English Criminal Law

From Wikibooks, open books for an open world
Jump to: navigation, search


This book was started for use by anyone wishing to gain background knowledge of criminal law or indeed anyone who is studying criminal law. It is aimed at an A-Level audience, who have prior knowledge of the legal system, to provide a light read along with some of the more precise & heavy books available.

This book uses several conventions which are assumed to be known to the intended audience of this book.

What constitutes a Crime[edit]

The layman's answer would be something along the lines of actions that are in opposition to the laws (statutes) that govern the country. Law students who begin their studies in Criminal Law will grow to realise that a "crime" constitutes many facets which go beyond the "bad act" itself (the actus reus). In looking at whether a person is a "criminal", one has to look at the mental state the person had while committing the crime(his "mens rea"). It would be worthwhile to remember that every person charged with a crime is presumed innocent until proven guilty.

Basic Principles of Criminal Law[edit]

Procedural Issues[edit]

Criminal law is based on the theory that the defendant is innocent until proven guilty. In the England and Wales it is the job of the Crown Prosecution Service (CPS) to prove the guilt of the accused in most cases. It is the job of the defendant's solicitor or barrister to prepare and submit a defence. This is done in court by testing the strength of the evidence against the defendant using methods such as discrediting witnesses or challenging the legality of evidence e.g. a stop and search carried out by a police constable was not lawful according to the rules under section 2 of the Police and Criminal Evidence Act 1984. The court must be satisfied that the defendant is guilty beyond reasonable doubt before a conviction can be achieved. All of these elements are derived from the Rule of Law which exists to protect personal liberty, an idea originally conceived by Dicey.

It is obvious to see that in theory, if not entirely in practice, it is hard for the accused to be convicted of a crime; more importantly a crime that the accused did not himself commit. This may seem weighted too far on the side of the accused. However, it is answered by a basic principle of English criminal law: "it is better to release five criminals than it is to convict one innocent".

Actus Reus & Mens Rea[edit]

Introduction[edit]

In order to establish whether a criminal offence has been committed, we must first establish what the components (often known as "elements") of that offence are. As an example, Theft is defined in s. 1 Theft Act 1968: A man shall be guilty of theft if he dishonestly appropriates property belonging to another, with the intention to permanently deprive the other of it, and thief and steal shall be construed accordingly." We can distinguish five elements to this offence: (1) dishonesty, (2) appropriation, (3) property, (4) belonging to another, and (5) intention to permanently deprive. All five of these elements must be present at the same time (see below) for the offence to be committed.

Every element of an offence falls into one of two categories: actus reus (latin for "guilty act") and mens rea (Latin for "guilty mind"). Most criminal offences contain both actus reus and mens rea elements. These are known as crimes with fault liability. Other offences, known as strict liability, require no guilty mind, or mens rea element. In these cases, the crime is committed simply by commission of the act. An example of a strict liability offence would be driving without valid insurance.

A crime can only be committed where both actus reus and mens rea occur at the same time. In some circumstances, this rule has been widely interpreted to include offences which the law is clearly intended to protect against. Thus in Fagan v. Metropolitan Police Commissioner, when the defendant parked his car on the foot of a traffic policeman by accident, he could not be found guilty of a crime, since he did not have the requisite mens rea at the same time as the actus reus. However, the court interpreted his failure to move the car as a 'continuing' act, which coincided with his knowledge and therefore intention to harm the policeman. Fagan was thus guilty of a crime.

Actus Reus[edit]

Actus reus refers to the physical parts of the crime (the guilty act) We can categorize the actus reus elements of a crime into three types: conduct, consequences, and circumstances.

As an example, consider the definition of theft stated in the introduction. The actus reus elements of theft are "appropriation" "property" and "belonging to another" . As you can see, there is no requirement of a consequence - so it doesn't matter whether, for example, the accused actually managed to get away with the property - theft is committed if there is an appropriation of property belonging to another together with the required mens rea elements.

An example of a crime which does require a consequence is murder - murder is not committed unless the accused's conduct results in a death.

Causation[edit]

For any defendant to be convicted of any crime, causation must be proved. In practice, this is rarely demonstrated since most causation is obvious and uncontested. If A punches B in the face, there is no necessity for a legal argument to prove that the actual bodily harm suffered by B was caused by A. However, in some cases, it may be questioned whether the acts of the accused did cause the result.

When considering causation, there are five tests to determine whether causation can be established. Two of these are the tests of factual causation (Did the conduct actually cause the result) and the other three are tests of legal causation (Is the defendant to be held legally responsible for the consequences).

