LZ019:

Law for University Study

Criminal Law Revision
Lecture
Hannah Phillips
H.Phillips-277@kent.ac.uk
 Key Terminology

Crime Mens Rea Causation

Absence
Defendant Defence
of an Act

Actus
Victim
Reus
What is a crime?

What is causation?

General Principles of Criminal

Liability

Why do we punish those that commit crimes?

 What is a crime?
An act (or sometimes failure to act) that is deemed
by statute or by the common law to be a public wrong
and is therefore punishable by the state in criminal
proceedings. Every crime consists of an actus reus
accompanied by a specified mens rea (unless it is a
crime of strict liability), and the prosecution must
prove these elements of the crime beyond reasonable
doubt Most prosecutions for crime are brought by
the Crown Prosecution Service (although they can be
initiated by private people) Oxford Dictionary of
Law

Actus Mens Criminal

Defence
Reus Rea Liability
 What is causation?
Causation and fault are separate issues (i.e.
causation may be assigned in the absence of a
blameworthy actor).

This requirement enables us to create a

record of precisely how the victim has been
wronged and reflect the harm done in
punishment.
 What is causation?
Factual Causation Legal Causation

but for the Ds action, the Responsibility will not accrue if

consequence would not have the consequences are too
occurred. remote from the accuseds
action (i.e. operating cause;
substantial cause).

White (1908) Smith (1959); Pagett (1983)

 Is it possible to break the chain
of causation?

V had not Must take

V acted Thin skull Overtaking
acted your V as you
unreasonably rule act
unreasonably find them
Why do we punish those that commit
crimes?
s142(1) Criminal Justice Act 2003
retribution
a) The punishment of offenders,
deterrence
b) The reduction of crime (including its deterrence,

c) The reform and rehabilitation of offenders,

incapacitation
d) The protection of the public, and
restoration
e) The making of reparation by offenders to
persons affected by their offences.
Why do we punish those that commit
crimes?

General Deterrence

The perception of future

punishment should deter
crime.

Those that receive harsh

punishment are meant
to be deterred from re-
offending.
Why do we punish those that commit
crimes?

Incapacitation

By imprisoning a
criminal (i.e. depriving
them of their physical
liberty) we are able to
reduce or eliminate
their ability to commit
future crimes.
Why do we punish those that commit
crimes?
Retribution

Originates from the idea

of lex talionis (i.e. the
law of retaliation).

Religious undertones
where the punishment
resembles the crime in
nature and degree.
Why do we punish those that commit
crimes?

Rehabilitation

Focuses on vocational
training, education
and treatment plans.
Why do we punish those that commit
crimes?
Restorative Justice

Based on restoring the damage

caused by the crime and
creating a system of justice
that includes all the parties
harmed by the criminal act
(i.e. the offender, the victim,
the community and society).

Punishment must be
proportionate to severity of
crime.
Why do we punish those that commit
crimes?
State punishment is often justified by reference to:

1. The principled infliction by a state-constituted

institution;

2. Of what are generally regarded as unpleasant

consequences;

3. On individuals or groups publically adjudicated to have

breached the law;

4. As a response to that breach of law, or with the motive

of enforcing the law, and not intended solely as a means
of compensation.
H.L.A. Hart, Punishment and Responsibility (1968)
 Example: Murder

Goals that
underpin
prosecution:

The D must Punishment;

cause the Protection;
death of V, Enforcement
either of norms.
directly or
indirectly.

= Unlawful killing with malice aforethought.

Actus reus Mens rea

 Was the victim injured?

What did the defendant intend?

Non Fatal
Offences

If the victim was injured, how serious were their injuries?

Non Fatal Offences

Wounding with Intent (s18

OAPA 1861)

Malicious Wounding (s20

OAPA 1861)

Assault Occasioning Actual

Bodily Harm (s47 OAPA 1861)

Battery (s39 Criminal Justice

Act 1988)

Assault (s39 Criminal Justice

Act 1988)
 Assault

1 Was there a continuing act?

2 Has the D done something to cause their V fear?

3
Has the D said something to cause their V fear?

4 Did the V apprehend force or psychological injury?

5 Was the threat immediate?

6 Did the threat cause the V to fear unlawful force?

7 Was the threat of unlawful force conditional?

+ intent/recklessness (MR)
 Battery
1 Has the D applied unlawful force to the Vs person?

