Criminal Law

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Substantive Law Criminal law and tort
Richard ONeill University of Hertfordshire
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Criminal and Civil cases

• Criminal law
• nature of crime
• actus reus
• mens rea
• types of offences
• defences
• Tort law
• nature of tort
• torts
• negligence
• trespass to the person
• remedies

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Responsibility and Accountability

• To whom do pharmacists have a responsibility?
• To which persons/bodies might pharmacists be held
  accountable for acts and omissions?

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Criminal law

• aim of criminal law is to forbid certain types of
  conduct
• offences comprise
• two elements - conduct fault (actus reus and
  mens rea)
• actus non facit reum nisi mens sit rea an act
  does not make a person guilty unless the mind is
  also guilty
• actus reus and mens rea must coincide (R v White
  (1910))
• strict liability offences (no mens rea)
• burden of proof for both conduct fault beyond
  reasonable doubt

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Actus Reus and Mens Rea

• Elements of a crime
• what is the actus reus?
• all elements of the offence excluding the
  defendants mental element i.e. the
  definition of offences minus the mens rea
  requirements of the offence

crime
actus reus
mens rea


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Actus Reus

• Actus Reus the act (the external element)
• a positive act?
• accused commits positive action commisions
• voluntary
• an omission?
• accused fails to carry out an action they are
  obliged to do - omissions
• a state of affairs
• usually strict liability offences
• may or may not require an element of
  voluntariness
• R v Larsonneur (1933)
• R v Winzar (1983)
• ?subject to a requirement of causation

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Actus Reus

• voluntary
• accused actions free-willed
• loss of voluntary control
• automatism
• R v Quick (1973)
• reflex actions
• physical force

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Actus Reus

• omissions
• positive duty to act
• statutory duty
• R v Naughton (2001)
• contractual duty
• R v Pittwood (1902)
• duty owed to family members
• R v Gibbons and Proctor (1918)
• duty to limit accidental harm
• R v Miller (1983)
• duty arising from relationship of reliance
• R v Stone and Dobinson (1977)

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Actus Reus

• causation
• causation in fact
• the but for test - but for the act in question,
  would the victim have died?
• R v White (1910)
• R v Pagett (1993)
• causation in law
• closeness of the link between the act and the
  death
• act a substantial and operating cause of the
  consequences
• R v Smith (1959)
• chain of causation
• R v Blaue (1975)
• thin/eggshell skull rule defendant must take
  victim as he finds him

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Actus Reus

• causation
• death following medical intervention
• original attacker held liable for homicide
• poor and possibly negligent treatment
• R v Smith (1959)
• R v Cheshire (1991)
• switching off life support
• R v Malcherek (1981)
• grossly negligent medical treatment
• break in chain of causation
• R v Jordan (1956)

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Actus Reus

• strict liability offences
• offence committed by actus reus alone
• difficult to prove mens rea, e.g parking/speeding
  offences Trade Descriptions Acts 1968 1972
  strict liability offence of displaying goods with
  incorrect description
• statutory interpretation where unclear as to
  mens rea - courts have to decide whether strict
  liability offence - Sweet v Parsley (1969)

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Mens Rea

• Mens Rea guilty mind the fault element
• mental state necessary
• e.g. knowingly intentionally maliciously
  negligently recklessly
• intention
• direct intent
• indirect/oblique intent
• basic intent
• specific intent
• recklessness
• negligence

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Mens Rea

• Intention
• intention vs motive
• what is sought to be achieved vs the reason for
  acting
• direct intent
• aim or purpose
• foreseeing and desiring the consequences
• indirect/oblique intent (a presumption)
• result a virtual certainty of defendants action
  and defendant knew this was the case
• R v Woollin (1998)

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Mens Rea

• Offences of basic and specific intention
• basic (general) intent crimes
• mens rea specified as intention and recklessness
• do not have to foresee consequences/harm beyond
  definition in actus reus
• specific intention (ulterior intention)
• mens rea goes beyond actus reus
• further element in addition to basic intent
• desire to bring something about a specific
  consequence
• element of specific intent shown using a more
  subjective than objective test

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Mens Rea

• Recklessness
• lower level of mens rea than intention
• subjective recklessness
• consciously take an unjustified risk though not
  necessarily desiring results
• Cunningham reckless (R v Cunningham (1957))
• objective recklessness
• do not realise there is risk that would be
  obvious to an ordinary prudent individual
• Caldwell reckless (R v Caldwell (1982))
• criminal damage

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Mens Rea

• Negligence
• failure to foresee consequences that have
  occurred although the reasonable man would
• Court of Appeal R v Prentice Sulman R v
  Adomoko, R v Holloway (1993)
• House of Lords R v Adomoko (1994)
• existence of duty
• breach of duty causing death
• death as a consequence of breach and
• gross negligence which jury considered justify
  criminal conviction