Factual Causation[edit]
  • The 'But-For' Test

The first test of factual causation poses the question "But for the actions of the defendant, would the result have occurred?". Paraphrasing, the court is generally trying to discover whether the consequence would have resulted regardless of the accused's actions. If the answer to this question is no, and the result could only have occurred due to the actions of the defendant, factual causation is one step towards established. If the answer is yes, and the result would have occurred anyway, then factual causation is not established.

A case demonstrating this is R v. White, 1910. The defendant in this case, laced his mother's drink of milk with poison, however she did not drink it,but died later anyway. It was later revealed that she died due to a heart attack. Since his mother would have died regardless of the fact that he poisoned her drink, White was acquitted of murder. Factual causation had not been established.

  • The 'De-Minimus' Principle

The second test for factual causation is the requirement that the defendant's actions must be more than a minimal cause of the result. An example could be that A pushes B into a main road. C is driving towards B at great speed and B jumps to the kerb and slips, spraining his ankle. A cannot fairly be held liable for the spraining of B's ankle. Though his actions were a direct cause of the result, they were no more than a minimal result.

A case where the De-Minimus case was used to establish factual causation is R v. Pagett, 1983. Here, Pagett was escaping some armed police whilst also firing back at them. By trying to escape and hide from then he ran up to his flat where his heavily pregnant girlfriend was and used her as a shield against the police. He was found to have factually caused the girls death, as his actions of firing on the police were more than a minimal cause of her death.

NB- R v. Pagett, 1983, is also a case used to demonstrate the 'But For' Test

Legal Causation[edit]

The three tests for establishing legal causation are the 'Thin Skull' test, Operative and Significant Cause, and Novus Actus Interveniens.

  • The 'Thin-Skull' test

Less a test, and closer to a principle, the 'thin skull' test merely applies the doctrine that a defendant must "take his victim as he finds". The test is called the 'thin skull' test because of the standard example quoted, though it is not known whether the phrase is coined from an actual case.

Where a victim, A, suffers from a condition which renders him more susceptible to injury than a non-suffering counterpart, B, he should not suffer unequal protection from the law.

Where a victim has a 'thin skull' or other condition or circumstance, it may be the case that he suffers an injury that a person not affected by such a condition would not suffer. Were a defendant to strike someone around the head, for example, a victim with a thin skull may suffer brain damage while the average person might suffer no injury at all. The thin-skull test seeks to attach liability to those defendants who, in terms of public policy, should not escape liability based on the individual's characteristics.

In Regina vs. Blaue, 1975, the defendant, who had entered the victim's house and stabbed her four times, was found guilty of murder when the victim, a Jehovah's witness, refused a blood transfusion which would have saved her life. Though evidence showed that the wounds would not have otherwise proved fatal, Blaue was convicted on the grounds that he had legally caused the victim's death.

  • Operative and Significant Cause
  • Novus Actus Interveniens
Is causation a purely matter of law?[edit]

As outlined above causation in criminal law is understood as a chain of events linked to each other - it is a link between the defendant’s act and the consequence which occurred as a result of that act. As causation represents an integral element of result crimes - the one to be proved, the law developed certain tests to establish it. They represent a two-stage process or two tests to be applied in succession. The first test is factual causation and the second one is legal causation.

Thus, it is seen from the outset that causation is effectively a mixture being a question of fact and a question of law at the same time or, in other words, causation is a factual issue to begin the analysis and a legal one to finalise the findings. At the same time, it is arguable that legal causation itself is a facade of a chosen approach to allocating blame. Indeed, it is submitted that criminal law itself is a mechanism for allocating blame. In turn, allocation of blame is a process which is almost inevitably based on moral and policy considerations.

Causation in English law: A matter of law, of fact or morals (a way of allocating blame)?

Liability for Omissions[edit]

Generally, the law of England imposes no criminal liability for omissions - there is no general duty to act. If, for example, a person walking along the beach one day sees a drowning child in the water, he is under no legal duty to intervene, even if it would be easy for him to do so.

There are a number of exceptions to this rule, however. The first of these are that there is a recognisable duty to act imposed by law where there exists a special relationship between the parties, such as a parent's duty to care for his/her child. A duty can arise through contractual relationships (R v. Pittwood, 1902), or can also arise through one's own conduct. For example, in R v. Miller, 1982, the defendant was held liable for the criminal damage to a building caused by fire. Miller, a vagrant, fell asleep in a disused property and dropped a lit cigarette onto a mattress. When he awoke to find the mattress smouldering, he simply moved to another room. Legally, he was bound to act since the dangerous circumstance was of his own creation, and his omission was therefore criminal. Criminal liability for omissions, has in the past, been held to include doctors who have not acted after taking the Hippocratic Oath.

