Notes on Criminal Law & Practice

What is a Voluntary Act (Voluntariness)?

In order to establish actus reus, it is necessary for the defendant to have control over their actions or omissions. The act must be a result of the defendant’s voluntary choice. For example, a police officer who has a duty to intervene but chooses not to do so can be held criminally liable. However, if a person reacts instinctively to a stimulus and commits a criminal act unintentionally, they may not be held criminally liable. For instance, if a person becomes unconscious while driving due to being struck by a stone or sudden illness.

What is a Causation? 

Causation refers to determining whether the defendant’s conduct or omission caused the harm or damage. There are two aspects of causation: factual causation and legal causation.

• Factual Causation: This is the starting point and involves applying the “but for” test. The prosecution must establish that the harm caused would not have occurred if it weren’t for the defendant’s conduct. However, if the harm would have happened regardless of the defendant’s actions, there is no factual causation. For example, if a defendant pushes someone in a queue, causing them to fall and break their hip, which later leads to their death, the defendant can be held responsible based on factual causation.
• Legal Causation: Legal causation is established by showing that the defendant’s act was a significant cause of the consequence and that there were no intervening events that broke the chain of causation. The defendant’s act does not need to be the sole cause, as the actions of others or even the victim themselves may also contribute to the result. However, if the defendant’s act or omission only minimally contributes to the harm, it may be disregarded based on the de minimis principle. Additionally, the defendant must take the victim as they are, even if the injury or death was not reasonably foreseeable. This is known as the “thin skull” or “eggshell skull” rule. For example, if a defendant stabs a person who refuses a necessary blood transfusion due to religious beliefs and dies as a result, the defendant can still be held liable.

What is Novus Actus Interveniens?

A novus actus interveniens is an act or event that breaks the causal connection between the defendant’s wrongdoing and the final consequence. There are three ways the chain of causation can be broken:

• Natural Event or “Act of God”: In rare cases, an external occurrence or factor, such as lightning or a falling tree, may break the chain of causation if it is the sole or immediate cause of the prohibited consequence.
• Acts of a Third Party: Generally, the omissions of a third party do not break the chain of causation. However, the acts of a third party can break the chain if their actions are free, deliberate, and informed, and if they directly cause the prohibited consequence. The defendant can still be held liable under legal causation when third parties contribute to the result.
• Acts and Omissions of the Victim: Unless the victim’s actions were unreasonable and disproportionate in the circumstances, they will not break the chain of causation. For example, if a victim injures themselves while attempting to escape harm caused by the defendant, the chain of causation is not normally broken unless the victim’s actions were unforeseeable.

Conduct Crime vs. Result Crime:

• Conduct Crime: These offenses require the prosecution to prove that the defendant acted in a particular manner and certain circumstances were present. An example is the offense of rape, where the prosecution must prove the lack of consent by the victim in addition to the act of penetration.
• Result Crime: These offenses require the prosecution to prove that specific consequences flowed from.

What is the Intention?

Intention refers to a person’s aim or purpose when they commit an action. To prove intention, the jury must be convinced beyond reasonable doubt that the defendant intended the specific outcome of their actions. There are three types of intent:

a) Direct Intent: This occurs when an individual acts with the direct aim or purpose of achieving a particular result.

b) Oblique Intent: Oblique intent is not focused on the individual’s aim or purpose directly. It arises when a person intends the consequences of their actions or realizes that those consequences are highly likely to occur.

c) Transferred Intent: Transferred intent applies when the mental state (mens rea) of one crime leads to the act (actus reus) of the same crime, even if the outcome is unintended. For example, if someone intended to harm one person but accidentally harmed another instead. However, transferred intent cannot be used to hold the accused responsible for a different offense.

What is the Recklessness?

Recklessness refers to taking an unjustified risk that may cause harm to others. A defendant cannot be criminally liable if they genuinely did not perceive the risk involved. The “Cunningham recklessness” test, named after a legal case, established two elements:

a) The defendant was aware of the risk that their conduct could lead to a specific result. It is enough for the defendant to foresee the risk; it doesn’t have to be highly likely or obvious.

b) The risk was unreasonable for the defendant to take, considering the circumstances.

