04. elements of a crime - ar#1

8/3/2019 04. Elements of a Crime - AR#1

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RECAPRECAP

Principle of legalityPrinciple of legality Elements of certainty and predictability toElements of certainty and predictability to

ensure people know the existence and extent ofensure people know the existence and extent of

the lawthe law

Role of CourtsRole of Courts PrecedentPrecedent

Law makingLaw making Develop the law through interpretationDevelop the law through interpretation Take into account provisions of ECHRTake into account provisions of ECHR


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Actus non facit reumActus non facit reum

nisi mens sit reanisi mens sit rea


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Throughout the web of the

English criminal law one golden

thread is always to be seen, thatit is the duty of the prosecution

to prove the prisoners guilt.


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Woolmington v DPP

per Viscount Sankey

Duty on prosecution to prove guilt

If there is reasonable doubt, prisoner to beacquitted.

No matter what the charge, where the trial


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Burden of Proof

On the prosecution

Standard Of Proof beyond a

reasonable doubt

Exceptions?

Common law defence of

insanity Statute expressly provides

otherwise


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Actus non facit reum nisi

mens sit reaActus reus Prohibited conduct

External elements

Every part of the definition of an offence that isnot the mens rea

Mens rea

Guilty mind Fault element

AR first no AR, no need to talk about MR


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Generally apply in all criminal cases

Eg: Theft

Dishonestly appropriating property

belong to another with the intention ofpermanently depriving the other of it.


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What is Actus Reus?

Prohibited conduct

(not very good)

External elements(too vague)

Every part of the definition of an offence

that is not the mens rea(duh?)


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What is Actus Reus?

Act, omission, or event

Occurring in certain defined circumstances

Resulting in a defined consequence


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Act

Specifically described

Results/Consequences


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Omission

Distinction between act & omission a fine one

Eg. Greener v DPP (1996) The Times, Feb 151996

3(3) of the Dangerous Dogs Act 1991:-

If the owner of a dog allows it to enter a place which

is not a public place but where it is not permitted to

be and while it is there it injures any person, he is

guilty of an offence

Act or omission?


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Omission

Criminal law imposes no obligation onpersons to act so as to prevent the occurrenceof harm or wrongdoing

Save for exceptional circumstances

Compromise need to preserve freedom ofautonomy and the need to protect peoples

lives and wellbeing. (Herring)


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Omission

1.

Express offences

2. Legal duty to act


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Omission

Express offences

Definition of the offence specifies an omission to act

Examples Section 24A Theft Act 1968

he dishonestly fails to take such steps as arereasonable

Section 6(5) Road Traffic ActA constable may arrest a person withoutwarrant if that person has failed to provide aspecimen of breath for a breath test whenrequired to do so


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Omission

Express offences

Ahmad(1986)84 Cr App Rep 64, CA

s1(3) Protection from Eviction Act 1977

Acts of landlord which are likely to

interfere with the peace or comfort of aresidential occupier with the intention tocause him to give up occupation amountsto harassment

Landlord failed to rectify serious defectwith such intention

Held: Not guilty


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Omission

1.

Express offences

2. Legal duty to act


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Omission

2. Where there is a legal duty!

a) Duty arising from holding a public office

b) Duty arising out of contract

c) Duty arising from relationship

d) Duty arising voluntarilye) Duty arising from own wrongful acts


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Omission







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OmissionDuty arising from holding a public office

Dytham (1979) QB 722

An on-duty uniformed policeman witnessed a

murder but did not do anything to prevent it

Charged for CL offence of misconduct in a public

office

Held: there was a deliberate failure and willfulneglect without reasonable excuse/justification.


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Nation

Wednesday October 17, 2007

Inspectors suspended over ferry tragedyBy V.P. SUJATA

PUTRAJAYA: Two Marine Department ship inspectorswho were the officers-in-charge on Saturday when theferry Seagull Express 2caught fire and sank havebeen suspended from duties.


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Omission







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OmissionDuty arising under a contract

Pittwood(1902) 19 TLR 37

Facts


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Pittwood(1902) 19 TLR 37

Held:

Guilty of gross negligence manslaughter

a man might incur criminal liability from aduty arising out of contract."

Duty owed to road users even thoughcontract with railway company


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Instan[1893] 1 Q.B. 450

Facts

per Hawkins, J. Why should not a contract be

implied from such circumstances as those in this

case? Suppose two people agreed to live

together for their mutual benefit, would not the

mere fact of their living together be evidence

from which an undertaking might be implied?


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Instan[1893] 1 Q.B. 450

Not every moral obligation involves a legal duty

There was a clear duty in this case She took in food using the deceaseds money

Under the voluntary head?


