Introduction To Criminal Law

What is a crime ? How do you know whether a given conduct is or is not a crime?

What these questions are looking for is a definition of crime which will act as a test by which to determine whether any given conduct is a crime. Unfortunately, no such definition has ever, or is ever, likely to be found. The best that can be offered by way of explanation is that a criminal offence is conduct which may be followed by criminal proceedings and sentence. This is very little help to the man in the street who wants to know whether it is a criminal offence to drive a car without properly working windscreen wipers or driving without properly working brake lights.

Criminal Law tends to represent society’s attitude towards conduct. It is a decision that certain conduct should not be permitted.

The question however, of what acts can be followed by criminal proceedings can only be answered by reference to laws as laid down by Parliament in Statutes and Regulations and by decisions of the Courts over the last few centuries.

However, this question of what is a crime need not concern you, the criminal law student. What you will be doing in the study of criminal is to determine whether in a given set of facts any offence has been committed and are there any relevant defences available to that offence. You will be asked to advise the parties on their criminal liability – and will be dealing with Offences that are known.


Well established principles

(i) A criminal action is brought by the Crown in the form of the Crown Prosecution Service – the Crown has to bear the legal burden of proving all the elements of the said crime, the reason for this is the law presumes that a person is innocent until he is proven guilty, as such the accused does not have to prove his innocence, the prosecution has to prove his guilt.

(ii) The prosecution as I already said bears the legal burden of proving that the accused committed the crime. The standard of proof that the prosecution must be able to satisfy to the jury that the accused is guilty of the said crime, Beyond a Reasonable Doubt.

The meaning given in Miller v Minister of Pensions, Denning J,

“It need not reach certainty, but must carry a high degree of probability. Proof beyond a reasonable doubt does not mean proof beyond a shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence ‘of course it is possible, but not in the least probable,’ the case is proved beyond a reasonable doubt, but nothing short of that will suffice.”

In civil cases the standard of proof is a lot lower, it is merely on a balance of probabilities. The reason for the high standard on the part of the prosecution is because in a criminal case, the accused’s liberty is at stake.

(iii) The prosecution must prove ALL THE ELEMENTS OF THE CRIME. What are the elements of the crime.`

These are known as the Actus Reus and the Mens Rea of the crime. The actus reus is simply put, the prohibited act and the Mens Rea is the state of mind that is required to make that act a crime.

For example on a charge of murder. The definition of murder is:

Unlawful killing of a human being with malice aforethought

The Actus Reus : Unlawful killing of a human being
- the defendant must cause the victim’s death

The Mens Rea : Malice Aforethought
- An intention to kill or cause serious injury.

The Actus Reus and the Mens Rea for the relevant crimes will be found in the definition of the crime itself. In relation to murder, the prosecution must proof that the defendant caused the victim’s death and when he did so he had the intention to kill or cause serious injury.

Where he kills but without that intention as for example where the defendant intended to cause the victim only some minor harm but resulted in his death. In this instance the defendant will not be liable for murder, because he lacks the mens rea. He will however, be liable for manslaughter

On the other hand, where the defendant intended to kill the victim by shooting him but misses. Here he will not be liable for murder because although he has the Mens Rea, he did not cause the victim’s death. In this situation, he will be liable however, for Attempted Murder.

The point that is being made here is that, it is only murder if the elements that have been stated above are established. This is the same for every offence. If the elements of the offence is not made out, there cannot be liability for that particular crime.

The prosecution must also proof the absence of a defence. This means that where the defendant seeks to rely on a defence as for example on a charge of murder, the defendant relies on provocation, it is the prosecution that must prove that the defendant did not kill under the effects of provocation.
[There are exceptions to this rule – i.e there are circumstances where the defendant bears the legal burden of proving the defence- this will be looked at in more detail in the course of your study]

(iv) The prosecution must also prove that the Actus Reus and the Mens Rea coincide with each other. This is known as a Coincidence of Actus Reus and Mens Rea.

Suppose that the accused intended to shoot X on Friday morning, but for some unforeseen reason failed to do so, but ran over and killed X completely accidentally without realising who he had hit, on Saturday morning. Should we allow the prosecution to say that he had the necessary mens rea on Friday and performed the actus reus on Saturday and thus should be liable for murder? Clearly not.

The prosecution must show that the accused did the Actus Reus and at the same time had the necessary Mens Rea.


