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The distinction between criminal law and civil law is important to understand, as not only is the procedure different, but also the outcome. Furthermore, the terminology differs. One popular misconception is that the nature of the wrongful act is what determines whether one is dealing with a crime o...

The distinction between criminal law and civil law is important to understand, as not only is the procedure different, but also the outcome. Furthermore, the terminology differs. One popular misconception is that the nature of the wrongful act is what determines whether one is dealing with a crime or a civil wrong. This is not true as the same act may constitute a criminal offence as well as a civil wrong but what makes the distinction, is the legal consequences that flow from the act. A criminal offence is conduct that is forbidden by the State, and attracts punishment when breached. What acts are forbidden are decided by Parliament and the judiciary, as Statute Law and Common Law (‘judge made law’). An important principle of criminal law is that of ‘presumed innocence’ in that every individual is innocent until proven guilty. It is for the prosecution to prove guilt, “beyond a reasonable doubt” (the so-called criminal burden) and not for the defence to prove innocence (Woolmington v DPP [1935] AC 462 1935 UKHL 1). This is the so-called ‘golden thread’ of British justice: There can be instances, however, where there is a ‘reverse onus’ placed on the defence; i.e. the defence must prove some aspect of their defence, although in such cases the ‘burden of proof’ is “on the balance of probabilities” (the so-called civil burden, used in civil cases). Reverse onuses are problematic for the law of evidence because, despite a wealth of case law, there is still no clear cut answer on when the onus should be reversed and whether or not shift should be in relation to the legal or evidentiary burden, or both. A number of considerations may be relevant to evaluating whether a reversal of the burden of proof is reasonable, necessary and proportionate in pursuit of a legitimate objective. It is generally acknowledged that shifting a legal onus onto the accused with respect to an element of an offence that is essential to culpability is an encroachment on the “golden thread” of the presumption of innocence, and is difficult to justify. Placing the burden of proof on the defendant by creating a defence is more readily justified if the matter in question is not central to the question of culpability for the offence. In the case of R. v. Lambert [2001] UKHL 37, [2001] 3 WLR 206 the “reverse onus” being placed on a defendant is exemplified: On 9 April 1999, the defendant was convicted of possessing drugs found on him in a bag when he was arrested. He asserted that he did not believe or suspect, or have reason to suspect that the bag which he carried contained a controlled drug. He was convicted having failed to prove on a balance of probabilities that he had not known the drugs were in the bag. This case was heard before the European Convention on Human Rights (ECHR) Act 1998 came into effect. The issue was whether the judge had been correct to direct the jury that there was an “implied legal burden” on the defendant to prove his lack of reasonable belief of possession. In this particular case, the imposition of a legal burden on the accused to prove that he did not know that a package in his possession contained controlled drugs was considered to shift the burden on an essential element of the offence: it was an issue directly bearing on the moral blameworthiness of the accused. Thus the onus was reversed on to the defendant to prove his defence. On appeal in the House of Lords, Lord Steyn observed: “…in a prosecution for possession of controlled drugs with intent to supply, although the prosecution must establish that prohibited drugs were in the possession of the defendant, and that he or she knew that the package contained something, the accused must prove on a balance of probabilities that he did not know that the package contained controlled drugs. If the jury is in doubt on this issue, they must convict him. This may occur when an accused adduces sufficient evidence to raise a doubt about his guilt but the jury is not convinced on a balance of probabilities that his account is true. Indeed it obliges the court to convict if the version of the accused is as likely to be true as not.” If the trial had taken place after the implementation date of the ECHR Act 1998, a legal burden would have run contrary to the right to a fair trial under Article 6(2). No such protection existed in this case as the trial took place prior to that implementation date. When first considered, it might not seem clear or obvious how a medical professional might come into contact with the criminal law but there are a number of circumstances when this might occur: Medical Professionals and the Criminal Law: Treating victims of crime and torture As a Defendant in the dock (hopefully not!) Statutory reporting upon conviction of a criminal offence to the General Medical Council (GMC), the Nursing and Midwifery Council (NMC), or Health and Care Professions Council (HCPC) Fraud e.g. claiming money for shifts that have not been worked, exaggerating expenses claims and working in unauthorised jobs whilst on sick leave Statement and report writing in criminal cases for the prosecution or for the defence (as an expert or a professional witness of fact) Reports for the CICA (Criminal Injuries Compensation Authority) Giving evidence in court (e.g. Magistrates’ Court, Crown Court, Sheriff’s Court, Coroners’ Court) Assisted suicide cases Please also read the following modules for further information: See Module “Sources of Law for precedent” See Module “Sexual Offences” See Module “Criminal Law - Police Powers” for police powers See Module “Criminal Law: Manslaughter & Murder” See Module “Death & Dying” for the role of the Coroner, euthanasia and doctrine