What is the Negligence? 

Negligence is a lower level of culpability and plays a limited role in criminal liability. It used to be relevant for some driving offenses but has been largely replaced by recklessness. Negligence is assessed using an objective test: whether the defendant’s behavior was reasonable given the circumstances. If the defendant’s actions deviate from what a reasonable person would do, they are considered negligent.

Negligence alone is rarely enough to establish criminal liability. However, the absence of negligence can be used as a defense in some statutory offenses. Gross negligence, which denotes extremely severe negligence, may lead to a criminal conviction if it can be proven that the defendant’s negligent actions caused someone’s death and the degree of negligence justifies criminal punishment.

Actual bodily harm (ABH) is defined as any injury or harm that interferes with the health or comfort of the victim. It can include severe bruising and actions like choking. To charge someone with assault occasioning ABH, two requirements must be met. First, the defendant must commit an assault or battery that causes the victim to suffer actual bodily harm, which can include bruises, grazes, or broken teeth. The harm should not be trivial and must be more than fear, panic, or distress. Second, the defendant must have intended or been reckless about the assault or battery. It is not necessary to show that the defendant intended or foresaw the actual bodily harm. It must be demonstrated that the defendant’s actions caused the bodily harm experienced by the victim. Expert evidence may be required to support the charge when psychological injuries are claimed.

What is the Robbery? 

Robbery is defined by Section 8 of the Theft Act 1968. It consists of two elements: a) Stealing something, and b) Using force immediately before or during the theft to put someone in fear or to steal.

The force used must be specifically for the purpose of stealing. The person committing the robbery must be aware of their use of force and intend to use it to steal. It is not considered robbery if force is used only to escape from the scene of the theft.

If someone is convicted of robbery or assault with the intent to rob, they can be sentenced to life imprisonment.

Note: If the person is trespassing when they commit the act, it becomes a burglary offense. If they are carrying a weapon during the trespass, it becomes an aggravated burglary offense.

What is the Burglary? 

The offense of burglary, as defined by Section 9 of the Theft Act 1968, has two sub-offenses: Section 9(1)(a): Entering a building or part of a building as a trespasser with the intention to commit theft, criminal damage, or inflict grievous bodily harm. This offense is committed when the defendant enters the building.

Section 9(1)(b): Having already entered a building or part of a building as a trespasser, committing theft, attempted theft, infliction of grievous bodily harm, or attempted infliction of grievous bodily harm. This offense is committed when the defendant, once inside the building, commits one of the listed crimes.

The actus reus (physical elements) of burglary include:

• Entry: There must be effective entry, but the burglar’s entire body doesn’t need to enter the building. Even partially entering or sticking body parts through a window can be considered effective entry.
• Building or part of a building: It includes permanent structures like houses, flats, office blocks, vehicles, vessels (e.g., caravans, houseboats), and immobile containers.
• Trespasser: If someone enters a piece of land without legal authorization, they are considered a trespasser. Even if they initially had consent to enter but exceed that consent, they become a trespasser.

The mens rea (mental element) for burglary under Section 9(1)(a) has two parts:

1. The defendant must intend to be a trespasser or be reckless about their status as a trespasser. The prosecution must prove that the defendant knew they didn’t have permission to be in the building or were reckless about whether such permission existed.
2. The defendant must have the intention to commit one of the listed offenses (theft, inflicting grievous bodily harm, or causing criminal damage) at the time the offense is committed.

It’s important to note that if the defendant entered the building with the intention to steal but later changed their mind, the offense of burglary is still committed. Similarly, if the defendant entered the building without intending to steal but later decides to do so, it wouldn’t be considered burglary. If there was an intent to cause criminal damage at the time of entry, it falls under Section 9(1)(a).

What is a Voluntary manslaughter? 