Chapter One – Actus Reus

Whatever the crime is, there is no exception that the prosecution must establish every part of the Actus Reus. It is important to note that the Actus Reus for every crime is different.

In this chapter we will be considering the problems that relate to the actus reus.

Omission liability - Can liability arise from a failure to act?

Actus simply means act, but while most crimes require that the accused commits a certain act this is not always the case. Criminal liability may arise also through a failure to act, as for example a parent who fails to feed his child and as a result, the child dies. In this situation the parent will be liable for murder or manslaughter, although technically, the parents have not done any ACT causing the child’s death.

A person is liable for a failure to act where the law imposes upon him a LEGAL duty to act. If a total stranger watches a child drowning in a shallow pool of water and does nothing, he will not be liable for anything. If however, the person watching is his nanny – then there will be liability attached, for the law imposes upon her a duty to act.


In this area you will be looking at the various situations where the law imposes a LEGAL duty to act.

Automatism - The act must be voluntary

The prosecution must prove that the accused voluntarily brought about the actus reus of the crime. Thus where the defendant acts in a reflex or because of a concussion caused by a blow on the head, the act is not voluntary. Here the defendant is said to be in a state of automatism.

In relation to automatism, we will be considering :

- Is the automatism induced by internal or external factors. If the automatism is caused by an internal factor, then the defence that the defendant is relying on will really be Insanity. [Thus, it is very important to note what the origin of the aotomatism is]
- When It is by external factors, the defendant will only succeed relying on this defence if there is a total destruction of control and the state of automatism is not self-induced.

Causation - The accused must cause the prohibited consequence

In this area [which is only relevant to result crimes], we are looking at whether or not the accused’s act or failure to act brought about the consequence.
Where for example the accused stab’s the victim who is then taken to the hospital. There the victim refuses a blood transfusion which will save his life.

The issue that is being considered here is whether the accused is responsible for the victim’s death or can we say that the chain of causation is broken by the victim’s refusal to consent to a blood transfusion. In this chapter you will be considering the various issues that arise in relation to contribution made by other factors to a particular consequence and what is the laws stand in relation to these contributory causes.

Chapter Two – Mens Rea

Not only must the prosecution show that the accused brought about the actus reus, they must also, in most cases, prove that he had the necessary mens rea.

The types of Mens Rea are ;
- Intention
- Recklessness
- Negligence

In this chapter, we will be looking at the meanings attributed to these states of minds by case law and how they have developed. The difficulty here is that we are dealing with a state of mind and that is not a tangible thing. It cannot be seen. It’s also always a question of proof.

Intention

A person intends a consequence, where it is his aim or purpose. In this chapter we will be looking at what beyond that is sufficient to amount to an intention.

Can a person be liable where a particular consequence is not his purpose but he knows that there is a high likelihood that it will happen. An example will be useful here.

If A, who intends to frighten B sets fire to B’s house, knowing that in the house are B and her two infant children – if one of the children die in the fire, is A liable for murder ?

Here, it is clear that A’s aim or purpose was not to kill the baby, but merely to frighten B . However, the issue that arises is that A was aware that it was a high likelihood that B and/or the babies will die or at least suffer serious injury.


In this chapter, we will be considering if this is sufficient to amount to an intention to kill or cause serious bodily harm.


Recklessness

There are two tests of recklessness in criminal law. One is known as the Caldwell test of recklessness and the other is known as the Cunningham test of recklessness. You have to know when to apply the different tests of recklessness and what must be proven.

The Cunningham test of is also known as a subjective test, in that a person is only reckless if he foresaw the risk of causing a particular consequence but still went on to take that risk.

The Caldwell test of recklessness - Here the defendant is reckless if he foresaw the risk and went on to take that risk or if he did not foresee a risk that would have been obvious to anyone.


These two tests of recklessness cannot be used interchangeably. In this chapter, you will learn when to use the two different tests of recklessness and also the problems that are related to their use.


Negligence

This is really a civil standard, where a person takes an action in the tort of negligence. If A negligently drives and causes injuries to another person B, B will sue A in the tort of negligence. If however B dies from the injuries, now A can charged for the offence of Gross Negligence Manslaughter. It is in this context, that it becomes necessary to know the meaning of negligence or more appropriately, gross negligence.


Chapter Three – Homicide

For the purposes of the study of Criminal Law for the University of London programme, homicide is divided into murder and manslaughter.
* Murder is unlawful killing with malice aforethought,
* Manslaughter is unlawful killing without malice aforethought.