of double effect (DDE) See Module “Sources of Law” for more information about categories of criminal offences. Criminal Procedure Rules: These rules govern the practice and procedure of the Criminal Courts and give binding guidance on the parameters within which Forensic Practitioners adduce evidence to the courts. The Criminal Procedure Rules encourage the parties to agree as many issues as they can, so that by the time a case reaches court, there will only remain key issues in dispute. The Criminal Procedure Rules are arranged to reflect the main stages of a criminal case and are divided into parts. Each part runs consecutively. Parts 1-5 General case management and the overriding objective Parts 6-12 Preliminary proceedings (including commencing proceedings, initial details of the prosecution case, reporting restrictions, allocation, the indictment, deferred prosecution agreements and discontinuing a prosecution) Parts 12-14 Custody and bail Parts 15-17 Disclosure, written witness statements and witness summonses Parts 18-23 Special measures, expert evidence, hearsay, bad character and previous sexual behaviour Parts 24-27 Trial management (including retrial after acquittal) Parts 28-32 Sentencing Part 33 Confiscation and related proceedings Parts 34-44 Appeals in the Magistrates’ Court, Crown Court and Court of Appeal Part 45 Costs Part 46 Representatives Part 47 Investigation orders and warrants Part 48 Contempt of court Part 49 International co-operation Part 50 Extradition The overriding objective of the Criminal Procedure Rules (CrimPR) is that cases are dealt with ‘justly’. This includes acquitting the innocent, convicting the guilty and dealing with the prosecution and defence fairly. The concept of ‘justly’ also means dealing with a case ‘efficiently and expeditiously’. If a party fails to comply with a rule or direction, the CrimPR gives the court power to make a costs order or to impose ‘other sanctions’ as appropriate. The rules are usually amended twice per year – April and October and so it is important to always review them for up to date information and guidance. Please see: Criminal Procedure Rules, Practice Directions and Protocols at: http://www.justice.gov.uk/courts/procedurerules/criminal/rulesmenu-2015#Anchor3 In Scotland, the Criminal Procedure Rules 1996 apply. Further information is available at: https://www.scotcourts.gov.uk/rules-and-practice/rules-ofcourt/criminal-procedure-rules The age of criminal responsibility (ACR) refers to the minimum age that a child can be prosecuted and punished by law for an offence, i.e. the age at which a child will be considered capable of committing a crime and old enough to stand trial for a criminal offence. Their cases are heard in a youth court and their age is taken into consideration at sentencing if they are convicted. The age of criminal responsibility (ACR) in the UK is a devolved matter. The ACR in England, Wales and Northern Ireland is 10 years old, whilst in Scotland it is currently 8 years old. However, in Scotland under the Criminal Justice and Licensing (Scotland) Act 2010, the age at which a child can be prosecuted is 10 years. The Age of Criminal Responsibility (Scotland) Bill is currently seeking to increase the ACR in Scotland to 12 years – this Bill passed Stage 3 on 7th May 2019 (i.e. the next stages before it becomes a part of enacted Scots law is for the Bill to be passed by the Scottish Parliament and then to receive royal assent.) Children below the ACR cannot be arrested or charged, but those above are presumed to be sufficiently mature to stand trial and be as accountable as adults. The ACR of 8 years (Scotland) and 10 years (England, Wales and N. Ireland) is in conflict with international treaties on children’s rights such as the United Nations Convention on the Rights of the Child. Paradoxically, in the UK, children below the age of 18 years are legally not considered mature enough to vote, sit on a jury, buy alcohol, tobacco or fireworks, get a tattoo, or open their own bank account, and those below the age of 16 years cannot consent to sex, leave school, play the lottery or buy a pet – and yet they are deemed mature enough to be criminally tried as much as an adult. With the exception of ‘offences of strict liability’ (see below), there must be both a “mens rea” (i.e. a guilty mind) and an “actus reus” (i.e. a guilty act) and both must be proved before a criminal offence has been committed. This means that the defendant must want to break the law (mens rea) and also actually break it (actus reus). These may also be referred to as the internal and external elements of the offence. In “offences of strict liability”, it is only necessary to prove the actus reus and not the mens rea, as long as it is given that the actions were voluntary e.g. drunk driving: it is not necessary to prove that the defendant meant to drive whilst drunk, only that he did so. Mens rea indicates a culpable state of mind. This is different to ‘motive’. For the mens rea element to be perfected, the act must be voluntary; where a defence such as “automatism” and “reflex actions” are used (see below), this may negate the need to establish a mens rea. For the majority of offences, mens rea will be satisfied if the defendant can be shown to: a. have intended their actions or b. be considered to have been reckless as to whether a consequence would occur or circumstances would exist following their conduct or c. have acted negligently For certain offences of strict liability (see below), no mens rea is required at all. a) Intention: There can be either: Direct intent, where the defendant intends the consequence; Indirect intent, where the consequence is not desired but is virtually certain to happen following his actions. The required degree of foresight may be a relevant issue in such cases. b) Recklessness: Where direct intent involves consequences that may be reasonably foreseen, the defendant may be considered to be acting ‘recklessly’. Nowadays, the notion of recklessness is tested