Criminal Law Lectures
Intro to Criminal Law
What is criminal law?
It is the study of the legal rules which determine criminal liability (not the question of how
something might be proven, rather only what objective facts are required for a guilty verdict
to be reached.
How is criminal law different from other subjects?
It involves the state taking an individual to court rather than a private entity (R. vs Smith as
opposed to Brown vs Smith).
The case is, in most instances, decided by a jury rather than a judge.
o What is the role of the judge? It is to give advice to the jury about what the position
of the law is. They help the jury by identifying the questions which the jury needs to
find the answer to, as intermediate conclusions to their verdict.
o Questions of fact are the domain of the jury not the judge.
The burden of proof is beyond reasonable doubt rather than the balance of probabilities.
o 50+% vs 99+%
The result is a punishment rather than a remedy.
The criminal law is interested in:
the action (to include the result of said action) – actus reus
the mental state – mens rea
o for some offences the tests used do not map out into separate action and intention
elements.
potential defences: while the criminal law does not allow motive to generally play a part in
criminal cases, there are, for each offence, a few specified motives which constitute a
defence.
Principles of the Criminal Law
It is often difficult to find coherence within the criminal law, and the broad principles which seem to
be identifiable are often contradicted by Supreme Court decisions (and hence these principles may
not in fact be represented in the law).
Principle of Autonomy
Humans are autonomous and exercise their rationality to choose their actions, and hence
can be held responsible for what they choose to do.
Implications
o Importance of what someone intended to do.
o Importance of degree of rationality – children, the legally insane, those under the
influence (controversial).
Principle of Welfare
The purpose of the criminal law is to protect society from harmful behaviour and dangerous
people
Think about implications for
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o The insane – they might not be morally responsible for what they have done, but
they are still dangerous.
o Those under the influence – as before.
Correspondence principle
The actus reus and the mens rea ought to correspond – this is how we get the principle of
autonomy to be reflected in the law.
A constructive crime is one in which the actus reus goes above and beyond the mens rea.
Most crimes on this course fall into this category.
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Actus Reus – Omissions
All offences, generally speaking, ought to have an actus reus and a mens rea. Where both
components are not present, this ought to raise concerns.
Why have an actus reus? Because in a western liberal society, we do not believe it justified to punish
people purely for their thoughts.
What is the actus reus?
It is somewhat misleading to just call it the action element – if A shoots B, then lots of
actions take place, e.g. picking up the gun, pulling the trigger, but these do not necessarily
involve the death of B. So the actus reus in this case is not the conduct, since murder is a
result crime, but rather the result, and therefore the death of B.
The actus reus, generally speaking, is anything that does not refer to the mental element of
an offence.
Omissions Liability
While we do not generally punish people just for their thoughts, the law does depart from this
principle where it punishes people for their omissions (i.e. their decisions to fail to perform an
action).
There are certain duties in law, meaning that to fail to comply to them (i.e. to do nothing), makes
one criminally liable.
The Common Law Duty to Act – Dytham (1978)
A police officer on duty failed to intervene to help a man being beaten up. The man died in
the altercation, because he was near the end of his shift.
The officer had a common law duty, as a police officer, to prevent crimes from occurring.
The Statutory Duty to Act – s.6 Road Traffic Act 1988
Failure to give a police officer a breath sample is an offence.
Many more examples of statutory duties to act.
Contractual Duty to Act – Pittwood (1902)
Breach of contractual duties can result in a criminal offence, usually where there is a
contract of employment, and where failing to perform the prescribed duties leads to harm.
In Pittwood, a level-crossing operator failed to keep a gate closed keep passers-by safe from
passing trains. He failed to do this, breaching his contract. Naturally he was fired, but on top
of this, he was guilty of manslaughter, because his breach led to a death.
Duties arising out of a relationship – Gibbins and Proctor (1918)
In Gibbins & Proctor, a man and his girlfriend, whom he lived with, failed to look after their
child, and the child starved to death. The man was found guilty of murder. In any case this
obligation is now statutory.
But there are a number of factors which are unclear in the case law relating to relationships
o How close does the relationship have to be – adult children? Step-children?
o While certain things might be morally reprehensible, it does not necessarily follow
that it should be a criminal offence.
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Duties arising out of an assumption of responsibility
This related to cases where someone has assumed a responsibility towards someone else,
but failed to properly discharge it.
Nicholls (1874):
o A grandmother takes a grandchild into her care, which was held to be an explicit
assumption of responsibility, and the child died due to failings in the care provided.
The duty was not based on the family relationship.
Instan (1893):
o The defendant was a young woman who went to live with her aunt (not for the
purposes of looking after her), and her aunt fell ill, and became unable to get out of
bed. The niece continued to live in the house throughout, did not try to help the
aunt, and just let her die.
o Here there was no explicit assumption of responsibility, yet it was held that there
was an implicit assumption of responsibility – by continuing to live in the house, and
continuing to subsist off the aunt’s food, she was criminally liable.
o Somewhat controversial as it seems to extend liability quite far.
Stone and Dobinson (1977) goes even further.
A man lived with his common law partner (unmarried long-term partner). The man’s sister,
an anorexic, came to stay with them.
All of them had learning difficulties, and were described as ‘inadequate and ineffectual’. The
couple did try a few things, for example trying to give her a bath, and trying to offer her
food, and calling a neighbour to come around and try to help.
However they never called the authorities. It was held that they had committed the offence
of manslaughter, even on appeal.
Issues with this case
It is not entirely clear on what grounds the liability is imposed. At points in the judgement, it
seems that it is due to the sibling relationship. This should not really be the case, and the
fact that the partner was also liable (on the grounds of assumed responsibility) shows that
family cannot be the grounds.
It might be the fact that they tried to help, and yet did not help enough. But in this case,
then the neighbour perhaps ought to be liable too, since they tried to help, but did not
follow up on it.
o This also suggest that had they not helped at all, they might have been in a better
position, since they would not have assumed responsibility. This would be a highly
perverse result.
It might also be that they were living in the house with them, but then this would have
troubling implications for cases involving e.g. flatmates.
Another issue with this judgement is that the defendants were unable to help as a result of
their low intelligence.
Some of its implications
The neighbours, who were more capable of helping, were not held liable. This seems to
suggest liability extends beyond what people are capable of in certain instances.