Murder

It must be proven that the accused had caused the victim’s death and at the time of the killing had the necessary mens rea, i.e malice aforethought [an intention to kill or cause Grievous bodily harm]. – the issues looked at in chapter one and two will be relevant here.

In this chapter we will also be looking at the specific defences available to a charge of murder. They are :
* Provocation
* Diminished Responsibility
* Suicide Pact

These defences are only available on a charge of murder and cannot be relied on for any other offence. The effect of these defences is that the liability for murder will be dropped to manslaughter. The accused will be convicted of manslaughter on a charge of murder.

What does this really mean?
A person convicted of murder will be sentenced to a mandatory life imprisonment [the death penalty has been abolished in UK for murder charges]. A mandatory life sentence means that the judge does not have a discretion in sentencing. i.e the sentence cannot be reduced by any factors. A person convicted of manslaughter will be sentenced at the judge’s discretion. The judge decides the sentence imposed on the accused. Where a person relies on the defence of provocation on a charge of murder, he will be convicted of manslaughter and the judge will decide the sentence taking into account the provocation.

Manslaughter

There are three types of manslaughter:
- Constructive manslaughter
- Gross Negligence Manslaughter
- Reckless manslaughter

You have to know the difference between these types of manslaughter and how and when to apply them.


Chapter Four – Non Fatal Offences Against the Person

In this chapter you will be considering liability for frightening someone all the way to causing him serious injury, short of death. If he dies of course that will be murder or manslaughter.

It is important to note the different types of harm that can result, grievous bodily harm , actual bodily harm, wounding, assault, battery, administering a poison or noxious substances or other destructive thing.

In is also important to look at the Mens Rea requirement for each of the offences that can come about.

This area is the focus of examination questions of late for the Act that governs this area is an old Act – 1861 and the issue is whether it is usable today, taking into account modern day harms. Today, harassment seems to fall within this Act

Also of importance in this chapter is the defence of consent. Consent is only a defence to Non fatal Offences – but here too the law has developed to such an extent that consent is only a defence if the activity indulged in is lawful.
R v Brown. – Persons who consented to sado-masochism were liable for the Offences Against the Person.

Chapter five – General Defences

Earlier we looked at the defences available of a charge of Mueller only. In this chapter you will be considering the other defences. These are available (subject to qualifications) to all crimes.

Infancy
The law says that a child below the age of 10 is incapable of criminal responsibility. This is clear and entrenched law.

Today by virtue of the Crime & Disorder Act 1998 – the defence no longer exists for a child between the ages of 10 and 14.
However, the effect of this Act must be looked at more closely.

Insanity
This is the opposite of automatism. This defence is relied on where the defendant’s mal-functioning of the mind is caused by an internal factor. Here the M’Naghten Rules must be proved for a verdict of not guilty by reason of insanity. Here is an example where the burden of proving the defence is on the defendant.

Intoxication
A distinction is drawn between voluntary intoxication and involuntary intoxication. Voluntary intoxication is a defence only to some crimes, where else involuntary intoxication is a defence to all crimes.
Public policy considerations play a very important role in this defence.

Self-defence
This defence applies where the accused is really being attacked and also where he mistakenly believed he is being attacked. The issue to look at is taking into account his belief, is the force that is applied by him reasonable in the circumstances.
This defence applies to protection of oneself, another and also to property.

Duress
Defence to all crimes except murder and attempted murder. Applies where there is a threat of death or serious personal injury. So where for example the threat is to expose someone’s homosexuality – the defence will not be available.
Necessity [duress of circumstances]
In relation to the defence of necessity, today the law has developed in the same way as duress and necessity is also known as duress of circumstances.
The difference between the two is
- duress of threats requires a threat to commit a particular crime, - Steal that painting or else I will kill you.
- duress of circumstances deal with a situation where the circumstances threaten and the crime is committed. – The accused is dying of starvation and so steals food to eat.


Chapter six – Inchoate Offences

This chapter deals with liability that arises before the crime itself is committed.

(i) If A calls B on the phone and tries to persuade him to rob a bank – this is known as an INCITEMENT
(ii) If B agrees with A – there is a CONSPIRACY
(iii) When they go to the bank the find that it is closed for a public holiday – this may amount to an ATTEMPT

The law would be seriously deficient if liability only arose when the offence was actually committed. The police who know that A & B have planned to rob the bank must wait for them o do so before prosecutions can be brought. That clearly is not logical.