upon “subjectively”1, where the defendant must himself have realised the risk, as opposed to the now obsolete notion of recklessness being tested as what an “ordinary prudent individual” would consider (i.e. “objective test”). In the context of criminal damage, originally the leading case in this area of R v Cunningham [1957] held that a subjective test applied determine recklessness: R v Cunningham [1957] 2 QB 396 CA: “Cunningham Recklessness” Did the defendant foresee the harm that in fact occurred, might occur from his actions, but nevertheless continue regardless of the risk? The appellant ripped a gas meter from the wall in order to steal the money in the meter, causing gas to escape. The gas seeped through small cracks in the wall to the neighbouring property where his future mother-in-law was sleeping and she was poisoned by the gas. He was charged under Section 23 of the Offences against the Person Act 1861 which provides: “Whosoever shall unlawfully and maliciously administer to or cause to be administered to or taken by any other person any poison or other destructive or noxious thing, so as thereby to endanger the life of such person, or so as thereby to inflict upon such person any grievous bodily harm, shall be guilty of felony ...” Cunningham was convicted, with the judge having instructed the jury that for the meaning of “malice” in this context was “wicked” or otherwise “something which he has no business to do and perfectly well knows it.” He successfully appealed this conviction and it was held that “malicious” means either: i. An actual intention to do the particular kind of harm that in fact was done; OR ii. Recklessness as to whether such harm should occur or not (i.e. the accused has foreseen that the particular kind of harm might be done and yet has gone on to take the risk of it). Following case law, it can therefore be stated that the mens rea of “maliciously” means a foresight by the defendant of a risk of some harm occurring. Transferred Malice: a criminal offence is perfected even if the intended consequence befalls a person other than the intended victim. In certain circumstances, a defendant will have the required mens rea against one victim, but will satisfy the actus reus of an offence against a person for whom the mens rea is not satisfied. Although this has been termed “transferred malice” the Supreme Court in 2012 held that the term “transferred mens rea” is more appropriate and accurate: R v Gnango [2012] 2 WLR 17 - the defendant and an opponent had engaged in street battle using guns: his opponent shot an innocent passer-by. . c) Negligence: The test here is objective where the action has fallen below the standard of a reasonable person by doing something that he would not have, or by omitting to do something that he would have done. This notion is relevant in clinical practice. Recently, there has been a particular interest in Gross Negligence Manslaughter and how this applies to clinicians. See the following modules for further information: - Civil Law - Murder & Manslaughter - Regulation of Healthcare Professionals d) Offences of Strict Liability: Offences of strict liability, also known as offences ‘of absolute prohibition’, refer to crimes that do not require proof of mens rea or even negligence in relation to one or more aspects of the actus reus. In cases where there is absolutely no requirement to prove mens rea, it would be a crime of ‘absolute liability’. They are primarily regulatory offences aimed at businesses in relation to health and safety - generally, these will be ‘statutory’, i.e. created by statute as opposed to common law (“judge made law”) offences. They also include many driving offences e.g. speeding and driving without insurance. Determining whether an offence is one of ‘strict liability’ is not always straightforward, and such discussion is outside the scope of this module. For further reading, consult Gammon (Hong Kong) Ltd v Attorney-General of Hong Kong (1985) and “The Gammon Criteria”2 The practical benefits of strict liability are the greater level of protection it provides to the public in areas where it is perceived to be needed Cases that are be considered as “strict liability” include: Regulatory Offences Public Danger Offences Dangerous Drugs Offences Road Traffic Offences Pollution Offences Sale of Food Offences e) Joint Enterprise:3 This denotes the situation where there is more than one person involved in the commission of the crime. Where the various parties are considered “principal offenders” they will all be jointly liable for the offence. These parties will have participated in the actus reus by their own independent act. Secondary Offenders4 would not have been directly responsible for the actus reus, but would have had a part to play as in a ‘supporting role’ either before or at the time of the actus reus. Parts played after the commission of the offence is not considered within the notion of ‘joint liability’. Unless such secondary offenders are charged as ‘accessories to the act’, they will be treated as if they were principal offenders and are jointly liable, albeit that there may be some discretion in sentencing. There may, however, be “innocent agents” where an apparent perpetrator lacked mens rea. This may happen, for example, if the perpetrator honestly believed that the act in question was totally legal. The consequence of conviction within a joint enterprise is that, even though it may not be clear who committed, e.g. a murder, all parties will be guilty of committing the murder. R v Lane and Lane 82 Cr App R 5 (1986) and reaffirmed in R v Aston and Mason 94 Cr App R 180 (1992) The Concept of “Joint Enterprise” The concept of joint enterprise applies throughout the criminal law and not just to cases of homicide. The principle is that if two individuals are jointly indicted for a criminal offence and on the evidence, there is nothing to suggest they were acting together or evidentially there is nothing to favour one defendant over the other, the jury should be