CRIMINAL LAW – COURSE SUMMARY
TOPIC 1: ACTUS REUS AND MENS REA
General Principles:
Crime: a public wrong deserving of punishment rather than, for example, simply a redress via the civil law
where compensation would be paid by the wrongdoer but usually no other penalty imposed by way of
punishment.
Criminal sanctions are designed to meet a number of different requirements: (i) punish offenders; (ii) reduce
crime; (iii) reform and rehabilitate offenders; (iv) protect the public; (v) enable offenders to make reparations
to victims.
Imprisonment, community sentences and fines (paid to the court) can all be imposed.
Main goal of criminalisation: protection of society and punishment of offenders. There are two main schools
of thought:
Moralist approach: criminalize conduct regarded as morally blameworthy even if no harm was
caused.
Utilitarian approach: criminalize conduct which, additionally to being blameworthy, also causes
identifiable harm.
Fundamental principle of criminal law: should be clear, with any ambiguity being attributable in favor of
the defendant —> penalty on conviction must be within the limits prescribed by law.
The Rule of Law: there should be no criminal liability except for conduct specifically prescribed by law —>
offences should not be created to have a retrospective effect.
Classification of offences:
Primarily governed by s 17 of the Magistrates’ Courts Act 1980.
All criminal cases begin in the magistrates’ court.
All criminal cases are classified as summary only, either-way or indictable only offences.
—> Summary offences only:
Less serious crimes – must be tried in magistrates’ court and not in Crown Court.
Usually heard by three lay magistrates who are not required to have any legal qualifications. They rely on
their legal adviser. Alternatively, heard by a district judge who is a qualified solicitor/barrister.
—> Either-way offences:
Middle range of offences: could be tried in the magistrates’ court or in the Crown Court. – ie. theft (other
than low-value shoplifting), dangerous driving, burglary and certain types of assault.
The final venue for the trial of either way offences is laid down by ss 18–22 of the Magistrates’Court Act
1980.
The trial must take place in the Crown Court (jury) if the magistrates conclude that the offence would
merit a higher sentence than they could impose if found guilty.
With effect from May 2022, the magistrates’ sentencing powers increased to 12 months' imprisonment
per offence to reduce pressure on the Crown Courts.
If magistrates can deal with case, D can choose between magistrates’ court or Crown Court.
—> Indictable offences only:
Most serious crimes (ie robbery, rape, murder). Must be tried at the Crown Court before a judge and jury.
Burden of Proof and Standard of Proof:
The guilt of the defendant is determined by assessing the evidence put before the court. In our jurisdiction, it
is not possible for a person to be convicted of an offence which they deny committing unless there is
evidence to prove that they committed the criminal behaviour in question.
In most cases, a guilty state of mind must also be proved.
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, —> Burden of proof:
Usually rests with the Prosecution. It extends to proving the guilty conduct and necessary state of mind
required to establish the criminal offence and also to disproving any potential defences.
Woolmington v DPP: “Throughout the web of the English criminal law one golden thread is always
to be seen, that is the duty of the prosecution to prove the prisoner’s guilt …”
Exceptions:
Defendants have to prove the defence of insanity if they wish to rely on it.
Statutory defences where burden is on D to prove defence exists – i.e. diminished responsibility to the
offence of murder.
—> Standard of Proof:
It is the prosecution that has to satisfy the court beyond reasonable doubt that the defendant should be
convicted of the offence charged. = If the court is in any reasonable doubt after hearing all the evidence of the
case, the defendant must be acquitted as the prosecution has not discharged its burden.
Standard lower for defendant: if D is required to provide a defence, they only need to do so on a balance of
probabilities, ie more likely than not that defence exists.
—> Evidential burden:
Defendant will often have an evidential burden imposed on them = defence must raise some evidence of a
fact in issue so as to convince the court that the matter deserves consideration.
Thereafter, prosecution must disprove the issue beyond reasonable doubt.
Basic principles:
Key components of a criminal offence:
o Actus reus: guilty conduct by the defendant;
o Mens rea: guilty state of mind of the defendant; and
o Absence of any valid defence.
o For some crimes, no requirement to prove MR, but AR must always.