Chapter seven – Participation in crime

In this chapter we are dealing with a situation where the offence has already been committed but only by one person. The question that arises is what is the liability of the other.

So, following the above example, if A and B decide to rob the bank. A goes in to commit the offence and B waits in the getaway car – what is C’s liability.
C is liable for aiding and abetting the offence by A.

Today, in this area of the law, a new situation has arisen: the joint enterprise.
If while A is in the bank to rob – he shoots the teller and the teller dies, can B be liable if this was not part of the plan? The law says that if B foresaw that A might kill he is also liable for murder along with A.


Chapter eight - property Offences

This chapter deals with the Theft Acts of 1968 and 1978 and also the Criminal damage Act 1971.

The Theft Acts of 1968 & 1978

Theft Act 1968
S1(1) - Theft
S8 - Robbery
S9 - Burglary
S13 - Abstracting electricity
S15 - Obtaining Property by Deception
S16 - Obtaining a Pecuniary Advantage by deception
S17 - False accounting
S21 - Blackmail
S22 - Handling Stolen Goods

Theft Act 1978
S1 - Obtaining a Service by deception
S2 - Obtaining an evasion of liability by deception
S3 - making off without payment._


The Criminal Damage Act
The relevant section are S1(1) and S1(2) .

S1(1) – deals with destroying or damaging property belonging to another where else S1(2) relates to a situation where there is a risk of life being thereby endangered.
Property Offences

The law of theft and related offences is to be found in the Theft Acts 1968 and 1978.

The offence of theft is governed by ss 1-7 of the Theft Act 1968. The charging section is actually contained under s 1(1) Theft Act 1968, whilst generally speaking, ss 2-7 deal with the ingredients that the prosecution must establish.

However, when the accused uses force or threaten to use force immediately before or at the time of the theft, the prosecution have the option of charging him for robbery under s 8 of the Theft Act 1968, which carries a more severe punishment. In essence, robbery is an aggravated offence of theft and therefore, the prosecution must establish the necessary ingredients of theft first, followed by the aggravating elements for robbery.

On the other hand, s 21 of the Theft Act 1968 provides for the offence of blackmail. This offence is created where a person makes an unwarranted demand with menace (which is usually interpreted to mean threats of violence), with the view to gain or with the intention to cause loss. The essence of this offence is the demand and therefore, a person may be guilty of blackmail (and not merely for an attempt), even if he actually did not obtain anything from the victim. This offence is different from robbery because the threat in robbery is made to get property, whereas a blackmailing demand under this section has the wider purpose of making any gain or causing a loss. Blackmail requires menaces; robbery requires the threat of force (or actual force); in practice the threat of force will almost always be a menace.

A issue that arises is when it is not clear as to whether a person has the intention to steal or the intention to permanently deprive (which is one of the requisite mens rea for theft). To counter this problem, Parliament have actually enacted a separate set of offences which is generally known as offences of temporary deprivation.

For example, s 11 of the Theft Act 1968 creates the offence of removal of an article from a place open to the public. This was actually meant to counter eccentric behaviour such as the removal of Goya’s portrait of the Duke of Wellington from the National Gallery in which it was not clear beyond reasonable doubt that the taker intended to deprive the person to whom the property belonged permanently of it.

Similarly, s 12(1) of the Theft Act 1968 creates the summary offence; taking of conveyances without authority. This would govern situations where for example, D has taken a conveyance without the consent of the owner for the purposes for “joyriding” and then he subsequently abandoned the vehicle by the roadside when it ran out of petrol. However, cases have arose where the accused who took the vehicle for joyriding purposes had created additional hazards by involving in high speed chases with the police, caused property damage or even death. Due to this reason, Parliament have created the offence of aggravated vehicle taking under s 12A of the Theft Act 1968, as inserted by the Aggravated Vehicle-Taking Act 1992, to counter this growing social menace.
On a separate note, when a person actually handles stolen goods (otherwise than in the course of stealing), he can be charged under s 22 of the Theft Act 1968, which provides for a more severe punishment than the offence of theft (up to 14 years imprisonment). The rationale behind this is because it is widely believed that without these “fences”, there would be fewer thieves since many “professional” thieves would be deterred from their activities if they could not actually sell off the stolen goods to them.