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Criminal law topics

• Offences against property
• Offences against the person
• non-fatal
• assault and battery
• Ss18 20 47 OAP
• fatal - homicide
• murder
• manslaughter
• Inchoate Offences
• incitement conspiracy attempt
• General defences

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Criminal law topics

• Offences against property (Theft Act 1968)
• theft dishonest appropriation of property
  belonging to another with intent to permanently
  deprive (s3 Theft Act 1968)
• robbery steals and immediately before or at
  time and in order to do souses forceor puts
  person in fear of beingsubjected to force (s8
  Theft Act 1968)
• burglary enters building or part of building as
  a trespasser with intent to stealinflict
  GBHrape..commit unlawful damage, or having
  entered building. Commits or attempts to steal
  or inflict GBH (s9 Theft Act 1968)
• others include
• criminal damage
• deception
• blackmail
• handling stolen goods,
• etc

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Criminal law topics

• Inchoate Offences
• defendant progresses part way to commission of an
  offence
• incitement suggesting the commission of an
  offence
• conspiracy agreeing to commit an offence
• attempt substantially committing the offence
• General defences
• insanity (MNaghten rules) infancy
• non-insane automatism intoxication (DPP v
  Majewski (1984))
• self defence consent
• duress (threat) mistake
• necessity (duress of circumstances) (R v Dudley
  and Stephens (1884))

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Non-fatal offences against the person

• Assault and Battery
• common assault and battery
• s39 Criminal Justice Act 1988
• 216,762 offences of common assault recorded in
  2004/05
• Offences Against The Persons Act 1861 ss18 20
  47
• actus reus
• assault act intended to cause victim to
  apprehend immediate personal violence
• battery actual infliction of unlawful personal
  violence
• mens rea
• intention or recklessness

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Non-fatal offences against the person

• Non-fatal assaults
• S47 OAP
• assault occasioning actual bodily harm
• actus reus
• either an assault or battery
• occasioning rules of causation foreseeable
• actual bodily harm physical/psychiatric
• mens rea
• intention or recklessness

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Non-fatal offences against the person

• Non-fatal assaults
• s20 OAP
• ..maliciously wound..
• ..maliciously inflict grievous bodily harm..
• actus reus
• wound break the skin
• grievous bodily harm serious harm
• mens rea
• maliciously intention or recklessness

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Non-fatal offences against the person

• Non-fatal assaults
• s18 OAP
• ..maliciously wound or cause grievous bodily
  harm with intent to do some grievous bodily
  harm.. or
• .. maliciously wound or cause grievous bodily
  harm with intent ... to resist or prevent
  lawful apprehension..
• actus reus
• as for s20 - a wound or grievous bodily harm
• cause wider than inflict
• mens rea
• specific intention to cause grievous bodily harm

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Non-fatal offences against the person

• Non-fatal assaults
• administering poison
• ss28 24 OAP
• actus reus
• administration of a poison or noxious thing
• s23 .. so as thereby to endanger the life.. or
  .. so as to .. inflict grievous bodily harm..
• mens rea
• administration intentionally or recklessly
• S24
• mens rea
• administration intentionally or recklessly
• and proof of further intent
• specific intent ...with intent to injure,
  aggrieve, or annoy..

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Non-fatal offences against the person

• Homicide
• killing of another
• if unlawful, it is either murder or manslaughter
  depending upon the state of mind of the accused
• causation - must always prove that accused
  caused death
• Law Reform (Year and a Day Rule) Act 1966
  abolished old year and a day rule
• 859 homicide offences recorded in 2004/05
• Source Research Development Statistics
  (CRCSG) Home Office

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(No Transcript)
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Murder

• actus reus causing death of another person
• mens rea malice aforethought intention to
  kill or cause grievous (serious) harm
• Sir Edward Coke 1797
• Murder is when a man of sound memory, and
• of the age of discretion, unlawfully killeth
  within
• any country of the realm any reasonable creature
• in rerum natura under the King's peace, with
• malice aforethought, either expressed by the
• party or implied by law, so as the party wounded
• or hurt die of the wound or hurt within a year
  Sir Edward Coke
• and a day after the same

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Murder

• unlawful killing act factual legal cause of
  death (R v White (1910) R v Smith (1959))
• certain defences
• human being living not foetus (Note
  protecting unborn child - Infant Life
  Preservation Act 1929 Abortion Act 1967 OAP
  1861)
• Queens peace exception of killing an enemy in
  war
• Death within a year and a day abolished in
  1996 life-support/medical advances
• malice aforethought R v Moloney (1985)
  intention to kill or cause grievous (serious)
  harm merely foreseeing death as probable
  insufficient
• crime of specific intent direct (desired death)
  or oblique intent (death foreseen as virtually
  certain, though not desired)