Mens Rea[edit]

The mens rea of a crime is made up of those elements which relate to the state of mind of the accused. In our example of theft, the mens rea elements are "dishonesty" and "intention to permanently deprive". Mens rea elements are often harder to spot in legislation as the words are adjectives, generally non-standard and emotive. Examples might include "dishonest", "intentionally", "fraudulently", or "knowingly". The three types of accepted mens rea elements are intention, recklessness or negligence.

Intention[edit]

Criminal intention can be further broken into two groups, direct and oblique. A direct intention is the willful desire to commit an act. It must be understood that the intention sufficient to amount to mens rea is only the intention to perform the required criminal act, not an intention for the result to occur. Assault occasioning actual bodily harm (Section 47 of the Offences Against The Person Act 1861) is a good example here. The requisite mens rea is intention to cause assault. If A intentionally assaults B and harm results, he is guilty of the offence. The fact that he does not intend harm is irrelevant. He intended to do the act, and harm is simply a by-product.

Oblique intention, also known as indirect intention, refers to a knowledge or belief that a consequence is a virtual certainty, and acting with this in mind, although the result may not be intended. To explain further: A intends to punch B, but they are separated by a pane of glass. His intention to punch B is direct as he desires to perform this act. Breaking the glass in pursuance of his goal amounts to the actus reus of criminal damage, but A does not desire for this to take place. Since punching B will inevitably result in breaking the glass, it is a virtual certainty. therefore, in punching B, A had oblique intention for criminal damage - He appreciates that it will happen, and although does not desire it, continues to act regardless.

Recklessness[edit]

Intention will be more clear from an example: suppose that a man has many desires, some of which are deemed to be too visionary, some he lacks the energy to implement. But if he decides to achieve his desires, and begins to start to act to that end, the desire becomes the intention with which he acts.

Negligence[edit]
Transferred Malice[edit]

The doctrine of 'transferred malice' operates when there is an unexpected divergence between the defendant's mental state and the occurrence of the actus reus. The mens rea is regarded as transferred when this divergence is immaterial to the definition of the offence. Thus, if D fires a gun intending to kill T but misses and kills V instead, the fact that V's death was unintended does not preclude D's liability for murder. It is sufficient that D intended to kill a person — the identity of that person is irrelevant to the offence definition. Compare this with the situation where D's bullet, instead of hitting T, breaks a window of the nearby house. Here the intention to kill a person cannot be 'transferred' to make D guilty of criminal damage — an offence with a different mens rea requirement.

Strict Liability[edit]

Sometimes the legislature departs from the maxim actus non facit reum nisi mens sit rea by creating offences of strict liability. The liability is said to be ‘strict’ when there is no mens rea requirement in relation to one or more elements of the actus reus. For example, under the Sexual Offences Act 2003 the offences involving children under 13 do not require any mens rea on the part of the defendant as to the age of the child (R v. G [2006] 2 Cr App R 17). Here the prosecution needs only to prove that the defendant intentionally committed the relevant acts and that the victim was under 13; his genuine or otherwise reasonable belief that the child was older is irrelevant.

In English law most strict liability offences are statutory, with few common law exceptions such as contempt of the court and criminal libel.

Complicity[edit]

The Criminal Liability of Corporations[edit]

Corporate criminal liability occurs either through direct liability or vicarious liability.Direct liability needs a directing mind and will. Direct liability tends to focus on more srious offences requiring the establishment of mens rea, including secondary offences of aiding and abetting, counselling and procuring. Vicarious liability occurs on the basis of 'respondeat superior' or 'let the master answer'.

The recent statute enacted on July 26, 2007 , Corporate Manslaughter and Corporate Homicide Act v2007, is the criminalisation of corporate liability, especially with regard to health and safety offences.An organisation will be guilty of an offence if the way in which its activities are managed or organised causes a person's death, and amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased.


The new Act brings in tough penalties for companies causing deaths of workers by negligent management in industry, or fatalities and injuries to passengers in public transport. Deaths in prison and police cells is part of the new corporate manslaughter measures and organisations such as the Police Authority are classed as corporations.

