide whether or not to overturn that presumption by directly engaging with considerations of harm, victim vulnerability and social utility on the facts of the individual case rather than assessing these considerations in relation to the generic category of behaviour it belonged to -- gives full expression to the reasons for allowing/disallowing consent in the first place - - In Brown, there was emphasis on public interest to not inflict actual bodily harm for no good reason, victims consent was not a defence, satisfying sado-masochistic desires was not a valid reason and since there was admission of guilt and the injuries were neither transient nor trifling, the question of consent was immaterial - - The approach in Brown focuses heavily on morality, public interest and policy , and focused heavily on whether behaviours serve an important social function and if there are reasonable safeguard implemented. The case of R v Brown removed freewill and considerations of victim vulnerability from the decision as to whether the defence of consent is allowed or disallowed on a set of facts -- considerations of harm are assessed in the abstract - - Brown creates a patchwork of categories of lawful and unlawful activities loosely based on 'normal' behaviour and what Is not -- it employs analogy-based reasoning to determine which category any particular activity falls within - - - I agree with Tolmie conclusion as the law should not reasonable take away an individual's personal autonomy and if they are have the ability to consent without and vulnerabilities and they are in full acknowledgement of the events that are to occur and the harm that they will most likely endure, there is no reason that they cannot consent to the acts they are participating in. it can also be difficult as seen in the case of Brown, to measure that activities fall within the lawful and unlawful category and therefore, causes of consent as a defence should be seen on individual facts and not as a generic category. It can also be argued that the law, taking away an individuals free will and individual autonomy is more harmful than the individual consenting to activities in which they take pleasure in as they are seen to be against public interest and policy. **Assault offences** [Actus Reus] - Starting point -- the injury; what is it, and within which legal definition does it fall? - Consider the 'possible' offence(s) that could apply. - Begin by discussing the most serious offence first. - Work down the assaults and complete your discussion with the least serious offence which could apply (realistically) on the facts. [Mens Rea] - Use the evidence to consider the defendant's state of mind. - Having identified that the actus reus of a particular offence has been satisfied, consider whether the mens rea is also met. - If not, work down the offences until the actus reus and mens rea have both been satisfied. [Finally] - If more than one offence 'fits', consider which you believe is relevant and why. **Scott and Thomas** S.18/s.20 - Scott was punched in the face, unconscious -- would fall under serious harm as he is unconscious for an extend period of time and needs an ambulance (extend unconsciousness can lead to affects on brain functioning) - S.18 -- actus reus requires is really serious harm. Actus Reus was fulfilled as he caused really serious harm - **Was it his aim, desire, purpose for a specific outcome** - **"you'll really regret this" -- does not help his case, possibly shows intent** - **Punched him just once, if he wanted to cause GBH he'd keep going -- goes against possible intent** - **Took a step back and punched him full on in the face -- possibly shows intent** - **Hard to prove MR until more information from doctor** - S.20 -- - AR -- - MR -- maliciously -- intention or recklessness as to actual bodily harm -- see facts above -- punching is intent to cause actual bodily harm - S.47 -- easiest arrest to make - AR -- simple or physical assault causing actual bodily harm - MR -- intention or recklessness as to the simple or physical assault (NO NEED for the defendant to have intended or foreseen the **actual bodily harm)** Start with s.47 -- define AR -- give case State the facts Unconsciousness -- need to have more facts to see if there is actual GBH - Need information from doctors and ambulance **Thomas and PC Manson** - S.18 - AR: - wounded PC Manson -- has a wound (cut on leg -- broke layers of skin and there's blood) from Thomas pushing him trying to resit arrest - MR: (rely on alternate way to prove MR because -- first intent is hard to prove) - Intention to resist/prevent arrest - PC Manson went to arrest him and Thomas pushed him and ran away trying to - Intention or recklessness as to causing **actual bodily harm** - Reckless to causing actual bodily harm - Have to prove that he foresaw the fact that pushing would cause actual bodily harm -- recklessness requires subjective -- has to acknowledge that there is a small risk and does it anyways -- has to be what he believes not what a reasonable person would foresee -- that's why its subjective - Pushing could be seen as an act of aggression - Look at the environment - Could be for or against - - Facts are kind of unclear - - Could be intent because he probably heard them saying that - If not going to go for s.18 -- not going to go for s.20 because MR is identical to s.18 - S.47 - MR -- only requires intent for an assault not actual bodily harm - He intended to push him and therefore satisfies MR - AR: simple or physical assault causing actual bodily harm - This satisfies **Use your notes to answer these questions on the law of consent and the case of *R v* *Brown.