Transcript Criminal Law - Aston University

Substantive Law
Criminal law and tort
Richard O’Neill
University of Hertfordshire
Criminal and Civil cases
• Criminal law
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nature of crime
actus reus
mens rea
types of offences
defences
• Tort law
– nature of tort
– torts
• negligence
• trespass to the person
– remedies
Responsibility and Accountability
• To whom do pharmacists have a responsibility?
• To which persons/bodies might pharmacists be
held accountable for acts and omissions?
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
Actus Reus and Mens Rea
• Elements of a crime
actus reus
+
mens rea
=
crime
• what is the actus reus?
– all elements of the offence excluding the defendant’s
‘mental element’ – i.e. the definition of offences minus
the mens rea requirements of the offence
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
Actus Reus
• voluntary
• accused actions ‘free-willed’
– loss of voluntary control
• automatism
– R v Quick (1973)
• reflex actions
• physical force
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)
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
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)
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)
Mens Rea
• Mens Rea – guilty mind – the fault element
– mental state necessary
– e.g. knowingly; intentionally; maliciously; negligently; recklessly
– intention
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direct intent
indirect/oblique intent
basic intent
specific intent
– recklessness
– negligence
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 defendant’s action and
defendant knew this was the case
» R v Woollin (1998)
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)
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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
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
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)
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existence of duty
breach of duty causing death;
death as a consequence of breach; and
gross negligence which jury considered justify criminal
conviction
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
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
so…uses force…or puts person in fear of being…subjected to force (s8
Theft Act 1968)
– burglary – enters building or part of building as a trespasser with intent to
…steal…inflict GBH…rape..commit unlawful damage, or … having entered
building…. Commits or attempts to steal or inflict GBH (s9 Theft Act 1968)
– others include:
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criminal damage
deception
blackmail
handling stolen goods,
etc
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 (M’Naghten 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))
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
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
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
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
Non-fatal offences against the person
• Non-fatal assaults
– administering poison
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• 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..’
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
Homicide
Murder
Infanticide
Manslaughter
Voluntary
Involuntary
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
and a day after the same’
Sir Edward Coke
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)
• Queen’s peace – exception of killing an enemy in war
• Death within a year and a day – abolished in 1996; lifesupport/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)
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
Manslaughter
• actus reus – as for murder
• voluntary
– provocation
– diminished responsibility
– infanticide
– suicide pact
• involuntary
– constructive
– gross negligence
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 mother’s 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
Manslaughter
• Involuntary manslaughter
– illegal and dangerous act (constructive manslaughter)
• an act which is objectively dangerous and causes victim’s
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
Manslaughter
• reckless manslaughter (gross negligence)
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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 defendant’s duty demanded he
should address
Tort Law
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definition
aim and function
relationship with others forms of liability
branch of civil law
types of tort
negligence
trespass
remedies
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 neighbour’s land – nuisance
• duty not to have dangerous premises – occupier’s 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
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
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
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
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 person’s 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
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
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?”
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
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treatment of patients
drivers of vehicles
professionals giving advice
employers and employee’s working conditions
etc
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 defendant’s breach of duty caused the plaintiff’s
injury
• Recoverability – the type of injury was reasonably foreseeable
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
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)
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)
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
Remedies in Tort
• damages
– compensatory - restore plaintiff to position he would have been in had
the tort not been committed
– non-compensatory damages
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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
Summary
• Torts and criminal law
– both attempt to make sure people behave in
an acceptable way
– moral implications