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Omission







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OmissionDuty out of relationship

Gibbins andProctor(1918) 13 Cr.App.R. 134

Facts

Duty on Gibbins as father

Duty on Proctor to look after the child

Held: Guilty for murder


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OmissionDuty out of relationship

Airedale NHSTrust v Bland[1993] AC 789

Invasive medical procedure

No consent, no benefit

Not under a duty nor entitled to carry on medicaltreatment

Held: the omission to perform what hadpreviously been a duty would no longer beunlawful

Compare with Smith [1979] Crim.L.R. 251


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O

mission2. Where there is a legal duty!




d)

Duty arising voluntarilye) Duty arising from own wrongful acts


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OmissionDuty from volunteering

Voluntarily assume responsibility, knowing that there wasreliance.

Instan[1893] 1 Q.B. 450But did she volunteer to take care of her aunt?

Stone and Dobinson[1977] Q.B.354

They agreed to take in Stones sister who fell sick.

Neighbour?

Ruffell[2003] EWCA Crim. 122

Agreed to take deceased back into the house.


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Omission





d)

Duty arising voluntarilye) Duty arising from own wrongful acts


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OmissionDuty arising from own act

Miller[1983] 2 A.C.161

Facts

When the accused created a dangeroussituation

Actus Reus of arson is present if accidentally

starts fire and thereafter, recklessly failed to take

any steps to put it out.


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Omission

New categories?

R v Khan & Anor[1998]

Crim.L.R. 830

Duty on drug dealer

owed to druggie?


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Acts or omission?

Fagan[1969] 1 QB 439

Facts

Found guilty of assault

Act or omission?


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Acts or omission?

(The distinctionis a) morally

andintellectually dubious

distinction.

per LordMustill

in Blands case

*


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Acts or omission?

Lord Mustill in Blands case

Removing the feeding tube

positive act or omission?

Leaving the tube but not

letting the nutrients pass

through?

Timed feeding? Essentially, what is being

done is to omit to feed.


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Acts or omission?

Why is it important todistinguish acts from

omissions?


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Acts or omission?NHSTrustA vM, NHSTrust B v H[2001] 1 All ER 801


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Acts or omission?NHSTrustA vM, NHSTrust B v H[2001] 1 All ER 801

Deprivation of life Not providing treatment

Deliberate act resulting in death Death is due to injuries

Includes discontinuing treatment

when no longer in the best interestto do so


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OmissionOmission

RecapRecap

Criminal law imposes no obligation onCriminal law imposes no obligation on

persons to act so as to prevent thepersons to act so as to prevent theoccurrence of harm or wrongdoingoccurrence of harm or wrongdoing

Save for exceptional circumstancesSave for exceptional circumstances

CompromiseCompromise need to preserveneed to preservefreedom of autonomy and the need tofreedom of autonomy and the need toprotect peoplesprotect peoples lives and wellbeing.lives and wellbeing.(Herring)(Herring)


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The StarNation Thursday October 18, 2007

Coward security guard picked upBy ANDREW SAGAYAM

KUALA LUMPUR: A security guard, who fledwhen robbers hit the goldsmith outlet wherehe worked, has been picked up forquestioning.The police want to know why he ran away as

he had a gun while the robbers just hadparang and hammers.


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What is Actus Reus?What is Actus Reus?

Act, omission, or eventAct, omission, or event

Occurring in certain definedOccurring in certain defined

circumstances, and/orcircumstances, and/orResulting in a defined consequenceResulting in a defined consequence


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What is Actus Reus?What is Actus Reus?

Act, omission, orAct, omission, or eventevent

Occurring in certain definedOccurring in certain defined

circumstances, and/orcircumstances, and/orResulting in a defined consequenceResulting in a defined consequence


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Event (or conduct, status, condition)

S 25 Theft Act

Going equipped for stealing, etc.

(1)A person shall be guilty of anoffence if, when not at his place ofabode, he has with him any article foruse in the course of or in connection

with any burglary or theft.


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Street Offences Act 1959

1 Loitering or soliciting for purposes of

prostitution(1)It shall be an offence for a common

prostitute (whether male or female)to loiter or solicit in a street or public

place for the purpose of prostitution.


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Aliens Order 1920

An offence for an alien to be found

anywhere in the UK if leave to land in theUK has been refused

Larsonneur(1933) 97 J.P.206


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Licensing Act 1872

12Penalty on persons found drunk

Every person found drunk in any highway or other

public place, whether a building or not, or on any

licensed premises, shall be liable to a penalty not

exceeding level 1 on the standard scale.

Winzar v CC of Kent(1983) The Times, 28 March


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What is Actus Reus?

Act, omission, or event

Occurring in certain defined

circumstances, and/or

Resulting in a definedconsequence


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Certain defined circumstances

S 25 Theft Act

Going equipped for stealing, etc.

(1)A person shall be guilty of anoffence if, when not at his place ofabode, he has with him any articlefor use in the course of or in

connection with any burglary ortheft.


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Certain defined circumstances

Night Poaching Act 1828

... If any person shall ... by night,unlawfully take or destroy anygame or rabbits in any land,orshall by night unlawfully enter or bein any land, with any gun, net,engine, or other instrument, for the

purpose of taking or destroyinggame, he shall be liable .

04. elements of a crime - ar#1

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