2 Has the D applied unlawful force to the Vs clothes?

3 Did the V spit or throw something at the V?

Did D expose V to a reasonably foreseeable risk of injury

4 which actually materialized?
Was the battery committed indirectly whereby the D
5 created a situation where force was applied to the V?
Has V consented to the touching? If so, the force is not
6 unlawful.
Has v impliedly consented to the touching? If so, the force
7 is not unlawful.

8 Is the Vs consent true?

+ intent/recklessness (MR)
 s47: ABH
1 Has there been an assault or battery?

Has the V suffered any injury calculated to interfere with the health or
2 comfort of the V?

3 Is the injury suffered by V permanent or transitory? If transitory, is it trivial?

4 Does the psychological injury conform to a recognised medical condition?

5 Has the Vs physical integrity been undermined?

Was the actual bodily harm suffered by V occasioned by Ds assault or

6 battery?

Did possess the relevant mens rea for assault or battery?

7

8 Has the V consented to the actual bodily harm?

If V has consented to the actual bodily harm, does the activity causing the
9 harm go against the public interest?
If V has consented to the actual bodily harm, is it possible to reason by
10 analogy to justify the harm?
 s20: GBH

1 Did the D act without lawful justification?

Does Vs wound comprise of a break in the continuity of the

2 whole of the skin?
Does Vs wound comprise of a break of an inner membrane
3 which is analogous to skin?

4 Has the V sustained really serious harm (in the totality)?

5 Do the Vs characteristics render the harm more serious?

6 Has the V suffered psychological harm?

7 Did the D inflict the wound or grievous bodily harm on V?

8 Did D foresee that the V may suffer some harm?

 s18: Wounding with Intent

Did the D foresee the consequences and

1
form the necessary intention to wound?

Were the consequences of Ds acts a

2
virtual certainty?

3 Did D intend to wound V?

4
Did D intent to infect V?
 Voluntary Manslaughter
Murder

Fatal
Offences

Unlawful Act Manslaughter

Gross Negligence Manslaughter

 Fatal Offences

Recklessness;
Intention to case death;
Gross negligence;
Intention to cause grievous bodily harm.
MR for a dangerous criminal offence.

Voluntary Manslaughter Gross Negligence

Murder (Diminished Manslaughter (i.e.
responsibility; LSC). Involuntary manslaughter).

Offences of strict liability: no need to look at the mens rea.

Unlawful act manslaughter (i.e. any unlawful act that is reckless as to cause
death).
 Murder & Voluntary Manslaughter

1 Did the D intent to kill or cause GBH?

2 Ds acts resulted from a loss of self control;

This had a qualifying trigger;

3

A person of Ds age, sex and with a normal degree of

4 tolerance and self restraint would do the same.

5 D suffers from an abnormality of mental functioning;

6 Which arises from a recognised medical condition;

Which substantially impairs Ds ability to understand

7 the nature of their conduct/form judgement.
 Gross Negligence Manslaughter

1 Did D owe the V a duty of care?

Did D breach the duty of care that they

2
owed to the V?

Did Ds breach of duty of care cause Vs

3 death?

Was Ds act/omission so bad as to be

4 criminal having regard to the risk
involved?
 Unlawful Act Manslaughter

1 Was Ds act unlawful?

2 Were all of the elements of the unlawful act satisfied?

3 Is it possible for D to rely on a defence?

4 Was Ds crime based on mere negligence?

5 Was there a risk of some harm, albeit not serious harm?

6 Would a reasonable person regard Ds act as dangerous?

7 Did Ds dangerous act simply cause fright of distress?

8 Did Vs fright/distress lead to physical injury?

 Aiding
Procuring

Accessory
Liability

Abetting

Counselling
 Types of Accessories

Aiding Helping/assisting the principal prior to or at the time of

the commission of the actus reus by the principal.

Abetting Encouraging the principal at the time of the offence.

Counselling Encouraging the principal prior to the commission of the

actus reus. This can also involve advising, suggesting or
instigating an offence.

Procuring Make some causal contribution to the performance by the

principal of the actus reus.
1 Aiding: Positive act

2 Abetting: Any encouragement will suffice

3 Abetting: Presence alone will not usually suffice

4 Abetting: Presence will suffice if it facilitates

5 Abetting: It is possible to abet by omission

6 Counselling: Advising or soliciting action

7 Procuring: To produce by endeavor, set into motion

8
Procuring: Going against principals wishes
 Conspiracy
Attempt

Inchoate
Offences

Encouraging

Assisting
 Attempts

1 Were the Ds acts more than merely preparatory?

2 Has the commission of the criminal act begun?

3
Did D intend to commit the offence?

Was D reckless as to certain elements of the actus

4 reus?

