Problem Questions Notes

CRIMINAL LAW FOR PROBLEM QUESTIONS

GENERAL PRINCIPLES

ACTUS REUS

Voluntary act amounting to AR:

• If there was, then need to consider whether there was a novus actus or other event that broke the chain of causation.

• If not, then the broad rule is Deller [1952]: no crime has been committed, even if D did his best to commit a crime. Here, D tried to defraud V into buying a car (car was in fact unencumbered).

  • Consider also, that there may be an attempt (see bellow).

• In some cases there may be an omission.

Did D commit a crime by omission? No general omissions liability (must be duty to act).

• Line between acts and omissions: can be hard to distinguish them.

  • Bland [1993]: B (brain dead after Hillsborough) was on life support. Could doctors turn it off? HL: yes, turning off machines is not an act: “absent a duty, the omission to perform what had previously been a duty will no longer be in breach of the criminal law.”

  • Speck [1977]: child touches a man’s penis. Man does nothing to remove hand. Was an act.

    • My thoughts: cases show courts can use ambiguity to reach right moral conclusion. RL issue?

• First question: was there a continuing act?

  • Fagan: D drove onto policeman’s foot and left car there. Act (diving on to foot) was continuing.

• Second question: D under a duty to act? Categories: (i) statutory duty; (ii) law enforcement duty

  • (iii) contractual duty: Pitwood [1902]: operator of a gate over a train line did not shut gate. D guilty of manslaughter.

  • (iv) assumed duties: voluntary assumption of responsibility for another’s welfare:

    • Stone and Dobinson [1977]: S+D (both handicapped adults) took in F (S’s sister). They neglected her. She died. Lane LJ: manslaughter conviction; they had assumed duty. Note: (i) D+S had assumed responsibility by attempting to care for her; (ii) unclear what role biological relationship between S and F was.

• Third question: if there was a duty, what was content of the duty? Herring: do what is reasonable in the circumstances. S+D left the objective/subjective question open.

• Fourth question: has D created a dangerous situation?

  • R v Miller [1983]: M fell asleep with lit cigarette in mouth. Wakes up with mattress on fire. He walks away. HL: convicted of arson. Diplock: conduct for entire period relevant.

    • Can be explained in terms of DC or continuing act.

If a result crime, did D cause the required consequence? Causation

• R v Dalloway [1847]: D driving a horse and cart negligently. Killed V. But, would have happened anyway, so no conviction.

• General starting point: causation is a matter of common sense: Bingham in Kennedy (No. 2): “Causation is not a single, unvarying concept to be mechanically applied without regard to context.”

• But for / factual causation:

  • Hughes [2013]: H was driving (unlicensed) when V, on heroin, swerved across the road and collided with him. SC: H not guilty. Mere presence on the road was not an operating cause: “distinction between conduct which sets the stage for an occurrence and conduct which on a common sense view is regarded as instrumental in bringing about the occurrence.” Shows that factual causation is too wide to be practical as a test / rule.

• Test: “operating and substantial cause.” Smith

  • Substantial: must contribute to the end result — not slight or trifling (see Cheshire).

  • Operating: no break in the chain of causation.

• Was there a break in the chain of causation? Four possible outcomes: (i) concurrent causes; (ii) novus actus; (iii) act of negligible effect; (iv) neither act caused death.

  • Novus actus:

    • Leading case: Kennedy (No. 2) [2007]: K prepared a syringe of heroin for V, who injected himself. V died of an overdose. HL: V’s decision to inject was a “free, deliberate and informed intervention”

    • Element 1: free, deliberate and informed act:

      • If not voluntary, no NA: e.g. A pushes B into C. A is responsible.

      • Where B’s actions are justified, won’t be NA: Pagett [1983]: D used girlfriend (V) as a human shield. Police returned fire, killing V. Goff LJ: “if a reasonable act of self-defence against the act of the accused causes the death of X, we can see no reason why the act … should relieve the accused from criminal responsibility.” Minority reasoning in Gnango.

      • B without knowledge of circumstances, won’t be NA: e.g. postman delivering a bomb.

    • Element 2: Must render A’s contribution no longer operating and substantial cause:

      • Smith [1959]: D stabbed V (soldiers). V was dropped twice on way to medical tent and received incorrect treatment. Lord Parker: no break in chain of causation. NA must render the first would “merely the setting” and no longer an “operation and substantial cause”

      • R v Jordan [1956]: D stabbed V. V was almost healed when he was admitted to hospital and was given antibiotics. Had an allergic reaction and died. CA: medical treatment was NA. Medical treatment was grossly negligent. Case is exceptional.

      • Cheshire [1991]: D shot V at a chip shop. During treatment, V suffered respiratory issues. Tracheotomy scar swelled, blocked windpipe, and V died. Gunshots had stabilised by this point. CA: only in most extreme cases will medical acts be an NA — must render D’s acts “insignificant” in terms of causal potency.

  • Acts of the victim breaking the chain of causation?

    • Roberts [1971]: R gave V a lift in his car. R made indecent suggestions. V jumped out of car. CA: test is whether “injury was the natural result of what D said and did, in the sense that it was something that could reasonably have been foreseen as the consequence of what he was saying or doing.” For it to break chain of causation, V’s action must be ‘so daft’ or unexpected that no reasonable man would have foreseen it. In this case, V’s act was NA.

    • Williams and Davies [1992]: slightly modifies test: action must be “within the range of responses” expected from a V in that situation, bearing in mind any “particular characteristic of V” and fact that in the moment he could act “without thought or deliberation.”

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