Criminal Law

Tony Storey, Alan Lidbury

• Publisher: Willan
• Year: 2012
• ISBN:
  9781135899554
• Edition: 5
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This textbook covers the Criminal Law option of the A-level law syllabus, and providesan ideal introduction for anybody coming to the subject for the first time.

Criminal Law covers all A-level syllabuses/specification requirements, and is written by the principal examiner and principal assistant examiner in Criminal Law for one of the major examination boards. It contains extensive case illustration, and a range of examination related questions and activities. There is a special focus on key skills, and on the new synoptic assessment syllabus requirements.

This fully updated third edition builds upon the success of the first two editions.

It:

• provides coverage of OCR and AQA specifications
• is endorsed by OCR for use with the Criminal Law option
• includes new OCR synoptic assessment source materials (for use in examinations in June 2005) with additional guidance
• discusses new legislation and casesincluding Sexual Offences Act 2003, Andrews, Bollom, G and R, Rowland, Safi and others, Weller, Z.

Part 1
General principles 1

1
Actus reus and mens rea

Introduction

The convicted criminal is the object of loathing and fascination in almost equal measure – an outcast, a person with few friends. The hardened, dangerous criminal is liable to be punished by imprisonment or fine. His or her prospects of obtaining or retaining employment and returning to a normal life in society are, in many cases, severely damaged.

So what is it that leads to a criminal conviction? A great deal of detection work? Often, yes. The careful unravelling of clues and evidence that will stand up to careful scrutiny and cross-examination in court? Normally, yes.

Yet it is more than this. It is up to the prosecution (the State, represented by the Crown Prosecution Service) to prove that an accused is guilty (the burden of proof). It involves a court being satisfied that the accused is guilty beyond a reasonable doubt (the standard of proof) following a due process of law. An accused is entitled to a fair trial upon consideration of the relevant facts and the law that relate to their case. A person cannot be convicted upon suspicion alone. Generations of criminal law students have become familiar with the Latin maxim, ‘actus non facit reum nisi mens sit rea’. Do not be afraid of the fact that you ‘haven’t got the Latin’! Loosely translated, this phrase means that in English law a person cannot be convicted merely upon proof of the fact that they have committed the crime in question (the actus reus). It must be established by the prosecution that they also had an accompanying guilty mind (the mens rea). The significance of this phrase or maxim is that great importance is attached to the mind of the accused at the time of the offence when determining his or her liability. Therefore, in theory at least, the innocent person is protected from false conviction. Throughout this book a shorthand is used in order to describe the accused person, or defendant, as ‘D’, while the victim of the defendant’s crime is referred to as ‘V’.

Actus reus

As stated above, the ‘doing part’ of any crime is referred to as the actus reus. Actus reus means the physical elements of the crime. It includes some or all of the following:

• Conduct
• Consequences
• Circumstances

In murder, for example, the actus reus could be described as causing the death of another human being under the Queen’s Peace. Thus, to be guilty of murder, the defendant (D) must:

• Cause death (this is a consequence)
• Of another human being (this is a circumstance)
• Under the Queen’s Peace (this is another circumstance)

In theft, to take another example, the actus reus is to appropriate property belonging to another. Thus, to be guilty of theft, D must:

• Appropriate (this is conduct)
• Property (this is a circumstance)
• Belonging to another (this is another circumstance)

You will note that in murder (see Chapter 5) there is no specific conduct requirement, merely that death is caused by the accused. This means that D could (though it is unusual) commit murder by doing nothing. Liability for doing nothing will be considered in Chapter 2. In theft, on the other hand, there is no specific consequence required. That is, D does not have to escape with property in order to be guilty; he simply has to ‘appropriate’ it (this means to assume a right of ownership).

If any one of the actus reus elements of a crime are not proven against D, then he cannot be guilty of that offence. D may well cause the death of another human being – but if it was committed during wartime, it would not be ‘under the Queen’s Peace’ and one of the elements of the actus reus of murder would be missing. Therefore, D would not be liable. This does not necessarily mean that D will escape liability altogether. There may be other crimes that he has committed. Suppose D administers a slow-acting poison to V, and V drinks it, but V – coincidentally – drops dead of a heart attack before the poison can take effect. D has tried to commit murder, but he has not done so – he did not ‘cause death’. In this case, D is not guilty of murder, but he would be convicted of attempted murder instead. This is, in fact, exactly what happened in White (1910).

Causation

As indicated above, to be guilty of murder, D must ‘cause death’. This is an example of one aspect of the actus reus, ‘causation’. Causation must be established for nearly all offences but it so happens that the crime of murder provides the best illustrations of the operation of the principles involved. Whether D’s acts or omissions actually caused V’s death is always for the jury to decide. The judge should direct them as to the elements of causation, but it is for them to decide if the causal link between D’s act and the prohibited consequence has been established. Usually it will be sufficient to direct the jury ‘simply that in law the accused’s act need not be the sole cause, or even the main cause, of the victim’s death, it being enough that his act contributed significantly to that result’ (Pagett [1983]).

When a problem arises, as occasionally happens, then it is for the judge to direct the jury in accordance with the legal principles which they have to apply. There are two main principles. D may be convicted of murder, for example, only if the jury is satisfied that D’s conduct was both:

• a factual cause; and
• a legal cause

of V’s death.