These are killings which have the actus reus and mens rea of murder, but due to existing circumstances it should not be called murder,

Liability is reduced due to the defence pleading one of the three partial defences to murder.
i.e. a defendant who successfully pleads “partial defences”

• loss of control,
• diminished responsibility, or
• suicide pact

To a charge of murder will be guilty of voluntary manslaughter.

What is an involuntary manslaughter? 

involuntary manslaughter Arises where the defendant commits the actus reus of killing but does not have the mens rea (intent to kill or cause Grievous Bodily Harm) for murder. But there is sufficient fault to justify criminal liability.

Examples of involuntary manslaughter include,

• constructive (or unlawful act) manslaughter.
• gross negligence manslaughter,
• reckless manslaughter, and
• corporate manslaughter

Magistrates’ court

• Trials tend to be heard by a bench of 3 lay magistrates or a District Judge.
• The Magistrates’ Court can ‘commit’ the case to the Crown Court if they believe there is a case for the defendant to answer.
• Sentencing are limited to
• imposing a maximum of 6 months’ imprisonment in respect of one offence, or
• Total of 12 months for two or more offences (consecutive terms).
• While the maximum (level 5 on the standard scale) fine a magistrates’ court could impose for offences committed before 13 March 2015 was capped at £5,000, ‘magistrates’ courts can impose unlimited fines for offences committed after 13 March 2015.
• Offences that are subject to a maximum fine by reference to levels 1-4 on the standard scale are subject to a limited fine.
• The practice and procedure is governed by the Magistrates’ Courts Act 1980 (MCA 1980) and the Criminal Procedure Rules (2015).
• The magistrates’ court has the following jurisdiction in criminal cases:
• dealing with preliminary matters during the early stages of all prosecutions including deciding defendants’ bail applications;
• Hearing summary offences, including either-way offences, which remain in the magistrates’ court and sentencing defendants, convicted of these offences – all indictable offences are sent to the Crown Court.
• Dealing with the allocation procedure of an either-way offence for which the defendant has indicated a not guilty plea.
• Committing a defendant convicted of an either-way offence to the Crown Court for sentence where the magistrates consider their maximum sentencing powers to be insufficient.
• Sending an either-way offence to the Crown Court which the magistrates’ court has decided should be tried at the Crown Court or because the defendant has elected trial at the Crown Court.
• Sending indictable-only offences to the Crown Court for trial.

Crown Court

• The trial is presided over by a judge (the trier of law) and a jury (the trier of fact).
• The judge decides legal issues and directs the jury on the law, whilst the jury determines factual issues, i.e., whether a defendant is guilty or not guilty.
• The judge preside over proceedings in the Crown Court:
• High Court judges; the most serious offences.
• Circuit judges; offences include rape are often heard by a circuit judge.
• Recorders who are part-time judicial officers; all other offences usually heard by a circuit judge or recorder.
• Sentences; Crown Court judges have the authority to pass sentences up to and including life imprisonment, although sentences for particular crimes are limited by statute.
• The practice and procedure is governed by the Senior Courts Act 1981 and the Criminal Procedure Rules (2015).
• The Crown Court has the following jurisdiction:

• tries either-way offences sent for trial;
• tries indictable-only offences and any related offences;
• sentences offenders convicted before it and those who are committed for sentence by the magistrates’ courts;
• Hears an appeal against conviction and/or sentence arising out of a decision made by a magistrates’ court or youth court.

Youth Court

• Generally, defendants who are under 18 years of age are dealt with in the specialist jurisdiction of the youth court.
• All magistrates’ courts have a youth court panel of specially trained magistrates who have been appointed because of their suitability for dealing with youth cases.

The practice and procedure is more informal and less intimidating than in the adult court. A District Judge may also sit alone in the youth court.

The Court of Appeal (The Criminal Division)

• Presided over by the Lord Chief Justice.
• Cases are normally heard by
• the Lord Chief Justice sitting with 2 puisne judges; or
• A Lord Justice of Appeal sitting with 2 ordinary judges.
• Hears appeals against conviction and/or sentence from cases tried in the Crown Court.

