Criminal Liability - PowerPoint Presentation

Criminal Liability 2014 Feedback

Q1 - Explain the meaning of the term “causation” in criminal law (8) Causation is part of the Actus Reus of the crime. The prosecution must prove both factual and legal causation in all result crimes Factual Causation D is only guilty if the consequence would not have happened “but for” his act. Then explain using one of the following cases: White – D put poison in his mother’s drink, intending to kill her. She died shortly after of a heart attack before poison had taken effect. Whilst D intended to kill her and she had died, he had not caused her death and she would have died regardless of his actions, therefore not guilty of murder Pagett – D used his girlfriend as a human shield while he shot at armed police. Police fired back and killed girlfriend. D convicted of girlfriend’s manslaughter as she would not have died “but for” his actions Legal Causation Link between act and the consequence is the “chain of causation” and must remain unbroken D’s actions must be the operating and substantial cause - Smith –V received a stab wound that pierced his lung. V taken to medical station where he died an hour later. V had been dropped twice while being carried to the medical station, medical officer did not realise the serious extent of the wounds, the treatment he gave him was “thoroughly bad and might well have affected his chances of recovery”. Court held that D’s actions were still the operating and substantial cause of death as V died from loss of blood caused by stab wounds inflicted by D – no break in chain Novus Actus Interveniens of Third Party can break the chain of causation – e.g. medical negligence - Jordan – D stabbed V. V taken to hospital. A week later, wound was almost healed, doctors gave V an incorrect injection and he died. As medical treatment was “palpably wrong” chain of causation was broken –original injury was not the operating and substantial cause of death. Medical negligence will only be NAI if “palpably wrong” Novus Actus Interveniens by Victim can break the chain of causation if it is reasonably foreseeable – one of following cases: Roberts – girl was a passenger in D’s car and injured herself by jumping out of the car while it was moving. D had made sexual advances to her and was trying to pull her coat off. D convicted for injuries – court held that the result was the reasonably foreseeable consequence of what D was doing and therefore didn’t break chain of causation Williams – D gave a lift to a hitch-hiker (V). D allegedly tried to rob V who jumped from the moving car and died from head injuries. Held that V’s act was a NAI and broke the chain of causation as it was voluntary and unreasonable and therefore broke the chain of causation The “Thin Skull” Rule - If victim has an underlying physical condition or religious belief that will make injuries worse, D is still liable for full extent of injuries. Blaue – D stabbed V who was a Jehovah’s Witness. V rushed to hospital where doctors told her she would die if she did not have a blood transfusion. V refused on religious grounds and died from wounds shortly after. Court held that D had to take his victim as he found her and therefore liable for full extent of injuries

Q 2 Explain, using three examples, how an omission can be the basis of the actus reus of a crime (7) General description : Usually a person is not liable for omissions (as there would be no AR – guilty act) There are some exceptions where there is a duty to act Example 1 - Contractual Duty Pittwood – D employed as a gatekeeper at a railway crossing. D went for lunch leaving the gate open. A cart crossing the line was hit by the train and one man in the cart was killed. D convicted on manslaughter based on failure (omission) to carry out his duty to close the gate, which was part of his contract of employment – there will be a duty to act when it is part on one’s contract which can mean an omission to act could form the AR of an offence Example 2 - Where person’s public position requires him to act Dytham – uniformed police officer saw a man who ended up being kicked to death and took no steps to stop the attack and drove away when it was over – convicted of misconduct in a public office as he had omitted to act to protect the victim Example 3 – creation of a dangerous situation Miller – D had been squatting in a house and fell asleep on a mattress while smoking a cigarette. He was awoken by the flames, but instead of putting the fire out, he simply got up and went into another room, where he found another mattress and went back to sleep. House was damaged in the fire. D convicted of criminal damage as once he awoke and realised what had happened, he had a duty to minimise the harmful effects of the fire, which was a dangerous situation he had created, which he had omitted to do

Q3 Explain the Actus Reus and the mens rea of the offence of assault occaioning actual bodily harm under s47 Offences Against the Person Act 1861 and discuss how this offence could be applied to Edward’s injury (10) David could be liable under S.47 Offences Against the Persons Act 1861 (OAPA) for assault occasioning actual bodily harm W e must first determine that there has been an assault, and this can either be an assault or battery. In this case it is a battery which is defined in Ireland as the application of unlawful physical force to another. T here must be force and “any touching of another person, however slight, may amount to battery” ( Collins v Willcock )., which in this case there is as we are told David’s punch hit Edward lightly on the chest We also need to show that the force applied was unlawful, which usually means without the consent of the victim (V ), and Edward did not consent to being punched The Mens Rea for battery is intent or subjective recklessness to apply force to another ( Venna ) and D does not need any intent or recklessness as to harm – only the unlawful force . We are told that David intended not to make any contact and therefore does not have direct intent. However, Edward could be subjectively reckless which, as defined in Cunningham means D foresaw a risk but took it anyway. By throwing a punch towards Edward, David must have foreseen the risk of making contact but took that risk anyway. T he assault or battery must occasion actual bodily harm and this is an issue of causation, which means that the harm must be caused by the initial battery. Both factual and legal causation are satisfied as Edward would not be injured but for David’s punch which is the operating and substantial cause of Edward’s injury. Even though Edward had an existing injury to his chest which David did not know about and which made the injury worse, under the thin skull rule in Blaue , David must take his victim as he finds him which means that David’s punch caused the full extent of Edward’s injury’s There must be some form of physical or psychiatric injury caused to V. This can include “ any hurt or injury calculated to interfere with the health or comfort of the victim” but must be more than “transient or trifling” ( Miller) and also harm which is more than trivial (Chan Fook ), and as Edward suffered considerable pain in his chest for several days afterwrards , this would be considered to be more than transient and not trivial. The case of Roberts confirmed that the only Mens Rea required for S.47 OAPA is the mens rea for the original assault or battery and there is no need for D to foresee or be reckless to any harm. Therefore , as mens rea for the battery has been established, this would apply here, even though it is highly unlikely that David foresaw or was reckless to the harm suffered by Edward. David would therefore most likely be liable for S.47 OAPA for Edward’s injury.