*** a. What is the general rule in relation to consent? - **Consent as a defence is not available to any assault where harm is intended or caused even if the consent it valid -- Attorney-General Reference \#6 1980** b. - **Surgical operation** - **Dangerous exhibitions** - **Properly conducted sports -- R v Barnes** - **Lawful activities -- tattooing, ear-piercing, ritual circumcision -- R v Brown** - **Rough and ill-disciplined behaviour -- horseplay -- R v Jones** c. **Does Lord Templeman assume/imply that,** currently, sado-masochistic activities (SM) are lawful or unlawful**?** - Sado-masochism was concerned with violence as well as sex and as such fell within the OAPA 1861 - have no way of foretelling the degree of bodily harm which will result from their encounters' and that the acts were 'unpredictably dangerous' - it's a public policy and therefore not a new exception - paternalistic view - "protective of society" - Ur dad d. **In his conclusion, he decides that the defence of consent should not be extended to SM based on what considerations?** e. **Is his judgment indicative of a paternalistic or a civil libertarian approach, and why?** f. List five reasons why you believe that Lord Templeman took this view. - have no way of foretelling the degree of bodily harm which will result from their encounters' and that the acts were 'unpredictably dangerous' - Can get out of hand -- not a great argument -- things get out of hand in sports or horseplay - Concerned with violence and not the act of sex -- concerned with public policy - Violent conduct - Influence on young people -- some participants were young - Infection of HIV/aids within the group -- public health - Glorification of violence -- - Didn't want to invent a defence of consent for these types of activities g. Summarise Lord Templeman's judgment in a sentence or two. h. **Why does Lord Mustill (dissenting) consider SM to be legal?** - **Law should respect individual autonomy** - **Defined as private, consensual sex and is legal** - **If anyone is to make it illegal it is Parliaments job to do so** - **Judges aren't here to make public policy** - **Sexual disease isn't coming from SM activities but sex overall and therefore in Lord Templemans argument -- sex should be outlawed** - **Can get out of hand -- can apply to sports and horseplay as well** - **Risk of corruption of young people -- worrying but not enough to be criminal** i. **In his conclusion, Lord Mustill decides that the defence of consent should be extended to SM. Is his judgment indicative of a paternalistic or a civil libertarian approach, and why?** j. List five reasons why you believe that Lord Mustill took this view. Taking the most extreme example and making it illegal -- not all SM cases will have someone end up in the hospital or will involve drugs Next, consider how the arguments from the case of *R v Brown* have been applied in the four cases listed below: ***Wilson* \[1997\] 1 QB 47** - **Branded initials on her ass -- decided the activity was analogous to tattooing** *Emmet* (1999) The Times, 15 October - Applied R v Brown -- degree of harm made it appropriate for the criminal law to interfere *Dica* \[2004\] QB 1257 - If you have an STI you have to inform your sexual partners and if you don't, they haven't fully consented ***R v BM* \[2018\] EWCA Crim 560** - Body modification -- wanted to look like a lizard - Said it was tattooing -- judges rejected that and medical procedure and needs to be done by a doctor For each of these: - state what you believe the legal principle is -- namely that which has an impact on future cases; and - give a comment that you could use when analysing the defence of consent in an essay. It is important that you go beyond simply describing the law to critically evaluating it (in the manner of an informed debate), if you are to achieve a good grade on this course. Part 2: Critical Evaluation In this part, you will use your understanding of the issues raised in the case of *R v* *Brown* to evaluate the law of consent, with particular reference to another jurisdiction. To assist you in structuring your analysis, you will work with your colleagues on the following: 1. **Identify and summarise the approach taken by the New Zealand Court of Appeal in the case of *R v Lee* (2006) 22 CRNZ 568.** 2. **Contrast this with the approach of the House of Lords in *R v Brown*.** 3. **Consider Tolmie's conclusion that the New Zealand approach was better than that of the House of Lords in *Brown*.