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Murder

• mens rea foresight and intention
• where intention unclear jury consider what
  defendant foresaw
• more evidence that defendant foresaw death of
  GBH as a consequence of action, stronger the
  inference of intention (R v Hancock and Shankland
  (1986)
• jury needs to be satisfied that the defendant
  foresaw death or GBH as a virtual certainty (R
  v Nedrick (1986 R v Woollin 1998))
• mandatory sentence of life imprisonment (Murder
  (Abolition of Death Penalty) Act 1965
• patient on life support system
• legally alive and capable of being murdered (R v
  Malcherek (1981)
• newborn
• protected once capable of independent existence

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Manslaughter

• actus reus as for murder
• voluntary
• provocation
• diminished responsibility
• infanticide
• suicide pact
• involuntary
• constructive
• gross negligence

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Manslaughter

• Voluntary manslaughter
• provocation
• S3 Homicide Act 1957
• diminished responsibility
• S2 Homicide act 1957
• infanticide
• Infanticide Act 1938
• infanticide an alternative to murder preferred
  where
• mother killed child before it reached 12 months
• medical evidence re balance of mothers mind was
  disturbed
• suicide pact
• S4 Homicide Act 1957
• NB if aids, abets, counsels or procures the
  suicide or attempted suicide of another offence
  s2 Suicide Act 1961

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Manslaughter

• Involuntary manslaughter
• illegal and dangerous act (constructive
  manslaughter)
• an act which is objectively dangerous and causes
  victims death
• act must be unlawful/crime
• defendant must have intended to commit unlawful
  act
• act must be likely (objectively) to cause
  physical harm (not necessarily serious harm)
• reckless manslaughter (gross negligence)
• R v Adomako (1994) HL
• negligence going beyond a mere matter of
  compensation
• showing such disregard for life and safety as to
  amount to a crime

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Manslaughter

• reckless manslaughter (gross negligence)
• R v Adomako (1994) HL
• duty of care
• breach of that duty
• gross negligence (which the jury considers
  justifies criminal conviction)
• any of the following states of mind
• indifference to an obvious risk
• actual foresight of risk coupled with
  determination nevertheless to run the risk
• appreciation of the risk and intention to avoid
  it but coupled with such a high degree of
  negligence in the attempted avoidance that the
  jury considers justifies conviction
• inattention or failure to advert a serious risk
  which goes beyond mere inadvertence in respect of
  an obvious and important matter which the
  defendants duty demanded he should address

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Tort Law

• definition
• aim and function
• relationship with others forms of liability
• branch of civil law
• types of tort
• negligence
• trespass
• remedies

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Tort Law

• French word tort - a wrong
• aim of
• compensating victim for damage, loss or harm
  caused
• imposing
• duty to be careful negligence
• duty to respect autonomy trespass to person
• duty to tell truth about a person - defamation
• duty not to interfere with neighbours land
  nuisance
• duty not to have dangerous premises occupiers
  liability
• duty fixed by law and affecting all persons
  does not arise from prior agreement such as
  contract or trust
• branch of civil law based on claim that defendant
  (tortfeasor) has caused injury or loss

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Tort Law

• Fault element
• depending upon tort
• intention knowing behaviour
• malice bad motive
• negligence - carelessness
• strict liability no element of fault required
  Rylands v Fletcher (1868)
• Lower standard of proof than criminal law demands
• on the balance of probabilities
• Torts include
• deceit defamation confidence nuisance
  occupiers liability trespass negligence

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Trespass

• categories
• trespass to person
• assault battery false imprisonment
• trespass of goods
• trespass of land
• actionable per se
• no need to prove damage
• requires a direct, physical act
• indirect acts may have a remedy in other torts,
• e.g. negligence or nuisance

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Trespass

• Trespass to person - significance
• ancient set of wrongs - little significance in
  personal injury litigation more relevance to
  civil liberties/powers of police
• OAP Act 1861
• common assault battery - s39 Criminal Justice
  Act 1988
• criminal courts able to make compensation order
  s35 Power of Criminal Courts Act 1973
• Sidaway v Governers of Bethlem Hospital (1982)
  appropriate tort for personal injury from medical
  treatment is negligence not battery