directed to acquit both. All parties in a joint enterprise are guilty of crimes committed by any of the parties. Before a defendant can be considered as a joint principal: He must have foreseen that the principal would commit the actus reus and would do so with the requisite mens rea for that offence. The principal must act ‘within the scope of the joint enterprise’ f) Liability of Secondary Parties: Secondary Liability: there is no need for any agreement between two parties that one of the parties will commit an offence. Consider, for example, S, a shopkeeper, sells B an article knowing that B will use it to commit burglary: - B uses the article to commit burglary. - S is also guilty of burglary even though he may have hoped that B would not go on to commit the offence. Moreover, in ordinary cases of aiding and abetting, S must help or encourage the commission of the crime committed by B. Here it must be proved the secondary party acted by: Aiding (i.e. assisting the principal to commit the offence) Abetting (i.e. providing encouragement to the principal at the time of the offence. The abettor will be present at the time of the offence)5, 6 Counselling (i.e. giving advice before the commission of the offence. The counsellor therefore may not have been present at the time of the offence)7 Procuring (i.e. to “produce by endeavour”; to ensure that something happened and take steps to produce the outcome. Note that the principal may not know about the procurement)8 and the secondary party must have some knowledge of the circumstances that constitute the offence. Note: Acquittal of the principal offender due to lack of mens rea does not necessarily lead to acquittal of other parties, whereas acquittal due to lack of proven actus reus will result in acquittal of all parties. Defences mounted in such cases are outside the scope of this module. For further, please see R v Anderson; R v Morris 2 QB110 [1966] CLY 2603 Commission and Omission: on occasions, the actus reus will require consequences. An example of this would be the charge of murder, where an act must be committed, and the victim must die. Additionally, the actus reus may be an omission rather than a commission, for example: Failure to provide a breath specimen Failing to act where there is an obligation to act. It is also necessary to prove that the act caused the consequence “to a significant effect” (i.e. the “de minimis principle” – see below), which must be proved both ‘in fact’ and ‘in law’. Additionally, there must be a ‘chain of causation’ between the act and the consequence; i.e. without unforeseeable ‘intervening acts’ (unconnected with the Defendant’s actions) that ultimately caused the prohibited consequence. It is noteworthy that, in cases of murder or manslaughter, courts are generally unwilling to accept ‘medical negligence’ as an intervening act breaking the chain of causation, where there was an initial unlawful act. De Minimis Principle: A legal term meaning too small to be meaningful or to be taken into consideration. This indicates situations where no offence has actually been committed, but D has taken steps to commit it9. This notion applies to both indictable and either way offences, but no summary offences where it is not an offence to ‘attempt to’ commit a summary offence. Inchoate Offences can be: A. Attempting to commit an offence B. Conspiring to commit an offence C. Assisting or encouraging (inciting) someone to commit an offence A. Attempt i. The actus reus must be more than merely preparatory and “attempt” is a crime of specific intent, and the decision as to whether this is the case is for the jury to make. ii. The mens rea must involve the intention to commit an offence. The tests involved are clarified in R v Gullefer [1990] 1 W.L.R. 1063: The defendant, Gullefer, seeing that the dog he had backed in a greyhound race was losing, jumped onto the track, attempted to distract the dogs by waving his arms hoping that the stewards would declare “no race” and he would recover his £18 bet. He was convicted of attempted theft and appealed on the ground that his acts were not sufficiently proximate to the completed offence of theft to be capable of comprising an attempt to commit theft. His conviction was quashed. Lord Lane CJ questioned: “Might it properly be said that when he jumped on to the track he was trying to steal £18 from the bookmaker? He had not gone beyond mere preparation. It remained for him to go to the bookmaker and demand his money.” Tests that have been applied include: Proximity (i.e. were D’s acts so immediately connected to the offence. This was used prior to the Criminal Attempt Act 1981) Rubicon (i.e. the proximity could be gauged by whether the acts constituted ‘a fixed irrevocable intention’ to commit the offence; ‘to have crossed the Rubicon’)10 Series of acts (i.e. it is an act done within a series of acts that would have perfected the offence if the series of act had been completed)11 Note: it is not possible to ‘attempt to’ commit an offence that is committed by omission. B. Conspiracy This notion is governed by both statute (mainly the Criminal Law Act 1977 England and Wales) and common law (i.e. to defraud, to corrupt public morals and to outrage public decency). The actus reus for a conspiracy must include: The making of an Agreement … with a person or persons …to carry out a course of conduct which will amount to a criminal offence by at least one party The mens rea must include: Knowledge or Intention to carry out a course of conduct which amounts to and offence C. Inciting to Commit a Crime:12 This ‘incitement’ indicates advising encouraging inducing threatening pressuring a person to commit a crime. Note: that the crime need not be completed. There are also still specific incitement offences such as inciting a child to engage in sexual activity [Sexual Offences Act 2003 s10] and soliciting murder [Offences Against the Person Act 1861] The Serious Crime Act 2007 (England, Wales, N. Ireland, and Scotland) indicates that the offences are