Actus reus will consist of one or more of the following components:
An act (or sometimes failure to act); and/or
The existence of certain circumstances at the time of D’s conduct; and/or
Certain consequences flowing from D’s conduct.
Conduct crime: where an offence is described as a conduct crime, D must behave in a certain way and certain
circumstances need to exist before the AR of the offence is established. (Ie. Rape: lack of consent must be
proved as well as penetration).
Result crime: where an offence is a result crime, it is not enough that D acts in a certain particular way,
certain consequences must follow from that behavior before the AR is established. (Ie. Criminal damage must
cause property damage; murder must cause death)
State of affairs: offences of absolute liability: D fulfills AR of offence in circumstances in which they have
no control. - R v Larsonneur.
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MENS REA:
Guilty mind (MR): mental or fault element that has to be established to secure a conviction for a criminal
offence.
D must be shown either to have intended something to happen, or to have been reckless as to whether
certain circumstances would exist or whether certain consequences would follow from their conduct.
NB. sometimes the defendant can be convicted not because of what their state of mind was at the time
of their guilty conduct but what it should have been.
Motive: a defendant’s motive is not normally relevant to his criminal liability.
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,Steane: British actor who lived and worked in Germany. During the Second World War, as a result of threats
to himself and his family, he broadcast the news on German radio over several months. His conviction for
doing acts likely to assist the enemy with intent to assist the enemy was quashed on appeal.
D acted in order to save his family from the concentration camps and court concluded that he did not
intend to assist the enemy.
Is the motive behind a defendant’s actions is relevant in determining criminal liability? The answer is no.
Direct intent: Direct intent is one’s aim or purpose.
Indirect/oblique intent: requires the consequences of the defendant’s actions to be virtually certain to occur,
along with the defendant’s appreciation that they are so.
Jury will consider two issues: (1) were the consequences virtually certain to occur? (2) Did D
appreciate (foresee) this?
s.8 of the Criminal Justice Act 1967 was enacted, confirming intention as a subjective concept and the
‘natural and probable consequences’ rule as one of evidence rather than a rule of law.
(a) the test is what the defendant themselves foresaw, not what a reasonable person would have; but
(b) what a reasonable person would have foreseen is a good indication, which a jury can take into account in
deciding what the defendant did foresee.
R v Moloney: D shot stepfather when heavily drunk.
1. Did they (the jury) think that death or really serious injury was a natural consequence of the defendant’s
act?
2. If so, were they satisfied that the defendant had foreseen death or really serious injury as a natural
consequence of their act?
If the answer to both was yes, the jury should be instructed that they had evidence from which intention could
be inferred (although they did not have to so infer).
R v Hancock and Shankland: two striking miners dropped a concrete block from a bridge onto a taxi which
was taking a miner to work, killing the taxi driver. When charged with murder, the defendants said they only
intended to block the road and scare the working miners into stopping work.
HL decided that Moloney guidelines were unsafe and misleading, and suggested instead that
the jury questions should include a reference to probability.
R v Nedrick: It was held that if, in a murder case, the judge felt that the jury would benefit from some
guidance on the meaning of indirect intent, the following should be put to them:
(a) Did the jury consider that death or serious injury was virtually certain to occur as a consequence
of the defendant’s actions?
(b) If so, did the jury believe that the defendant foresaw death or serious injury as a virtual
certainty?
Leading authority: R v Woollin: D killed his three-month-old son by throwing him against a hard surface. It
was clear that the defendant had no desire (direct intent) to kill or seriously injure his son, but the question
remained as to whether, nevertheless, he could be said to have an indirect intent to do so. court approved
test set out in Nedrick.
o Held: a judge giving such a direction to a jury today should explain that the jury may ‘find’ (not infer)
the defendant had an intent to kill or do serious injury if they are satisfied (a) that death or serious
bodily harm was a virtually certain consequence of the defendant’s voluntary act and (b) that the
defendant appreciated that fact.