** 4. **What are Tolmie's objections to category-based decision making as in *Brown*?** Thereafter, you should consider what conclusion you would reach. Is the current law satisfactory or do you prefer the approach adopted in New Zealand? By the end of this discussion, you should feel more confident about dealing effectively with questions on this topic should it arise in your assessment. +-----------------------+-----------------------+-----------------------+ | Consent -- Sexual | Attorney-General | - General surgery | | Activities | Reference (No. 6) | | | | | - Sports | | - Consent can be a | R v Dica 2004 | | | defence where no | | - | | harm is caused or | - Defendant was | | | intended-- | charged with | | | consent cannot be | inflicting GBH on | | | a defence to more | his victims by | | | serious assaults | transmitting the | | | charged un the | HIV virus to them | | | OAPA 1861 | through sexual | | | | activity | | | - Victim only | | | | consents if they | - Court said first | | | know the nature | issue was whether | | | and quality of | the victims were | | | the act to be | aware of the | | | committed, and | defendants HIV -- | | | the identity of | the fact that the | | | the attacker | victims had | | | | consented to | | | - Taking the Risk | sexual | | | of Harm offender | intercourse with | | | taking the risk | the defendant did | | | of infection | not mean they had | | | rather than | consented to any | | | deliberately | risk of infection | | | trying to inflict | | | | harm. The risk | - "private sexual | | | was incidental to | activity would | | | the main purpose | not be considered | | | of the act -- | unlawful, just | | | sexual | because there was | | | intercourse -- | a known risk to | | | and this is | the health of one | | | different to the | participant" | | | facts of Brown | | | | (concerned with | R v Konzani | | | sado-masochistic | | | | act) | - Taking the Risk | | | | of Harm | | | - Distinction | | | | between | - Similar | | | intentional | allegations to | | | infliction of | Dica. Evidence | | | harm and taking | was that the | | | the risk of harm | defendant had not | | | -- "in principle | told his sexual | | | there is a | partners he was | | | difference | HIV positive | | | between violence | | | | which is | - Jury decide that | | | incidental and | the victims had | | | violence"which is | not consented and | | | inflicted for the | convicted him of | | | indulgence of | offences under | | | cruelty" | s.20 of the OAPA | | | | -- held on appeal | | | | | | | | R v Brown (and r v | | | | Emmett) | | | | | | | | - Deliberate | | | | Infliction of | | | | Harm | | | | | | | | - Distinguished | | | | from Dica -- | | | | concerned with | | | | the deliberate | | | | infliction of | | | | harm. The fact | | | | that such harm | | | | was for sexual | | | | gratification did | | | | not make them | | | | lawful | | | | | | | | DPP v Smith | | | | | | | | - In this case the | | | | defendant was | | | | alleged to have | | | | caused actual | | | | bodily harm to | | | | his former | | | | partner by | | | | cutting her hair. | | | | He was charged | | | | with an offence | | | | of assault | | | | occasioning | | | | actual bodily | | | | harm under s. 47 | | | | OAPA 1861.  | | | | | | | | - When the case was | | | | tried in the | | | | magistrates' | | | | court, the | | | | defence submitted | | | | that there was no | | | | case to answer | | | | because the | | | | cutting of hair | | | | did not amount to | | | | actual bodily | | | | harm. The court | | | | agreed. The | | | | prosecution took | | | | the matter on | | | | appeal to the | | | | High Court. | | | | There, it was | | | | held that cutting | | | | hair, like | | | | putting paint on | | | | it or some | | | | unpleasant | | | | substance that | | | | marked or damaged | | | | it without | | | | causing injury | | | | elsewhere, was | | | | capable of being | | | | assault causing | | | | actual bodily | | | | harm. | | | | | | | | - | | +=======================+=======================+=======================+ | Consent -- Homicide | R v P | **[Different | | | | scenarios:]{.underlin | | - General rule: | - the defendant and | e}** | | consent will fail | a co-accused | | | where ABH or | picked up the | Diana is a jeweller | | worse is caused | victim, lifted | who is qualified in | | or intended. | him over a bridge | body piercings. She | | | and dropped him | is charged under s.47 | | - Mercy killing -- | into the river | OAPA 1861. She admits | | is murder, | below. The victim | that she pierced the | | consent of the | drowned. | ears of a 15 year old | | victim to being | | girl who came to her | | killed is no | - Defendant tried | shop and requested | | defence -- assist | to appeal however | the procedure. As the | | someone to commit | Court of Appeal | girl is under 16, the | | suicide, you | dismissed the | defence of consent | | commit murder | appeal | will not succeed -- | | | | **[false] | | - | - Defence of | ** | | | consent did not | | | | help the accused | - There