Unit 2 – Criminal Liability

1. Date:Sunday, 20 October 2019 Unit 2 – Criminal Liability Lesson Outcomes: Identify what is meant by the actusreus of a crime Describe the key elements of the actusreus Apply and give examples of voluntary acts, involuntary acts, omissions and state of affairs • Specification links: • Actus reus: voluntary acts and omissions; causation Key vocabulary Actus reus, omissions, voluntary/involuntary acts, state of affairs • Starter: In your own words, define the following crimes: • Theft • Murder 1

2. Two elements of a crime Actus Reus (Guilty act) Mens Rea (Guilty mind) ‘Actus non facit reum nisi mens sit re’ An act does not create a guilt unless the mind is also guilty "No act is punishable unless it is performed with a criminal mind."

3. An example. If I raise my hand - to scratch my head - and hit Ben, I display the actus reus of battery. But, do I have the necessary mens rea? Suppose D throws a stone (the actus reus) with the intention of hitting Tom (mens rea), but instead breaks the window of a building. What crime could be, or has been, committed?

4. Where do we find actus reus? Always refer to the definition of the particular offence in order to ascertain its actus reus: A person is guilty of theft if he dishonestly appropriatespropertybelonging to another with the intention of permanently depriving the other of it; and ‘thief’ and ‘steal’ shall be construed accordingly.

5. Now try these An assault is any act which intentionally or recklessly causes another person to apprehend immediate and unlawful personal violence An assault is any act which intentionally or recklessly causes another person to apprehendimmediate and unlawfulpersonal violence

6. Battery The unlawful application of force to another The unlawfulapplication of forceto another

7. Murder 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, etc. die of the wound or hurt, etc. within a year and a day after the same."

8. Murder 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 naturaunder the King's peace, with malice aforethought, either expressed by the party or implied by law, so as the party wounded, or hurt, etc. die of the wound or hurt, etc. within a year and a day after the same.

9. What is Actus Reus? Actus reus could be… An act… A state of affairs An omission Predictions…

10. a) An Act (must be voluntary) Can you think of any examples of where a person make commit the act of a crime by accident on involuntarily?

11. Hill v Baxter (1958) Case Law Actus Reus– involuntary act D was behind the wheel when his car collided with another; at his trial on a charge of dangerous driving, he claimed he had been overcome by an unknown illness and had been unconscious.  Principle – Some credible evidence must support a claim of sudden illness or concussion, they said, usually going beyond D's mere assertion, but (Lord Goddard CJ dissenting) the burden of proof thereafter is on the prosecution to show that the act was a voluntary one.  Lord Goddard, quoting Humphreys J in Kay v Butterworth 1945 resurrected the now famous and hypothetical ‘Swarm of Bees’. Guilty

12. b) State of affairs Write a case note for the case of Larsonneur (1933) (p.186) Key Facts Ratio decidendi TIF – consider the scenario in the box on p.187

14. “Good Samaritan” France has a law which makes a person responsible for helping other people in an emergency situation, even though they are complete strangers. You can be charged for taking pictures rather than helping or not helping the victims of a car crash. What are the advantages and disadvantages of this type of law?

15. Should Zoe be guilty of an offence? Zoe is sitting by a swimming pool in the grounds of a hotel. Jason is swimming in the pool. He is the only person in the water and there are no other people near the pool. Jason gets out of the pool and while walking around it he slips and falls into the water. He is knocked unconscious. Zoe sees this happen but she does nothing. Jason drowns.

16. Would it make any difference if Zoe were a lifeguard? Why? Would it make any difference if Jason were Zoe’s young son? Why?

17. D invites his sister to come and stay with him. Whilst she is there, she refuses to eat any food and dies of malnutrition D walks home from his job as a lifeguard. As he walks past the local river he sees a child in there struggling. He walks past. DD’s daughter had diabetes. As a result of their beliefs, they refused to let doctors treat her with insulin and she died. D walks home from his job as a lifeguard. As he walks he sees a child in the local river struggling. He jumps in to save V, but in the resuscitation accidently breaks one of her ribs resulting in D’s death D is searched by a police officer who asks him if he has anything in his pockets. D replies no, but has a needle which stabs the officer.

18. Exceptions to the rule on omissions In some cases a failure to act is seen as an actus reus. This is where there is a duty on the behalf of D to act. Statutory duty Contractual duty Duty through a relationship A duty which has been voluntarily undertaken Duty through an official position Duty through a chain of events

19. Research the exceptions to the rule

20. R v Gibbins & Proctor [1918] 13 Crim App Rep 184 D and his common law wife failed to feed the man's 7 year-old child, Nelly, and she died from starvation. The woman hated Nelly, and was clearly the moving force.  Principle – Where there is the duty to act, failure to do so can lead to liability even for murder if the necessary mens rea is present. The woman was held to be liable because, while the child was not hers, she was living with the man and had accepted his money for food. The courts regarded the parent's duty towards a young child as so self-evident as not to require analysis or authority.