doing an act capable of encouraging or assisting the commission of: an offence with intent to encourage or assist an offence , believing that it will be committed and believing that the act will encourage or assist one or more offences, believing that one or more of them will be committed and believing that the act will encourage or assis In criminal cases, the Prosecution must prove that the defendant is guilty beyond a reasonable doubt, and the defence should adduce sufficient evidence for the trial judge to leave the judgement to the jury. On occasions the defence are left with a ‘reverse onus’ where they must prove some aspect of the defence on ‘the balance of probabilities’. On occasions (See R v Galbraith [1082] 1 WRL 1039), where the prosecution has failed to prove the defendant’s guilt an application can be made at the completion of the prosecution evidence (and before any defence evidence) by the Defence to acquit. This can be where 1. There is no evidence that a crime has been committed Or 2. The evidence is so tenuous or inconsistent that a correctly directed jury could not properly convict i. Insanity (Insane Automatism) The M’Naghten Rules of 1843: These are generally considered as unsatisfactory and are subject of discussion of change. They state that everyone is presumed to be sane until proven otherwise. To prove “insanity”, the defendant must show on a balance of probabilities (i.e. the “reverse onus”) that: “… at the time of committing the act the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong”. The three elements to be proven are: 1. Defect of Reason… he must be deprived the ‘power of reason’13 2. Disease of the Mind… that affect the Defendant’s mental faculties, due to an ‘internal factor’14 (as opposed to an external factor, which may indicate automatism). Interestingly sleepwalking due to an ‘internal factor’ may be a disease of the mind, whereas if it is due to an ‘external factor’, it may be considered as automatism. 3. Knowledge … where (i) D does not understand the physical nature and quality of the act or (ii) D considers that his actions were morally right.15 ii. Automatism (Non-Insane Automatism): Absence of Voluntary Control Caused by an External Factor Self-Induced Automatism Note: a finding of “not guilty by reason of insanity” is not a conviction, but the court must make a ‘Hospital Order’, a ‘Supervision Order’, or an “Absolute Discharge”.Thus common mental capacity defences include ‘Diminished Responsibility’ and ‘Automatism’. (As noted above, automatism 16 is where D is unable to control his actions because of some reason other than insanity. There must be total loss of voluntary control, caused by an ‘external factor’). Automatism negates the mens rea. It must be due to an ‘external factor’. Self-Induced Automatism17: This could be due to intoxication by alcohol or drugs. In such a situation, automatism is no defence, unless in cases of “crimes of specific intent”. It is taken that D would have been reckless, disregarding the effects of the intoxication which might make him, for example, aggressive or unpredictable. Where automatism is raised as a defence, it will be incumbent on the defence to raise some expert medical evidence of this with expert medical evidence. Where D pleads automatism, it is incumbent on the prosecution to disprove this (beyond reasonable doubt), whereas where D pleads Insanity, it is incumbent upon the Defence to prove such on balance of probabilities (reverse onus). A successful defence due to Automatism will result in an outright acquittal, whereas a successful defence due to Insanity will result in one of a number of specific disposals. For further information on insanity and automatism, please see Module “Criminal Law: Manslaughter & Murder” iii. Mistake:18 D may plead that he acted under an honest misapprehension and so selfdefence may be put forward in the case where D thought that he was going to be shot, even though he was not. In such a case, the mens rea may be negated. Note: a mistake of fact, brought about by voluntary intoxication, will not negate mens rea in cases of the use of force. Within all this, it remains that “ignorance of the law is not excuse”. iv. Intoxication As a strong generalisation, “a drunken intent is still an intent”.19 However, if D is intoxicated and performs the actus reus, but the intoxication causes D to lack mens rea (in a crime of specific intent), then a defence may be possible. Remember that intoxication cannot be a defence in offences of strict liability (such as within Road Traffic legislation), where a mens rea is not required. Voluntary intoxication20 Crimes of specific intent are crimes that require ‘proof of an intention’. Crimes where mens rea can be satisfied by recklessness would be crimes of basic intent. Murder and all ‘attempted crimes’ are of specific intent. Within the Offences Against the Person Act (1861) (see below), a section 18 offence of Causing Grievous Bodily Harm with Intent, would be of specific intent, whereas a section 20 offence of Causing Grievous Bodily Harm would be of basic intent. N.B. there is not always considered to be a clearly cut demarcation regarding alcohol intoxication and mens rea between crimes of basic and specific intent, and much reliance is placed on precedence. There is oftentimes the consideration that a person who has become voluntarily intoxicated is leaving himself open to the commission of reckless acts, due to his intoxication. In cases where D took alcohol to gain ‘Dutch Courage’ to commit a crime, it cannot be argued that the intoxication negated any mens rea. Involuntary Intoxication21 This indicates cases where D’s drink is ‘spiked’. This may negate mens rea, even in cases of basic intent crimes v. Self-Defence Self-Defence covers defence of oneself, others, property, preventing crime and assisting lawful arrest. D has such a defence available when he uses ‘reasonable force’: Necessity… it must be shown that force as necessary.22 Reasonable… this refers to the amount of force used, and