It also hears appeals on ‘points of reference’ from the Attorney-General (A-G) on points of law and sentences that are considered too lenient.

What are the rights of a suspect in the police station?

Right to legal advice: Suspects have the right to privately consult with a solicitor while in police custody. This right ensures protection against the abuse of their legal rights during the investigation.

Rights to accommodation and food: Suspects are entitled to an adequately heated, cleaned, and ventilated cell with access to toilet facilities. They must also receive at least 2 light meals and 1 main meal within a 24-hour period, taking into account any special dietary requirements.

Rights to medical treatment: If a suspect appears to be physically ill, injured, in need of clinical attention, or suffering from a mental disorder, they have the right to receive appropriate medical attention as soon as reasonably possible. A healthcare professional must be called if the detainee requests medical attention.

Right to rest and breaks from questioning: Suspects must be given a minimum of 8 hours of continuous rest in any 24-hour period, preferably at night, free from questioning. Additionally, breaks during interviews should coincide with regular meal times, and short breaks should be provided approximately every two hours.

Right to an interpreter: If a suspect is deaf, has speech difficulties, or does not understand English, they have the right to an interpreter. This ensures effective communication with police officers, interviewers, solicitors, and appropriate adults, in compliance with the EU Directive on Interpreters and Translation.

Right to an appropriate adult: In the case of a young person, mentally disordered individual, or someone otherwise mentally vulnerable, no interview should take place without the presence of an appropriate adult. This right is in addition to the right to legal advice, and the custody officer should identify vulnerable detainees at the beginning of their detention.

What are the Types of Identification Procedures? 

There are four types of identification procedures designed to ensure accurate identification of suspects and protect against mistaken identification. These procedures are:

Video Identification:

The witness is shown moving images of the suspect along with eight other individuals who resemble the suspect in terms of age, appearance, and lifestyle.
Unusual physical features of the suspect should be concealed or replicated on the other people.
If there are two suspects with similar appearances, at least 12 images should be shown to the witness.
Video identification is the initial preference, except when impractical or when an identification parade or group identification is more suitable and practical.

Identification Parade:

The witness sees the suspect among a line of other individuals who resemble the suspect.
The investigating officer cannot be present.
The parade should consist of at least eight people who resemble the suspect in appearance and lifestyle.
The suspect has the right to object to the arrangements or participants and can choose their position in the line.

Group Identification:

The witness sees the suspect in an informal group outside a controlled environment like a police station, such as at a shopping center.
The chosen location should have other people present in passing or informal groups, allowing the suspect to join them and be seen by the witness simultaneously.

Confrontation:

Used when other options are unavailable and must follow Code D guidelines.
The witness is taken directly to the suspect and asked if they are the person in question.
The suspect’s consent is not required for this procedure.

Notes:

The suspect’s consent is not necessary for video identification, identification parade, or group identification. However, if the suspect refuses, their refusal can be used as evidence against them in a trial, and police may proceed covertly or make other arrangements to test witness identification.

Video identification and identification parades are considered fairest to the suspect, providing them with the best chance of not being selected.
When a suspect is arrested based on an eyewitness description, a formal identification procedure (usually a video identification) is required to confirm the witness’s identification of the suspect.

If the suspect significantly alters their appearance before the identification procedure, alternative identification methods may be considered, and the change in appearance can be presented as evidence in court.

The suspect has the right to free legal advice and the right to have a solicitor or friend present during identification procedures.

If identification evidence is obtained in violation of Code D, the defense can seek to have the evidence excluded at trial on the grounds of unfairness under section 78 of PACE 1984.

The police, after arresting, detaining, obtaining evidences and questioning someone, may:

• Take no further action;
• Give an informal warning;
• Issue a simple caution (adults) or warning (youth);
• Issue a conditional caution;
• Refer papers to prosecuting authorities to decide if they should by charged or not for the offence.

Stay tuned for more notes ………