21. R v Stone & Dobinson [1977] 1 QB 354 Ted Stone was 67, totally blind, partially deaf had no appreciable sense of smell and was of low intelligence. He lived with his housekeeper and mistress of 8 years, Gwendolyn Dobinson aged 43 who was described as ineffectual and inadequate. Ted's sister Fanny came to live with them. She had previously lived with another sister but had fallen out with her. She had mental problems and was suffering from anorexia nervosa. Ted and Gwendolyn took her in and agreed to look after her. However, Fanny's condition deteriorated and she was found dead in her bed in appalling conditions. Principle – Stone and Dobinson were found liable for her death as they had assumed a responsibility to her by taking her in. They failed to look after her and ensure she got the medical help she needed.

22. R v Pitwood [1902] TLR 37 The defendant was employed by a railway company to man the gate at a level crossing. The defendant lifted the gate to allow a cart to pass and then went off to lunch failing to put it back down. A train later collided with a horse and cart killing the train driver. Principle – The defendant was liable for the death of the train driver as it was his contractual duty to close the gate.

23. R v Dytham [1979] QB 722 The defendant was a police officer. He stood by whilst a bouncer kicked a man to death. He was charged with the offence of misconduct in a public officer. He argued that the offence could not be committed by an omission as it specifically requires misconduct. Principle – The offence of misconduct in a public offence can be committed by an omission. The defendant's conviction was upheld.

24. R v Naughton (2001) Unreported An off-duty police officer from Birmingham, did not intervene when one of his friends attacked a restaurant owner. Principle – He was convicted of misconduct in a public office. He resigned from the police force without a pension, and was ordered to do 200 hours’ community punishment.

25. R v Miller [1983] 2 AC 161 House of Lords The defendant had been out drinking for the evening. He went back to the house he had been staying in and fell asleep on a mattress with a lighted cigarette in his hand. He awoke and saw that the cigarette had started a small fire. Upon seeing the fire, he then got up and went to another room and went back to sleep. At his trial, the prosecution did not rely on the acts of the defendant in falling asleep with a lighted cigarette as being reckless, but relied solely on the grounds that upon becoming aware of the fire he failed to take steps to put the fire out or call the fire brigade. Principle – The defendant had created a dangerous situation and owed a duty to call the fire brigade upon becoming aware of the fire. He was therefore liable for his omission to do so.

26. DPP v Santana Bermudez (2003) UKHL 6 D injured a woman police officer by allowing her to search him, knowing he had hypodermic needles in his pockets which stabbed her. D denied having any needles or sharps when asked. D was convicted by the Magistrates, but acquitted at Crown Court. On appeal by way of case stated from the Crown Court, prosecutor's appeal was allowed. Principle – Here someone created a danger and thereby exposed another to a reasonably foreseeable risk of injury, there was an evidential basis for the actus reus of an assault occasioning actual bodily harm. D had “created a danger by an act … that act was a continuing act”.  The risk of injury was foreseeable.

27. Duty Arising From Statute • s.1 The Children and Young Persons Act 1933 makes omissions culpable by a person over 16 failing to look after a child under 16, so an omission is part of the actus reus of that crime. • s170 Road Traffic Act 1988 failing to stop at a road accident is a criminal offence. The omission to stop is part of the actus reus. • Under breathalyzer law failing to provide a breath sample or a specimen for analysis s6 Road Traffic Act 1988 is also an crime of omission, and under other sections so is failing to give a name and address.

28. If a doctor turned off a life support machine, would this count as an omission for the actus reus of murder or manslaughter???

29. Doctor’s Duty Discontinuing treatment of a patient is not an omission. Airdale NHS Trust v Bland (1993) Bland had been crushed at the Hillsborough disaster. As a result he was severly brain damaged & in a pvs. Doctor’s asked for a ruling that could stop them feeding him. Court ruled that doctors could even though this meant that Bland would die. This was held to be in his best interests.

30. Issues surrounding omissions Should England have a Good Samaritan law? There is a contradiction over the duty of doctors. Under the Domestic Violence, Crime and Victims Act 2004 all members of a household are liable for failure to protect a child. The outcome in Stone v Dobinson can be seen to be harsh. So many exceptions mean that it is not certain when a duty to act will exist – this means the law is capable of expanding to cover more situations.

31. Khan and Khan (1998) Ds supplied heroin to a new user who took it in their presence and then collapsed. They left her alone and by the time they returned to the flat she had died. The Court of Appeal in it’s obiter said that there could be a duty to summon medical assistance in certain circumstances. So that a D could be liable for not doing so.

32. Plenary • Neigh neigh … choochoo … • Fanny’s been awful quiet recently • Is that a needle in your pocket, or are you just unhappy to see me? • My wicked stepmother didn’t even give me an apple! • I may be a policeman, but I don’t care. • Cigarette meets mattress • Isn’t he vegging out? Can we (not) do something? • Aunt I a lovely girl? • 1 Mark for the name • ½ a mark for the facts • 1 mark for the duty