5 Has the D attempted to commit an offence which

is physically or legally impossible to commit?
 Conspiracy

Has there been an agreement to commit a

1 criminal offence?

Is there some common purpose or design uniting

2
the conspirators?

Have the parties agreed to pursue a course of

3 conduct?

Was the agreement carried out in accordance

4 with the conspirators intentions?

Will the agreement result in the commission of

5 an offence by one or more of the parties to the
agreement?
 Assisting/Encouraging

Encouraging or assisting in the commission of

1 an offence, with an intent to encourage or
assist.

Encouraging or assisting in the commission of

2
an offence, believing it will be committed
and believing that the act will encourage or
assist.

Encouraging or assisting in the commission of

3
one or more offences, believing that one or
more offence will be committed and believing
that the act will encourage of assist.
 General Defences

Defences

Special Partial Defences to

Murder
 Duress N.B. There are also
Defences: defences that relate
to mental capacity,
Necessity but we will not be
studying these.
Marital Coercion
General
Mistake
Defences

Self Defence

Consent

Provocation
(old) Voluntary
manslaughter
Loss of Self
Control (new)
Voluntary = D satisfies both
Manslaughter Diminished the AR and the
Responsibility MR for murder,
but benefits from
Suicide Pact a partial defence.
 General: Duress

Did the D satisfy the requisite mens rea

1
and actus reus of the offence?

2 Was the D faced with threats of serious

injury or death?

3 Was the D threatened by words?

4
Was D threatened by the circumstances
in which they found themselves?
 General: Necessity
If the offence is murder, this defence cannot apply.
While law and morality are not the same, the
1 absolute divorce of law from morality would be
fatal.

Was the act needed to avoid inevitable and

2 irreparable evil?

Was no more done than was reasonably necessary

3 for the purpose of the evasive action to be
achieved?

Was the evil inflicted disproportionate to the evil

4
avoided?
 General: Marital Coercion

Was the womans husband

1 present at the time the
crime was committed?

2
Did the offence take place
prior to 1925?

Did the offence take place

3
prior to 2014?
 General: Mistake

Was the mistake

1 one of fact or one
of law?

2
Was the mistake
honestly made?
 General: Self Defence

1 Was the use of force necessary?

2 Was the D making a pre-emptive strike?

3 Was the D preparing for an attack?

Was the amount of force used reasonable in the

4 context?

Did D possess particular psychological characteristics

5 that made them more prone to over-react?

6 Was the force used disproportionate or excessive?

 General: Consent

1
Is there implied
consent?

2
Is there good reason for
the harmful activity?

3
Does the offence relate
to unlawful killing?
 General: Consent
Did the harm emanate from sporting
1
activities?

2 Did the harm emanate from horseplay?

Did the harm emanate from

3
surgery/tattooing?

4 Did the harm emanate from sexual

contact?

5 Did the harm emanate from street

fighting?

6 Did the harm emanate from

sadomasochistic acts?
 Special: Provocation

Was something said or done to the D

1 which triggered a sudden and temporary
loss of self control?

Would what was said or done have had

2
the same impact on a reasonable person?

Would the reasonable person (who

3 shares Ds characteristics) have been
provoked?

4 Was the D suffering from battered

women syndrome?
 Special: Loss of Self Control

1
Did the D suffer a loss of self
control?

Did this loss of self control

2 result from a qualifying
trigger?

Would a normal person of Ds

3 age and sex have reacted in
the same or a similar way?
 Special: Diminished Responsibility

Was the D suffering from an abnormality of mental

1 functioning?

Did this abnormality of mental functioning

2 emanate from a recognised medical condition?

Did this abnormality substantially impair Ds

3 ability to understand the nature of their conduct,
form rational judgment or exercise self control?

4 Does this explain Ds conduct?

 Special: Diminished Responsibility

1 Was the D suffering from alcoholism?

Was the D suffering from battered woman

2
syndrome?

3 Was the D suffering from depression?

4 Was the D suffering from epilepsy?

5 Was the D suffering from psychopathy?

6 Was the D suffering from schizophrenia?

 Special: Suicide Pacts

Is the D a survivor
of a suicide pact?
1

What were the

terms of the pact?
2