is no | | | because the jury | reason why Diana | | | didn't believe | should not rely | | | his evidence | on the defence of | | | | consent. Remember | | | Similar cases -- R v | that for assault | | | Jones (1987) and R v | offences, the | | | Aitken (1992) | victim's age is | | | | only relevant to | | | - It acknowledges | their ability to | | | horseplay as a | understand the | | | scenario where | nature and | | | consent | quality of the | | | **[can]{.underlin | act, and the | | | e}** | identity of the | | | afford a defence | defendant. If the | | | even where | 15-year-old girl | | | serious -- and | gives a valid | | | even fatal -- | consent, this | | | injury results | will be a defence | | | | to the s.47 | | | - It seems with the | assault offence. | | | right evidence, | Ear-piercing was | | | the consent of | acknowledged | | | the victim, or | in *Brown* to be | | | indeed an | an activity which | | | **[honest belief | fell within an | | | in | exception to the | | | consent]{.underli | general rule that | | | ne}** | consent cannot be | | | on the part of | a defence if harm | | | the defendant, | is caused. | | | can afford a | | | | defence to a | Wynn is chairman of | | | charge of | an extreme sports | | | manslaughter | club. It is a | | | | tradition of the club | | | | that all new members | | | | take part in an | | | | initiation ceremony. | | | | When Jim joined the | | | | club he went through | | | | the ceremony. Wynn | | | | admits that he put | | | | electrodes on Jim\'s | | | | body which burnt Jim. | | | | Jim is scarred as a | | | | result. If Jim was | | | | aware of the details | | | | of the initiation | | | | ceremony before he | | | | joined the club, Wynn | | | | may be able to rely | | | | on the defence of | | | | Jim\'s consent to the | | | | risk of injury. -- | | | | **[True]* | | | | * | | | | | | | | - Wynn may be able | | | | to rely on the | | | | defence of | | | | consent if Jim | | | | was aware of the | | | | details of the | | | | ceremony. Even if | | | | he did not give | | | | an express | | | | consent to being | | | | injured, Wynn | | | | will say Jim | | | | impliedly | | | | consented to the | | | | risk of harm by | | | | agreeing to the | | | | activity. What if | | | | Jim was not | | | | consenting either | | | | expressly or by | | | | implication? | | | |  Even then, if | | | | Wynn honestly | | | | believed Jim to | | | | be consenting, | | | | that could | | | | suffice. Wynn | | | | will argue this | | | | is a | | | | \"horseplay\" | | | | case, and that | | | | the court should | | | | follow the | | | | principles | | | | established in *R | | | | v Jones* and *R v | | | | Aitken.* | | | | | | | | - Even if Jim | | | | dies, *R v | | | | P* suggests his | | | | death is not an | | | | automatic bar to | | | | the success of | | | | the defence. As | | | | there is no | | | | suggestion that | | | | Wynn intended | | | | death or GBH, the | | | | charge is likely | | | | to be one of | | | | manslaughter and | | | | the defence of | | | | consent will | | | | succeed if Jim | | | | did consent or if | | | | Wynn honestly | | | | believed he was | | | | consenting. | | | | | | | | Stella works in a | | | | circus. She is part | | | | of a stunt team who | | | | perform high risk | | | | displays. Last night, | | | | a member of the stunt | | | | team was seriously | | | | hurt by Stella in the | | | | course of the | | | | display. Stella is | | | | charged under s.20 | | | | OAPA. She has told | | | | police that she | | | | realised there was a | | | | risk of injury | | | | although she had | | | | hoped that none would | | | | occur. She will not | | | | be able to rely on | | | | the defence of | | | | consent | | | | | | | | - There is nothing | | | | to prevent Stella | | | | raising the | | | | defence of | | | | consent. Injuries | | | | sustained during | | | | dangerous | | | | exhibitions fall, | | | | like ear-piercing | | | | and horseplay, | | | | into the | | | | categories of | | | | activity which | | | | are exceptions to | | | | the general | | | | principle that | | | | consent cannot be | | | | a defence where | | | | harm is caused. | | | | Stella's | | | | team-mate had | | | | consented to the | | | | risk of injury by | | | | taking part in | | | | the display so | | | | Stella can rely | | | | on that consent | +-----------------------+-----------------------+-----------------------+ | Who cant consent: | | | | | | | | The Commission | | | | considered the | | | | question of capacity | | | | to consent and | | | | identified three | | | | groups of people who | | | | may lack this | | | | capacity: | | | | | | | | 1. Those who are | | | | unable through | | | | mental disability | | | | to make a | | | | decision as to | | | | consent. | | | | | | | | 2. Those who cannot | | | | communicate their | | | | decision because | | | | they are | | | | "unconscious, or | | | | for any other | | | | reason". | | | | | | | | 3. Those under the | | | | age of 18 who are | | | | unable to decide | | | | on the matter