DPP v Smith (1961) Objective irrebuttable presumption of law. A man intends the natural and
probable consequences of his acts.
S. 8 CJA 1967 Subjective rule of evidence restored.
Hyam v DPP (1975) Confusing decision. A person intends the consequence of his actions when he
foresees that consequence to be a highly probable result of his actions.
Mohan (1976) Knowledge of likely consequences is evidence of intention.
Moloney (1985) Foresight of consequences as a natural consequence is evidence of intention.
Hancock and Shankland (1986) The greater the probability of a consequence, the more likely it is that the
consequence was foreseen and that if that consequence was foreseen the greater
the probability is that that consequence was also intended.
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, Nedrick (1986) The jury are not entitled to infer intention, unless death of GBH was a virtual
certainty as a result of D’s actions and D appreciated that such was the case.
Woollin (1999) Confirmed Nedrick direction. Changed ‘infer’ to ‘find’, resulting in confusion
over whether Nedrick/Woollin laid down a rule of evidence or one of
substantive law.
Matthews and Alleyne (2003) Confirmed Nedrick/Woollin as a rule of evidence.
Intoxication and intention:
For the purposes of voluntary intoxication, offences have been loosely categorised into offences of ‘specific
intent’ and offences of ‘basic intent’.
Ulterior intent: prosecution must prove an ‘extra’ element of mens rea against D before they can
secure a conviction. —> additionally, to establishing D committed AR with necessary MR,
prosecution must also prove additional MR: that they intended to produce some consequence which
went beyond the actus reus of the crime.
I.e., Burglary: must be shown to have an ulterior intent, namely to steal, to inflict grievous
bodily harm, or to cause criminal damage once they are in the building. They do not actually
have to do any of these things but the extra state of mind (an intention to do one of them)must
be established
Specific intent: crimes where the only mens rea that will suffice to convict a person of the crime is
the mens rea of intention (the recklessness of the defendant is not enough).
Basic intent: traditionally defined as one where either intention or recklessness will satisfy the
required mens rea, for example criminal damage and most assaults.
A voluntarily intoxicated defendant will have no defence to a ‘basic intent’ offence, but he may be able to
use evidence of his voluntary intoxication to negate the mens rea of a ‘specific intent’ offence by arguing
that due to his intoxication he did not, in fact, form the necessary intention and thus is not liable: DPP v
Majewski [1977].
Recklessness:
A requirement for recklessness is that the defendant takes an unjustified risk so it follows that if they take a
risk that is justified, they cannot be reckless.
Was the risk justified? —> YES —> Did D personally foresee the risk? —> YES —> Did D go on to take the
risk? —> YES —> D is reckless. (If NO to any of these Q, D is not reckless).
Justification of risk: assessed according to the standards of a reasonable person.
Courts will consider the social utility or benefit involved in taking the risk – they will ask whether
they would have considered there to be any merit in taking the risk if they had been in the defendant’s
position.
The test is whether the defendant foresaw a risk (subjective recklessness). –
R v Cunningham: Case involving meaning of word ‘malice’ in the context of s.23 of the Offences
Against the Person Act 1861 (ie, maliciously administering a noxious thing so as to endanger life)
... malice must be taken not in the old vague sense of wickedness in general but as requiring
either (1) an actual intention to do the particular kind of harm that in fact was done; or (2)
recklessness as to whether such harm should occur or not (ie the accused has foreseen that the
particular kind of harm might be done and yet has gone on to take the risk of it) …
—> recklessness was regarded as requiring proof that the particular defendant foresaw the
risk and went on to take it.
OUTDATED TEST: Metropolitan Police Commissioner v Caldwell [1982] – objective standard should be
imposed when assessing whether a defendant has behaved recklessly.
Definition of recklessness – current position: R v G and another: Report on Offences of Damage to Property
(Law Com No 29) published in July 1970 – overruled Caldwell and confirmed Cunningham.
The present law on recklessness can be summarised as follows:
(a) There is only one test for recklessness – subjective or Cunningham recklessness. This applies to any
criminal offence in which recklessness forms part of the necessary mens rea.
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