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Summary SQE 1 | CRIMINAL LAW
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INTRODUCTION TO CRIMINAL LAW- Presumption of innocence
- Prove beyond reasonabled doubt
The functions of criminal law:
a) the conduct must be wrongful
b) The criminal law is needed to condemn or prevent such conduct
c) It must be permissible to criminalise the conduct within ECHR
Sources of criminal law:
- offences against the person act
- Theft act
- Criminal damage act
- Common law
Classification of offences:
- statutory offence or common law offence
- Summary only, triable either way or indictable only
SUMMARY ONLY TRIABLE EITHER WAY INDICTABLE ONLY
- less serious offences Middle ranking offences in terms - most serious crimes
- Tried in the magistrates court of seriousness and can be trie - Murder, robbery
- i.e common assault summarily before a magistrates - prosecution starts at
court or indictment only before magistrates court
crown court - case is sent to the crown court
for trial
- the prosecution has the legal burden of proving all elements of an alleged offence beyond
reasonable doubt
Elements of a criminal offence
a)actus reus (guilty act)
- includes a physical act by the defendant -> a voluntary act that causes a specified harm
the act needs to be voluntary
however a person will not be liable if the act is an instinctive reaction
ommissions: failure to act when there is a duty to act
common law exceptions
• duty arising from contract
• duty arising from public office
• voluntary assumption of responsibility or to care for someone
• creation of a dangerous situation
• Duty arising from a special relationship
causation:
• Question of fact
• there is no factual causation if the consequence would have happened anyway
• there must be factual and legal causation
• Factual causation - the court asks whether the consequence would have occurred but for
the defendant’s act
• Legal causation - it must be shown that is was a substantial cause of the victim’s death
• Eggshell skull rule
, • Interruption of causation - if the defendant’s act/ommission is negligible then it may be
disregarded
• A natural event or force majeure -> needs to be so powerful that the defendant’s
conduct is merely part of the surrounding circumstances
• The acts of a third party -> can break the chain of causation where the third party’s
actions are free,deliberate and informed. Highly unlikely that negligent medical
treatment, unless it’s grossly negligent, will be held to break the chain of causation.
• The acts and ommissions of the victim -> where the victim attempts to escape
harm from the defendant and is injured in the process, the chain of causation will
not normally be broken. Only in cases where they are so daft will they be
considered as broken.
b) Mens rea (guilty mind)
- for the defendant to be found guilty, the prosecution must prove that the defendant had the
requisite mens Rea for the offences charged which coincides with the required actus reus
INTENTION
- a chosen action even if the eventual harm did not actually eventuate
- An individual’s motive is irrelevant vis a vis his intention
- Direct intent -> defendant’s aim
- Oblique intent -> the consequence of an individual’s action where they intended the result of
their actions
- the jury should consider the subjective state of mind of the defendant when looking at
whether he intended the death of the victim
- If a person foresees the probablity of a consequence as little short of overwhelming, this
will suffice to establish the necessary intent
- transferred intent -> operates only where the mens Rea of one crime causes the actus reus of
the same crime
KNOWLEDGE AND INTENT
RECKLESSNESS
- requires a knowing disregard of an appreciated and unacceptable risk or a deliberate closing of
the mind to such risk
- Cunningham test:
- Actual intention to do the particular kind of harm
- Recklessness as to whether such harm would occur or not
- Requires a subjective test
NEGLIGENCE
- rarely sufficient to qualify as a state of mind amounting to a criminal offence
- Foremost defence is due diligence
c) Criminal defences
They negate criminal liability based on either justification or excuse.
Justification based defences => recognise the elements of the offence have been satisfied, but
the accused acted in such a way that was the right thing to do given the circumstances
Excuse based defences => the conduct was not right, but in the circumstances guilt should not
attach. (duress and insanity)
Strict liability -> an offence will be treated as one of strict liability if the statute makes it
compellingly clear that there is no requirement of means Rea (sex w minors)
, Use of words such as permitting, suffering, willfully and malicious indicates that mens Rea is
integral to the offence.
CORPORATE LIABILITY
- criminal liability may attach if criminal acts are committed by individuals claiming to act in its
name
- Corporate manslaughter // failure to prevent bribery
- Corporate liability may be established by vicarious liability or non vicarious liability
VICARIOUS LIABILITY
- serves to impose liability upon employers in order that they comply with their regulatory
requirements
- If an employee commits an offence in the course of their employment, no mens Rea is needed
(absolute liability) unless the statute requires it
THE IDENTIFICATION PRINCIPLE (non-vicarious liability)
- indicates whether the wrongdoer was a directing mind and will of the company
- This principle recognises existence of corporate officers who personify the company when
carrying out its business. Their acts are considered to be those of the company. These officers
can be prosecuted as individuals for their criminal acts as can the company because of their
status within it. For offences requiring mens rea, the controlling officers must be clearly
identified.
The actus reus must coincide with the mens rea.
SPECIFIC INTENT BASIC INTENT
Term used to describe an offence which requires Describes an offence that can be committed with a
intention as the mens rea. lesser form of mens Rea than intention i.e
recklessness
Murder is a specific intent crime
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