this is judged objectively in the circumstances that he (subjectively) believed them to be.23 Proportionate…. The force must be considered proportionate, in the circumstances as D considered them to be.24 Householder Cases…. Where D is protecting himself against intruders, the amount of force used need not be ‘proportionate’ as long as it is not ‘grossly disproportionate’.25 vi. Consent: An actus reus may not be complete where there is consent. This may relate to sexual crimes (see Module 6) and also violent crimes (see below and Module 8). vii. Duress Here there may be a defence where D has a mens rea and completes the actus reus, but is acting under threat against himself or someone close to him. It is not a defence in cases of murder or attempted murder. A perceived threat of death or serious injury must be present,26 and The threats must be against D or someone D has responsibility for27 and D must have a reasonable belief and good cause to fear such threat28 and There must be a causal effect between the threat and the crime29 and There must be an immediacy of the threat30 and D must not have placed himself in a situation where there would be voluntary exposure to such duress31 viii. Necessity On occasions, an actus reus may be performed through perceived necessity. Requirements here are: The act must be needed to avoid inevitable and irreparable evil No more should be done than is reasonably necessary for the purpose to be achieved The evil inflicted must not be disproportionate to the evil avoided. These encompass common law assault and battery and the various assault offences under the Offences Against the Person Act (OAP) (1861) (England, Wales and Northern Ireland): S 47 Assault Occasioning Actual Bodily Harm S 20 Wounding or Inflicting Grievous Bodily Harm S 18 Wounding of Inflicting Grievous Bodily Harm with Intent Assault and battery have no statutory definition: the definition and all elements of the offence of assault are set out in case law. In Scotland, criminal law relies heavily on common law including assaults such as assault and culpable and reckless injury. Common assault - or assault - under section 39 of the Criminal Justice Act 1988 is a summary offence (i.e. only heard in Magistrates’ Court). The maximum sentence for common assault is six months imprisonment If the assault is racially or religiously aggravated, the maximum sentence is two years imprisonment and cases can be heard in the Crown Court as well. The actus reus is ‘putting someone in fear’ and does not require a traumatic insult. It is sufficient that the victim believes that violence might be inflicted and that it might be inflicted immediately.32 The mens rea is an intention to cause the victim to fear immediate violence. Assault is committed if a person “intentionally or recklessly causes another person to apprehend immediate and unlawful personal violence” (House of Lords judgement in Fagan v MPC [1969] 1 QB) In Scotland, assault is defined as “an attack upon the person of another” The sentence for an assault conviction is a maximum 6 months imprisonment and/or a fine, as set out in statute under section 39 Criminal Justice Act 1988. This indicates any direct force; even the merest touch, which must be hostile, but not necessarily violent – quite often it does not result in injuries or results in just minor injuries Entails direct and indirect physical contact, which is non-consensual Defined as “the unlawful application of force by the defendant upon the victim” – Lord Steyn in R v Ireland [1997] 3 WLR 534 The mens rea is an intention to apply force. The actus reus is the unlawful application of force Battery is a common law offence in England and Wales, whilst in Scotland there is no distinction between battery and assault. In N. Ireland assault is a summary offence under section 47 of the OAP Act 1861, and common assault and battery are summary offences under S42 of the OAP Act 1861. If violence is used in a common assault, it is called a “battery” and the perpetrator would be charged with “assault by beating”. This does not however, mean that the victim was actually ‘beaten up’ or even hit or kicked – it could be that they were pushed, grabbed or spat at. The victim may not therefore have suffered any physical injury, and if any injury was caused, it would need to be quite minor to fall under common assault. This is a complex and comprehensive piece of legislation dating from Victorian times which still has statutory authority although some of the sections of the Act may seem rather archaic. In forensic medical practice, it is important to be familiar with a number of the sections of the Act but in particular sections 47, 18 and 20, which relate to wounding or causing grievous bodily harm. S 47 Occasioning Actual Bodily Harm The assault (which can be intentional or reckless as above) must have caused some physical harm to the victim: does not need to be serious or permanent but must be more than trifling or transient Some psychiatric harm can also be covered by this offence, but must be more than just fear or anxiety Also includes cutting off of hair In general, however, someone who causes no injury or injuries which are not serious is likely to be charged with common assault. Triable either way i.e. can be heard in the Magistrates’ Courts or Crown Court with a maximum sentence of five years imprisonment Actus reus: actual bodily harm (ABH) indicates ‘any hurt or injury calculated to interfere with the health and comfort of the victim’. 