Factual causation

D’s conduct must be a factual cause of the prohibited consequence. This is commonly applied using the ‘but for’ test. In other words it must be established that the consequence would not have occurred as and when it did but for D’s conduct. If the consequence would have happened anyway, there is no liability (White [1910]).

White (1910)

White put potassium cyanide into his mother’s drink with intent to kill her, in order to gain under her Will. Later his mother was found dead, sitting on the sofa at her home in Coventry, with the glass full of the poisoned drink beside her. However, medical evidence established that she had died of a heart attack, not poisoning. In any event, White had not used enough cyanide for a fatal dose. White was acquitted of murder: he had not, in fact, caused her death. (But he was convicted of attempt.)

The mere establishment of a factual connection between D’s act and V’s death is insufficient. Suppose D invites V to his house for a party. On the way V is run over and killed. Clearly if D had not invited V he would not have died in those circumstances, but (quite apart from lack of mens rea) there is no actus reus. The missing element is legal causation.

Legal causation

This is closely associated with moral responsibility. The question is whether the result can fairly be said to be the fault of D. In Dalloway (1847), D was driving a horse and cart without holding the reins when a child ran in front of the cart, and was run over and killed. D was charged with manslaughter, but was acquitted as the jury believed that D could have done nothing even if holding the reins. Thus, although the child was killed by D’s cart, which was being driven negligently, the death would have happened in exactly the same way if he had been driving with all due care.

Application of this principle was recently seen in Marchant and Muntz (2004), a case of causing death by dangerous driving.

Marchant and Muntz (2004)

Edward Muntz, a Warwickshire farmer, owned a Matbro TR250 loading machine, an agricultural vehicle with a grab attached at the front for lifting and moving large hay bales. The grab consisted of nine spikes (called tynes), each 1 metre in length. Muntz gave instructions to an employee, Tom Marchant, to take the vehicle onto a public road to deliver some hay bales. Marchant stopped, waiting to make a turn onto a farm track when Richard Fletcher, a motorcyclist, approached at high speed (estimated at 80mph) from the opposite direction, collided with the vehicle and was impaled on one of the tynes. He suffered ‘catastrophic’ injuries and died. Muntz and Marchant were convicted, respectively, of causing death by dangerous driving and procuring the offence, but the Court of Appeal quashed their convictions. Expert evidence at trial indicated that the tyne could have been ‘covered by some sort of guard’ but Grigson J concluded that ‘even had such a guard been in place, it would not have prevented the collision. The consequences to anyone striking a tyne or the guard at speed would have been very severe, if not fatal’ (emphasis added). In other words, Marchant had not caused V’s death (and Muntz had not procured it).

It is often said that D’s act must be a ‘substantial’ cause of death; this probably states the case too favourably for D. It is sufficient that D’s act makes a more than minimal contribution. In Kimsey (1996), D and a female friend had been involved in a high-speed car chase. Tragically, she lost control of her car at high speed and was killed. It was not absolutely clear what had happened prior to the car going out of control. The Crown case was that it was D’s driving which had led her to lose control. The trial judge told the jury that they did not have to be sure that D’s driving ‘was the principal, or a substantial cause of the death, as long as you are sure that it was a cause and that there was something more than a slight or trifling link’. On appeal, it was argued that it was wrong to say that his driving did not have to be a ‘substantial cause’. The Court of Appeal dismissed the appeal; reference to ‘substantial cause’ was not necessary. Reference to ‘more than a slight or trifling link’ was perfectly acceptable.

The acceleration principle

D’s act will be considered a cause if it has accelerated V’s death. It is no defence to say that V was dying of a fatal disease anyway. In Adams (1957), D was a doctor charged with the murder of one of his patients, who was terminally ill, by means of an overdose of pain-killers. Devlin J directed the jury that it did not matter that V’s days were numbered: ‘If her life were cut short by weeks or months it was just as much murder as if it was cut short by years.’

Contributory causes

It is therefore clear that D’s act need neither be the sole, nor even the main cause of death. It is sufficient if it is a cause. Other causes may be:

• the actions of third parties, or
• actions of V herself.

Actions of third parties

Suppose D poisons V with a fatal dose but, before she dies E, an escaped lunatic, comes along and stabs her through the heart – then D will not be liable for her death (though he would certainly be liable for an attempt (as in White, above). Here, E’s act was the sole cause of death. But what is the case where the third party’s actions are not quite so unpredictable? The courts tend to take the view that it is only in extreme circumstances that D can avoid liability for causing someone’s death by trying to blame someone else. The following case illustrates this:

Pagett (1983)

In this case, several police officers were trying to arrest D for various serious offences. He was hiding in his first-floor flat with his pregnant girlfriend, Gail Kinchen. D armed himself with a shotgun and, against her will, used Gail’s body to shield himself as he tried to escape. He fired at two officers, who returned fire; three bullets fired by the officers hit and killed Gail. D was convicted of manslaughter; the Court of Appeal dismissed his appeal. In this case it was said that it was reasonably foreseeable that the police would return fire either in self-defence or in the lawful exercise of their duty.

1. What was the immediate factual cause of death in Pagett?
2. Why did the Court of Appeal uphold Pagett’s conviction?

Medical treatment

The majority of cases in the area of legal causation involve medical treatment. Where D inflicts an injury on V, typically with a knife or a bullet, which requires medical treatment, will D be held liable for murder or manslaughter if that treatment is improper, or e...