Introduction To Criminal Law, Basic Concept Of Liability Notes

Criminal Law- Herring Chapter 2 The reason we don't criminalise omissions is because it is telling someone to do a good thing, which removes their ability to make their own positive moral choices and therefore reduces the ability to have a fulfilling life. * Actus reus is the conduct element of a crime, p.85 * A conduct crime is one in which a forbidden action is taken * A result crime is one in which a forbidden act is taken and causes a particular result * Where an act is not taken voluntarily, the defendant is an "automaton" and is not guilty p.87 * A person is guilty of a crime due to their failing to act, only when they have a duty to act * Statutory crimes cannot find someone guilty on the basis of omission- p.88 * Duties to act: Statutory duty (e.g. to drive safely), law enforcement (duty of a policeman to protect the public), contractual duty (a duty that may arise through employment e.g. as a train driver), assumed duties (voluntarily taken on duties of care e.g. agreeing to look after a sick person). P.88-89 * Other duties include failing to stop others using your property for the purpose of crime; a continuing action where actus reus and mens rea combine e.g. Fagan case p.91; where you have created danger and must therefore remove it. * The defendant is under a duty to act if it is reasonable that they should do so, e.g. a mother finds her child drowning in a shallow pond- p.94 * One can be liable for being in a certain situation, without having undertaken an actus reus. E.g. Larsonneur was in the UK having been returned there by the Irish police- possibly unfair since she did not wish to return to UK though in going to a country where she had no more right to be than in the UK, she took the risk of being returned. P.100 * Vicarious liability is where one person is liable for the actions of another e.g. an employer for an employee * * Causation is left to the common sense of a jury- p.101 Factual causation is the test that asks whether "but for the action of the defendant" would the victim have suffered in the way and time that they did. This is insufficient e.g. if I invite someone to my house and on the way they are attacked, it is surely not my fault. * A legal cause is "operating and substantial". Substantial means that the action must contribute in a significant way to the crime. Operating means that there has been no break in the chain of causation. * A novus act interveniens is an act of a third party that excludes the original act from the chain of causation. P. 104 this can only be actions that are free, voluntary and informed- p.109. Examples of acts that are not of such a nature: where someone is trying to preserve their own life, where law enforcement causes injury, and where actions are in accordance with moral obligation. If someone doesn't know the consequences of their actions they are not informed- p.109-110. * Courts are reluctant to accept arguments whereby poor medical treatment is calimed to have caused a victims death, due to the fact that no medical treatment would be needed but for the direct action of the criminal: the argument that other elements of society are to blame could divest people of responsibility. A person in a society with no healthcare could highlight this as the cause of death if we accept such an argument. It is wrong because healthcare is a rectifying influence and although it may not be enough, what effect it does have is to reverse the effect of the criminal, while, should we follow such a defence argument, criminals in societies with worse healthcare systems would be less liable, which is clearly ridiculous. Therefore it does not change the actual harmful (as oppose to rectifying) act and only when medical treatment actually contributes to harm is it a break in the chain of causation. * We should distinguish between bad medical treatment when treating the wound from injuries sustained during the crime, and injuries sustained that are unconnected to the original crime p.111. However, even if we observe that the first situation is true, it does not prove whether the chain is broken, therefore it has limited usage. * Omissions cannot break the chain of causation: failing to provide medical treatment does not prevent a crime from having taken place. * The attitude in the case of a drug dealer supplying a drug to someone who injected it and died (R v Kennedy) is that the supplying and injecting is one action and therefore the drug dealer is guilty. P.112-113. However this seems unfair since there was an opportunity for the user to change his mind and abandon the action of injecting. It was not inevitable that the user, having been supplied, was going to inject and he made a willing, informed and free decision that, I believe, broke the chain of causation. * In actions by the victim that could be said to interrupt the causative chain, we should look at the physical cause of harm and what produced it. E.g. in Blaue 

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