33 There must be a chain of causation between the act and the injury, which must be a foreseeable consequence of D’s action. The mens rea is intention or reckless (subjective) as to the assault or battery, and it is not necessary to have the intention to cause ‘bodily harm’. S 20 Unlawful Wounding or Causing Grievous Bodily Harm (GBH) GBH is serious physical harm although it does not have to be permanent or dangerous. It can also comprise psychiatric injury or someone passing on an infection, such as through sexual activity. This includes ‘wounding’ (i.e. causing a complete breach of the skin)34 and also ‘grievous bodily harm’ (i.e. ‘really serious harm’ or ‘serious bodily harm’)35 – i.e. requires the breaking of the skin/the inner skin (e.g. within the lip) but does not include the rupturing of blood vessels. Note: a wound therefore indicates either an incision (incised wound) or a laceration (lacerated wound), but not bruising or abrasion. The OAP Act 1861 is used in England and Wales to prosecute people for HIV transmission under the sections of the OAPA 1861 on ‘grievous bodily harm’. There are two possible offences – “reckless transmission” (under section 20) and “intentional transmission” (under section 18 – see below). In Scotland, HIV transmission or exposure is prosecuted as “culpable and reckless conduct” which is a common law offence. Under common law, this is when there is evidence that a person displayed ‘criminal negligence and indifference’ as to whether they could pass HIV on, i.e. they understood the risks but behaved ‘recklessly’ by not taking any action to protect or lessen the impact on the other person. If there is evidence that a person intentionally set out to transmit HIV to another person, assault laws (also common law) could be used to prosecute them. Actus reus: To unlawfully wound or inflict GBH on another person. It is up to the jury to decide if the injury in the particular case is ‘really serious’. This may be physical or psychiatric. In cases of ‘GBH’ by psychiatric harm, expert psychiatric evidence will be required.36 The mens rea for a S 20 offence is satisfied where D intended bodily harm, although it is not necessary that he intended the harm to be serious. Subjective recklessness (‘Cunningham Recklessness’) would suffice for mens rea in S20 cases i.e. even if minor harm was intended but serious injury resulted, someone could be charged with this offence. Triable either way i.e. can be heard in the Magistrates’ Courts or Crown Court with a maximum sentence of five years imprisonment. S 18 Wounding or Causing Grievous Bodily Harm with Intent This is the most serious of the assault offences and involves situations in which someone intended to cause very serious harm to the victim. Here, the essential difference to S 20 is that D must be shown to have had “the intent” to cause serious bodily harm to the victim, as opposed to the intent to cause some harm. The actus reus is as for S 20 above i.e. unlawfully wound or inflict GBH on another person The mens rea is: an intent to cause Grievous Bodily Harm37 or an intent to resist or prevent a lawful arrest.38 The offence can take on four different forms: wounding with intent to do grievous bodily harm; causing grievous bodily harm with intent to do so; maliciously wounding with intent to resist or prevent the lawful apprehension etc. of any person; maliciously causing grievous bodily harm with intent to resist or prevent lawful apprehension etc. of any person. Note that an intention to wound is not sufficient, as the injury must be grievous. Note S 18 (as opposed to S 47 or S 20) is a crime of specific intent and so D may argue that voluntary intoxication negated the mens rea. Suggested reading: Sentencing Council “Assault Definitive Guideline” https://www.sentencingcouncil.org.uk/wp-content/uploads/Assaultdefinitive-guideline-Web.pdf *OAP = Offences Against the Person Act 1861 **Penalties for OAP correct as at May 2019 Regarding the Offences Against the Person Act 1961): For up to date sentencing guidelines please see - “Sentencing Guidelines” www.sentencingcouncil.org.uk/wpcontent/uploads/Assault_definitive_guideline_-_Crown_Court.pdf Amidst the increasing incidence of emergency workers having to defend themselves from assault and harassment and the need for them to be able to work without the fear of being assaulted, a new law has been passed making it a specific crime to commit a common assault, or battery, against an emergency worker “acting in the exercise of functions as such a worker”. An emergency worker under this act includes police officers, prison guards, ambulance workers, NHS staff and firefighters. The Assaults on Emergency Workers (Offences) Act 2018 received Royal Assent on 13 September 2018 and came into force in November 2018. Any common assault and/or battery on an emergency services worker (both NHS and those employed in services which support the provision of NHS services) is also now indictable and subject to a maximum of 12 months (rather than 6 months) if tried on indictment. The Scottish equivalent – Emergency Workers (Scotland) Act 2005 - makes it a specific offence to assault, obstruct or hinder someone providing an emergency service or assisting an emergency worker in an emergency situation. This also extends protections to social workers enforcing child protection orders or carrying out mental health assessments. The maximum penalty under this Act is nine months' imprisonment, a fine of £5,000, or both. a. Homicide Murder: in Scotland, under Scots law, murder occurs where a person kills another either intentionally or with wicked recklessness. There are possible defences to a charge of murder, such as self-defence and, in the absence of such defences, there may be mitigating factors such as provocation which may reduce the charge to one of culpable homicide. Attempted murder involves an attempt to take the life of another without death, but with an intention to kill or reckless disregard for the life of the other person. Culpable homicide: culpable homicide in Scots law is an act or failure to act which causes death. It is a less serious charge than murder and can result in a lesser sentence. Causing death by dangerous driving: Road Traffic Act 1988, s 1 Causing death by careless driving while under the influence of drink or drugs: Road Traffic Act 1991 Causing Death by careless driving: Road Safety Act 2006 Illegal driver involved in a fatal accident Corporate homicide: can be committed only by a corporation or other type of organisation under the Corporate