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Trespass

• Trespass to person
• assault act causing another to to reasonably
  apprehend immediate violence (frequently
  associated with battery)
• typically requires
• some movement and degree of proximity to person
• more than mere words? but see Tuberville v
  Savage (1669) R v Wilson (1955)
• intention to frighten no need for intention to
  use violence
• battery direct intentional application of force
  to another without consent
• typically requires
• intended physical contact with persons body or
  clothing
• no need for contact to be violent or hostile F
  v West Berkshire Health Authority (1989)
• defendant bears burden of proving consent

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Trespass

• Trespass to person
• false (wrongful) imprisonment unlawful
  prevention of another person from exercising
  freedom of movement
• typically involves
• a direct, positive act preventing person from
  moving in any direction - Sayers v Harlow UDC
  (1958)
• Defences - include
• consent (volenti non fit injuria no injury can
  be done to a willing person)
• self defence
• lawful arrest
• Statutory authority e.g. breathalyser
• parental authority

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Tort of Negligence

• Recent development in civil law
• Donoghue v Stevenson (1932)
• House of Lords decided
• possible to sue a manufacturer other than in law
  of contract establishing the tort of negligence
• Lord Atkin tort based upon a general public
  sentiment of moral wrongdoing for which the
  offender must pay
• manufacturer of goods that cannot be examined
  before they are used owes a duty of care to
  consumer
• duty to take reasonable care that goods are safe
• general principle that each of us owes a duty to
  take reasonable care when doing something that
  may affect others
• Lord Atkin compared this duty to the Christian
  duty towards our neighbours a legal duty not to
  harm our neighbour
• Who is my neighbour?

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Tort of Negligence

• Principle new to courts formed a precedent
• developed from snail in ginger beer to become a
  general legal principle
• Daniel v White (1938) chemical in lemonade
  burned throat
• neighbour principle applied to person selling
  item consumed by an individual
• Grant v Australian Knitting (1936) chemical in
  underwear caused itching
• neighbour principle applied to person selling
  item used by an individual
• now applied to
• treatment of patients
• drivers of vehicles
• professionals giving advice
• employers and employees working conditions
• etc

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Elements of the tort of negligence

• Duty the defendant owed the plaintiff a duty of
  care in law
• Breach the defendant breached the duty of care
• Injury the plaintiff suffered some injury
• Causation the defendants breach of duty caused
  the plaintiffs injury
• Recoverability the type of injury was
  reasonably foreseeable

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Elements of the tort of negligence

• Duty
• Lord Atkin we owe a duty of care to people if
  it is reasonable to foresee that they might
  suffer harm as a result of our acts and omissions
• Anns v Merton Borough Council (1977) two-pronged
  test where there was foreseeability and
  proximity there should be a duty of care unless
  there was a policy issue for holding that no duty
  existed later considered to be too wide a test
• Caparo Industries plc v Dickman (1990)
  three-pronged test
• is loss reasonably foreseeable
• is there sufficient proximity between the parties
• is it fair, just and reasonable to impose a duty
  of care
• special situations such as
• economic loss
• psychiatric damage nervous shock
• liability for acts of third parties

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Elements of the tort of negligence

• Breach
• objective standard
• Bolam v Friern Barnet Hospital Management
  Committee (1957)
• Bolitho v City and Hackney Health Authority
  (1997)
• Nettleship v Western (1971)
• degree of risk
• likelihood of damage occurring
• potential seriousness of that harm
• practicality of precautions
• learners and skilled defendants
• proof of breach
• assistance of statute/criminal conviction
• doctrine of res epsa loquitor (the facts speak
  for themselves)

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Elements of the tort of negligence

• Damage caused
• but for test
• Barnett v Kensington Hospital Management
  Committee (1969)
• Robinson v Post Office (1974)
• Wilsher v Essex Area Health Authority (1987)
• chain of causation
• intervening events
• remoteness of damage
• direct consequences
• reasonably foreseeable
• Wagon Mound (1961)

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General Defences in Tort

• contributory negligence
• consent
• volenti non fit injuria
• special case with rescuers
• illegality
• ex turpi causa non oritur actio
• inevitable accident
• mistake
• necessity
• Statutory authority
• duress
• Limitation Limitation Act 1980

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Remedies in Tort

• damages
• compensatory - restore plaintiff to position he
  would have been in had the tort not been
  committed
• non-compensatory damages
• contemptuous
• nominal
• aggravated
• exemplary
• personal injury compensation special damages
• pecuniary losses earnings/expenses, etc.
• non-pecuniary losses pain/suffering, etc.
• lump sum/structured settlements
• injunctions (equitable remedy discretionary)
• deal with repeatable torts, e.g. defamation
  nuisance
• Interlocutory before case is heard

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Summary

• Torts and criminal law
• both attempt to make sure people behave in an
  acceptable way
• moral implications