Before the Corporate Manslaughter and Corporate Homicide Act 2007, there have been cases in the UK courts in which the issue of criminal liability of companies were decided upon. One such case is as follows:



Tesco Supermarkets Ltd v Nattrass (1972) HL


The appellant company was charged with an offence under the trade descriptions legislation of displaying inaccurate price information in one of its stores. The company was convicted and fined but appealed on the basis that the company had not committed the offence - it had in place a management and supervisory system designed to prevent this type of offence and the failure that resulted in the offence being committed was the failure of the store supervisor, which should not be attributed to the company. Held The appeal succeeded. Because the store supervisory manager could not be said to be part of the ‘directing mind and will’ of the company his acts could not be said to be those of the company. The House of Lords stressed the fictional nature of the corporate legal person and the need to distinguish between: acts which were actually those of the company; and acts which were those of an agent or servant of the company but for which the company has some statutory or vicarious liability. The former category are usually those acts committed by the board of directors or senior management of a company who speak and act for it. They are its ‘brain’ or its ‘nerve centre’.

Inchoate Offences[edit]

Specific Offences[edit]

Homicide[edit]

Murder[edit]

The crime of murder is committed where a person of sound mind and discretion unlawfully kills any reasonable creature in being, and under the queens peace, with intent unlawfully to kill or cause grevious bodily harm.

Voluntary Manslaughter[edit]

There are three kinds of voluntary manslaughter. They are provocation, diminished responsibility and suicide pacts. Voluntary manslaughter is essentially a defence to murder. A person cannot be charged with voluntary manslaughter, they have to be charged with murder and then raise one of these defences, which reduces the crime to manslaughter. In the case of provocation, the requirement is that the person was provoked by words or conduct, and that the provocation would have provoked a reasonable person to do the same. The requirement for diminished responsibility is that the defendant was operating under such abnormality of mind as substantially impaired his mental responsibility for his acts and omissions in committing or being party to a killing. The defence that the killing was a suicide pact requires that the defendant was a party to a suicide pact, and that they killed the victim in pursuance to that suicide pact. A suicide pact is an agreement between two or more people, having for its object the death of them all, whether or not each is to take his own life. Nothing may be treated as being done in pursuance of a suicide pact, unless when done the person doing the act has the settled intention of dying in pursuance of the pact. Xxx

Involuntary Manslaughter[edit]

In common law the term ‘involuntary manslaughter’ refers to those instances where the defendant causes death intending neither to kill nor to cause grievous bodily harm. There are currently three types of involuntary manslaughter - manslaughter by gross negligence, constructive manslaughter and killing with subjective recklessness

  1. Constructive manslaughter

The defendant must have committed an illegal act that resulted in the death of the victim

    1. Gross Negligence Manslaughter

Must owe a duty of care to the victim.

Non-Fatal Offences Against the Person[edit]

Assault- causing the victim to apprehend immediate unlawful force R v Ireland and Barstow (Section 39 of the criminal justice act '88)

Battery- the application of unlawful force, which can be any touching the victim does not consent to- R v Thomas (Section 39 of the criminal justice act '88)

Assault occasioning Actual Bodily Harm- any assault or battery which amounts to ABH. This can be psychriatric and physical. Physical ABH must be more than trivial damage, and psychriatric ABH must be more than mere fear and distress, and was defining in the case Chan Fook as 'any injury not so trivial as to be wholly insignificant'. (Section 47 of the Offences Against a Persons Act 1861)

Malicious wounding or causing grevious bodily harm (Section 20 of the Offences Against a Persons Act 1861)

Malicious wounding or inflicting grevious bodily harm with intent (Section 18 of the Offences Against a Persons Act 1861)

Theft and Related Property Offences[edit]

Defences[edit]

Mistake[edit]

Intoxication[edit]

Voluntary Intoxication is generally not a defense to the commission of crime.

Involuntary Intoxication, on the other hand, is an affirmative defense on which a defendant bears the burden of proof. The defendant's burden of proof typically by a preponderance of the evidence, less than the prosecutions burden to prove him guilty beyond a reasonable doubt.

Infancy and Mental Disorder Defences[edit]

Duress[edit]

Duress must be to ones property, family or ones self.

Self-defence and Necessity[edit]

Bibliography[edit]

Ashworth, A., Principles of Criminal Law (Oxford: Oxford University Press, 5th ed., 2006).

Lacey, N., Wells, C. and Quick, O., Reconstructing Criminal Law (London: Butterworths, 3rd ed., 2003).

Simester, A.P. and Sullivan, G.R., Criminal Law: Theory and Doctrine (Oxford: Hart Publishing, 2nd ed., 2003).

Smith, J.C. and Hogan, B., Criminal Law (Oxford: Oxford University Press, 11th ed., 2005).

Williams, G., Criminal Law: The General Part (London: Stevens, 2nd ed, 1961).

Williams, G., Textbook of Criminal Law (London: Stevens, 2nd ed. 1983).

Online resources[edit]