Manslaughter and Corporate Homicide Act 2007. (The types of organisation which can commit the offences are set out in s 1(2) of this Act) b. Non-fatal crimes A comparison with England, Wales and Northern Ireland: England, Wales & Northern Ireland Offences Against the Person 1861 S 47 Scotland Common Law Assault Occasioning Actual Bodily Harm Assault to injury; Assault to severe injury Offences Against the Person 1861 S 47 & Common Law S20 Wounding or Inflicting Grievous Bodily Assault to injury; Assault Harm to severe injury Offences Against the Person 1861 S 47 Common Law Wounding or Inflicting Grievous Bodily Assault to injury; Assault Harm with Intent to severe injury S39 Criminal Justice Act Common Assault Battery – common law Manslaughter Culpable homicide common law Murder – common law Murder – Common law Attempted murder – common law Attempted murder common law Common Assault – – Assault – this is defined in Scottish law as a physical attack on another which is intended to cause bodily injury or which puts the victim in a state of fear that he or she may be about to suffer bodily injury. In Scotland, an ‘assault’ cannot be committed by words alone, nor can it be committed by accident. Assault includes gestures towards another which are physically threatening where a person anticipates being harmed (e.g. the pointing of a gun at someone). Aggravated assault – an assault becomes aggravated if the crime has been exacerbated by some factor. Common aggravations include: severe injury, permanent disfigurement/scarring or an assault which places the person’s life in danger if the assault took place in the victim’s home or workplace o if a weapon was used If there is a racial, sectarian or religious aspect to the offence. The main defences are: Self-defence: this is available as a defence to an accused where they have acted to protect themselves or another from the immediate threat of physical injury to their person. Before a plea of self-defence will be accepted, the court must be satisfied that the actions used in self-defence were necessary and proportionate, and that no means of escape were available. Provocation: this is not a full defence to a charge of assault but can, if established, mitigate or reduce any sentence which the Court imposes. The greater the degree of provocation, the more allowance should be made for it in terms of the assessment of the appropriate sentence by a Justice of the Peace, Sheriff or Judge. Culpable and Reckless Conduct “Culpable and reckless acts – causing injury to others or creating a risk of injury” These encompass a broad range, extending from “assault” which also causes injury. However, assault is a crime of intent. There is no need to prove that there was any injury at all. The test is that the accused person acted in total disregard of the consequences of his or her actions - the degree of reckless behaviour must be severe. Essentially there are two types of offence: Reckless injury - Actus reus – the reckless conduct which caused the actual injury. See HMA v Harris 1993 JC 150 Reckless endangerment - See MacPhail v Clark 1983 SLT (Sh Ct) 37 and Normand v Morrison 1993 SCCR 207 Sentencing for Assault in Scotland Criminal cases are dealt with in different courts depending on how serious they are. It is usually up to the procurator fiscal (prosecutor) to decide what court a case will be heard in. Maximum penalties are set by law for each court a case will be heard in. A sheriff court can hear summary (less serious) or solemn more serious) proceedings. *community based sentences are available in all court If a sheriff in a solemn case decides that the maximum sentence at the Sheriff Court level is not high enough, they can send (remit) the case to the High Court for sentence. Assault and offences against the person cases are usually heard in the higher courts depending on the severity of the assault (i.e. not the Justice of the Peace Court). For further information please visit the Scottish Sentencing Council at https://www.scottishsentencingcouncil.org.uk/ This indicates an ‘unlawful killing’ (i.e. not the killing of an enemy in battle during war). These are categorised as: 1. Murder 2. Manslaughter Voluntary Manslaughter Involuntary Manslaughter Corporate Manslaughter 3. Causing Death by Driving 4. Causing/Allowing the Death of a Child or Vulnerable Adult For further information on insanity and automatism, please see Module “Criminal Law: Manslaughter & Murder” 8.1 Killing a Child or Vulnerable Adult: This is legislated for under the Domestic Violence, Crime and Victims Act 2004 (England, Wales and N. Ireland). Note: a “child” in this piece of legislation is a person under 16 years of age; a “vulnerable adult” is a person over 16 years whose ability to defend themselves from violence, abuse or neglect, is significantly impaired through physical or mental disability or illness, through old age or otherwise.) The actus reus:40 V died as a result of an unlawful act by D, living in the same household as, and having frequent contact with V D was such a personAt the time of the offence, there was a significant risk of physical harm being caused to V by D 8.2 Causing Death by Driving: The Road Traffic Act 198841 has been amended over the years to include: 1. Causing Death by Dangerous Driving 2. Causing Death by Careless Driving, whilst unfit through Drink or Drugs 3. Causing Death by Careless or Inconsiderate Driving 4. Causing Death by driving whilst unlicensed, disqualified or uninsured. Regarding the Offences Against the Person Act 1961): Suggested reading - “Sentencing Guidelines” www.sentencingcouncil.org.uk/wp-content/uploads/Assault_definitive_guideline__Crown_Court.pdf Please also read the following modules for further information: See Module “Sources of Law” for precedent See Module “Sexual Offences” See Module “Criminal Law” - Police Powers for police powers See Module “Criminal Law: Manslaughter & Murder” See Module “Death & Dying” for the role of the Coroner, euthanasia and doctrine of double effect (DDE)