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Criminal Law Master DocumentExam Technique
1. IDENTIFY each offence each person may have committed
2. DEFINE each offence
3. AUTHORITY for your definition (the relevant case(s) or statute(s))
4. APPLY your definition to the facts under consideration (considering controversial points at
length)
5. CONCLUDE
Start with the most serious offence first. Divide essays up using subtitles.
Start with ‘this essay will argue’.
Topic One: Actus Reus
Sub-Topic One: Introduction
Actus Reus (wicked act) – external prohibited conduct of D, over which D has some control,
which may include external circumstances of conduct
Mens Rea (wicked mind) – blameworthy state of mind which accompanies AR
Human right to no punishment without law is authoritative, but conservatively applied:
CR v United Kingdom (1995) 21 EHRR 363
It was reasonably foreseeable that raping wife would be criminalised.
Sub-Topic Two: But For Causation
But for causation is the sine qua non test.
R v Bawa-Garba [2016] EWCA Crim 1841
[31]-[32]:
‘The second submission identified by Ms Johnson in relation to the direction on causation is
that the judge should have explained to the jury what he meant by the phrase ‘significantly
sooner’: this was the point that Ms Johnson raised when the direction was discussed. …
,In our judgment ... Nicol J was emphatic that the jury had to be sure ‘that Jack died
significantly sooner’ because of the negligence (by which it is clear he meant gross
negligence) of the defendant whose case was being considered. As for an explanation of the
phrase ‘significantly’, the judge did explain that how big a contribution had to be in order to
qualify as significant was left to the good sense of the jury, adding ‘although it must be
more than trivial or minimal’. We agree with the observation of Nicol J in argument that
further definition would have been confusing and unnecessary.
R v White [1910] 2 K.B. 124
D gave mother poison, who then died of an unrelated heart attack.
Convicted for attempted murder – but for D’s conduct, V would still have died.
Sub-Topic Three: Proximity Test
Proximity is:
1. closeness in time
2. whether D’s conduct raised the likelihood of the result
3. whether D’s conduct prompted further incidents which may have occurred in the causa;
chain
‘Substantial’ is not accurate – D’s conduct does not need to be the main reason for the
result – it needs to be more than a minimal contribution (more than de minimus).
It need be significant not substantial.
Concurrent causation occurs when there is more than one cause.
Hughes [2013] UKSC 56
[20]:
‘There are well recognised considerations which repeatedly arise in cases turning on
causation… the distinction between ‘cause’ in the sense of a sine qua non without which the
consequence would not have occurred, and ‘cause’ in the sense of something which was a
legally effective cause of that consequence.
He might just as easily have gone off the road and hit a tree, in which case nobody would
suggest that his death was caused by the planting of the tree, although that too would have
been a sine qua non.
Roberts (1971) 56 Cr App R 95
,Clearly D’s aggressive advances prompted the victim to endanger herself in trying to escape:
admittedly here one reaches the same result by saying that the resulting injuries were
foreseeable, which the Court did.
Lewis (2010) EWCA Crim 151
Another case of injuries through chase. But judge did not direct the jury in terms of
foreseeability and Court of Appeal approved this. It was enough for the jury to consider
whether the risks taken by the victim in trying to escape could fairly be attributed to the
manner of D chasing him
Cheshire [1991] 1 W.L.R. 844
V dies from infection in breathing tube. Tube needed as part of treatment in response to
wounds caused by D. Court held that D has caused the death (so did Doctors – concurrent
causation). What mattered was that D’s conduct had prompted the medical mishap. Court
of Appeal held that D generally remains a causal agent unless medical negligence was
independent from his actions, and potent enough to cause death in itself. No discussion of
foreseeability – indeed it would be hard to say that it would be foreseeable that someone
who was shot would die instead from an infection in a breathing tube.
Murder conviction upheld.
[p.852 at A-B]:
‘Even though negligence in the treatment of the victim was the immediate cause of his
death, the jury should not regard it as excluding the responsibility of the defendant unless
the negligent treatment was so independent of his acts, and in itself so potent in causing
death, that they regard the contribution made by his acts as insignificant.’
Eggshell skull rule is incompatible with foreseeability being the general test of proximity.
R v Carey [2006] EWCA Crim 17
D punched V, who started running, which caused her to die from an undiagnosed heart
condition.
The law required that an unlawful act was committed that was recognised, by a sober and
reasonable person, as dangerous and likely to subject the victim to the risk of some physical
harm which in turn caused their death. The only act committed against D that was
dangerous was the assault; however, the physical harm resulting from the assault did not
cause D's death.
Harlot’s Case (1560) 1 Hale PC 432
Baby left in woodland died at hands of savage birds who were quite a regular menace at the
time.
, D should be causally responsible for the reasonably foreseeable dangers that arise when D
leaves V in a vulnerable position
R v A [2020] EWCA Crim 407
[35]:
‘What had to be sensibly anticipated was that another vehicle might leave the carriageway
and collide with the respondent's parked car. It would not be necessary for the jury to be
sure that the particular circumstances of the collision or 'the exact form' of the subsequent
act was reasonably foreseeable.’
Sub-Topic Four: NAI
Kennedy (No 2) [2007] UKHL 38
[2]:
The question certified by the Court of Appeal Criminal Division for the opinion of the House
neatly encapsulates the question raised by this appeal:
‘When is it appropriate to find someone guilty of manslaughter where that person has been
involved in the supply of a class A controlled drug, which is then freely and voluntarily self-
administered by the person to whom it was supplied, and the administration of the drug
then causes his death?’
[25]:
The answer to the certified question is: ‘In the case of a fully-informed and responsible
adult, never.’
[14]:
‘The criminal law generally assumes the existence of free will. The law recognises certain
exceptions, in the case of the young, those who for any reason are not fully responsible for
their actions, and the vulnerable, and it acknowledges situations of duress and necessity, as
also of deception and mistake. But, generally speaking, informed adults of sound mind are
treated as autonomous beings able to make their own decisions how they will act, and
none of the exceptions is relied on as possibly applicable in this case. Thus D is not to be
treated as causing V to act in a certain way if V makes a voluntary and informed decision to
act in that way rather than another. There are many classic statements to this effect. In his
article ‘Finis for Novus Actus?’ (1989) 48(3) CLJ 391, 392, Professor Glanville Williams wrote:
‘I may suggest reasons to you for doing something; I may urge you to do it, tell you it will
pay you to do it, tell you it is your duty to do it. My efforts may perhaps make it very much
more likely that you will do it. But they do not cause you to do it, in the sense in which one
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