S 13 of the Theft Act 1968 creates the offence of abstracting electricity. This is not covered by the offence of theft since electricity is not capable of being appropriated. This section would apply where for example, the D dishonestly uses some device to by-pass his electricity meter or where an employee out of spite for his employer, puts on all the lighting and heating appliances in the office.

One should also note that there are a number of offences involving deception (and various other common elements). This offences can be divided into (1) obtaining property by deception, (2) obtaining a pecuniary advantage by deception, (3) obtaining services by deception and (4) evading liability by deception. As one can observe, the common element that runs through all these offences is that of “deception.” The deception can be carried out by words or conduct, or in some cases, by a mere omission.

S 15 of the Theft Act 1968 deals with the offence of obtaining property by deception. For example, D, a rogue, dressed up as a priest and as a result of that, V was induced to part with some money as a form of donation for “church activities”.

S 16 of the Theft Act 1968 creates the offence of obtaining a pecuniary advantage by deception. This would govern situations where a person obtains an overdraft facility by falsely representing that he earns a handsome sum each month, or a person who obtains motor insurance by falsely stating that he has not been disqualified from driving due to a conviction of reckless driving.

S 1 of the Theft Act 1978 governs the offence of obtaining services by deception. Examples of “services” which are caught by this section include situations where D by deception induces another to repair his car or to give him a taxi ride.

S 2 of the Theft Act 1968 creates the offence of evasion of liability by deception. In essence, s 2(1)(a), (b) and (c) lays down three separate offences. S 2(1)(a) governs situations where a person secures remission of the whole or part of an existing liability. For example, D tells his creditor a false sob story to induce him to write off his debt of £200 or to reduce the amount.

S 2(1)(b) deals with cases where a person induces a creditor to wait for or forgo payment of an existing liability to make payment, with intent to make permanent default in whole or in part in payment. For example, D wrote on an envelope containing the creditor’s bill to him “No longer at this address.” S 2(1)(c) provides for situations where a person obtained by deception any exemption from or abatement of liability to make a payment. For example, D falsely stated that he was an old age pensioner so that he would be allowed to travel free on the City buses.

Other sections that deal with those who dishonestly gain some sort of financial advantage include s 3 of the Theft Act 1968, which creates the offence of making off without paying as required or expected, in circumstances where payment on the spot for any goods supplied or service done is required or expected. This offence, which is aimed at what are commonly known as “bilkers”, is different from the offences discussed above because deception is not an ingredient of the offence. For example, D walked out of a restaurant after having his dinner without paying or drove off without paying after filling up the petrol tank in his car.

S 17 of the Theft Act 1968 is also relevant as it creates the offence of false accounting. For example, D falsely indicated in the filling up of his income tax form that he was only earning only a certain sum of money in order to pay less tax.

Offences against property can also exist when a person commits the offence of burglary. This offence is governed by s 9(1)(a) and s 9(1)(b) of the Theft Act 1968. Both these offences require an entry as a trespasser. However, S 9(1) (a) is more concerned with the state of mind of the accused at the point in time he entered into the premise whilst s 9(1)(b) is more concerned with his conduct after he had entered into the premise, i.e. whether he has committed or attempted to commit one of the offences listed under s 9(1)(b). S 10 creates the offence of aggravated burglary, punishable with imprisonment for life, if the burglar has with him at the time of the burglary, any firearm or imitation firearm, any weapon of offence, or any explosive.

On a parting note, there are also offences against property which is not governed by the Theft Act. We are principally concerned here with the offence of damage to property which is governed by the Criminal Damage Act 1971. There are three main offences of criminal damage. They may be classified as (1) simple criminal damage under s 1(1) Criminal Damage Act 1971, (2) aggravated / dangerous criminal damage under s 1(2) Criminal Damage Act 1971 and (3) arson under s 1(3) Criminal Damage Act 1971.

S 1(2) CDA 1971 is different from the offence of simple criminal damage under s 1(1) because it applies even where a person damages his own property and the prosecution is required to prove, in addition to the ingredients under s 1(1), that the accused had the intention to endanger life or was reckless as to whether life would be endangered. One should note that s 1(3) does not create a substantive offence as it merely states that if the destruction or damage to property is by fire, the person shall be charged for arson. Therefore, there are two forms of arson; one under s 1(1) and another under s 1(2), combined in each case with s 1(3).