Q4 Outline the actus reus and mens rea of the offence of inflicting grievious bodily harm under s20 Offences Against the Person Act 1861 and the principle of transferred malice. Discuss whether this offence and the principle of transferred malice could be applied to Olivia’s injury S.20 Offences Against the Persons Act 1861 defines inflicting grievous bodily harm as to “Unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person, either with or without any weapon or instrument” The first element is that there must be an unlawful wounding or unlawful infliction of GBH. In this case we would be looking at GBH. GBH is defined in Saunders as serious harm. From Burstow we know there is no need for an assault or battery and no need to apply direct or indirect force. The infliction of GBH must also be unlawful which will usually mean without consent or lawful excuse. We are told that Olivia suffers a badly broken leg which amounts to serious harm and it does not matter that there is no direct force from David to Olivia. There is also no consent from Olivia and no lawful excuse for the infliction of GBH. The MR for S.20 is that the wounding or GBH must be done maliciously. In Cunningham it was held that maliciously means D must intend to inflict the harm or be subjectively reckless as to whether such harm will occur, which was confirmed in Savage. In Mowatt it was established that D only needs MR for some harm, not serious harm. In the previous question we established that David was subjectively reckless for the battery but for him to be subjectively reckless under S.20, he must have foreseen the risk of some harm to Edward. Arguably by throwing a punch towards Edward, David must have foreseen the risk of harm but took it anyway and therefore has the necessary MR for S.20. However, David’s MR is towards Edward and not towards Olivia, but the rules of transferred malice may apply, which is where D’s MR is transferred from the intended V to actual V. In Mitchell D became involved in an argument while queuing at the post office. He pushed an elderly man, causing him to fall accidentally onto an elderly woman, who died from her injuries. Court held although there was no direct contact between D and V, she was injured as a direct result of her actions, and MR was transferred to V However, if the offence on the new V is different to that which was intended, there is no MR, such as in Pembilton where D threw a stone at his intended V but missed and broke a window. The MR of intending to cause harm to V was not transferred to the window as this was a different offence. In this case, if we are satisfied that David has MR for S.20 towards Edward, then this will transfer to Olivia and will make David liable for her injuries as these are of the same type. However, if we conclude that David did not foresee the risk of some harm to David, then transferred malice will not apply for his MR for battery on Edward to Olivia as this is for a different offence, and therefore David will not be liable under S20 towards Olivia

Outline the aims of sentencing and briefly discuss how these aims might apply if X were to be convicted of any offence (5) S.142 Criminal Justice Act 2003 – requires judges and magistrates to have regard for: The punishment, reduction of crime, reform and rehabilitation, protection of the public, reparation by offenders Retribution - Based on the idea of revenge. Many individuals, and often society as a whole, feel better that someone has gone to prison for a long time Deterrence Individual deterrence - Where the sentence is designed to make the offender not wish to re-offend for fear of suffering the same or worse punishment General deterrence - Where the prospect of potential punishment dissuades most people from offending Prevention of Crime - Protects the public Rehabilitation - Offering offenders help to overcome problems that they face, attempting to make it easier to avoid future offending Apply to facts

Assume that X has been convicted of S.47. Outline the range of sentences that would be available to the court (5) Give the maximum sentence of the offence D has been convicted of Custodial Sentences - Most serious sentence, reserved for the most serious crimes. The sentence represents the maximum amount of time the offender will remain in prison Prison sentence can be suspended – sentence will not take effect unless there is a subsequent offence within a specified period of time Community Sentences - Combine punishment with changing the offender’s behaviour and making amends. Give a couple of examples of: Compulsory (unpaid) work – Offender works up to 300 hours on local community projects e.g. cleaning up graffiti Programmes – aimed at changing offender’s behaviour e.g. anger management Curfew – offender must be at home at certain times. Usually wear an electronic tag on wrist or ankle to notify monitoring services if he is absent during those hours Drug treatment and testing, alcohol treatment Supervision – offender required to attend appointments with an Offender Manager from Probation Service Financial Sentences - Can be a fixed penalty e.g. fixed penalty speeding fine. Or can be given subject to a statutory maximum for the offence Compensation orders – these are different to fines as they are paid to the victim rather than the state and is designed to repay the victim e.g. for damage to property Discharge: Absolute Discharge – court decides to take no further action against an offender, but the discharge will appear on the offender’s criminal record Conditional Discharge – D is convicted without sentence on condition that he does not re-offend within a specified period of time – can be between 6 months and 2 years. If another offence is committed during this time, the court can look at the old offence as well as the new one in deciding the sentence to impose