Common Assault and Battery

Introduction

Ask the ordinary woman on the street what she understands by the word “assault” and you will probably find an array of misconceptions. The word assault is generally taken to denote any kind of physical harm inflicted on one person by another: from minor bruising to broken bones. As law students, we will come to know better; we will come to realise that non-fatal offences against the person are too complex and wide-ranging to be lumped together under one simple heading. By the time you have finished reading this article, you should be able to explain the key differences between assault and battery.

The Big Picture

Non-fatal offences against the person is a broad category of criminal offences, covering all kinds of harm done to a human being short of murder (which, of course, would be classified as a fatal offence against the person). The category includes very minor harm (common battery), reasonably serious harm (actual bodily harm, or ABH), and very serious harm (grievous bodily harm, or GBH). It also includes common assault which, as we shall soon discover, involves no physical harm whatsoever.

For the purposes of this article, we will narrow our discussion to just two non-fatal offences: common assault and common battery. Consider the diagram below:

Flow Chart

Assault

Assault is a common law offence, but its existence is explicitly recognised by statute. Section 39 of the Criminal Justice Act 1988 states the following:

Common assault and battery shall be summary offences and a person guilty of either of them shall be liable to a fine not exceeding level 5 on the standard scale, to imprisonment for a term not exceeding six months, or to both.

It is vital to note that section 39 does not provide the definitions of common assault and battery; it does not lay-out the actus reus and mens rea requirements of either offence. The only purpose of section 39 is to recognise that these common law offences exist, and to set out the sentencing parameters.

The definitions of both assault and battery, therefore, come from case law. In Collins v Wilcock (1984) Goff LJ provided the standard definitions:

The law draws a distinction…between an assault and a battery. An assault is an act which causes another person to apprehend the infliction of immediate, unlawful force on his person; a battery is the actual infliction of unlawful force on another person.

The actus reus of assault

There are two actus reus requirements for assault:

  1. There must be some kind of act;
  2. Which causes the victim to apprehend the infliction of immediate, unlawful force.

Essentially, what the prosecution will have to prove beyond reasonable doubt is that D performed some kind of act which caused V to be afraid that he was about to be subjected to force.

In Lodgon v DPP (1976), D opened a drawer in his office to reveal what he claimed to be a loaded gun. D showed the weapon to V, who feared that D was about to fire the gun at him. Even though the gun was, in fact, a fake; the court held that D’s actions were sufficient to amount to an assault.

The requirement that there be “some kind of act” has been interpreted very broadly. In R v Ireland (1997) D made silent telephone calls to a number of women. He did not speak, he did not make a sound, he only breathed down the receiver. The House of Lords decided that this was enough to amount to an assault:

The victim is assailed by uncertainty about his intentions. Fear may dominate her emotions, and it may be the fear that the caller’s arrival at her door may be imminent. She may fear the possibility of immediate personal violence.

The second requirement – that the victim apprehends immediate unlawful force – excludes situations where it is obvious that the defendant either cannot or will not use force. In R v Lamb (1967) D pointed a gun at someone who knew that it was unloaded. Since D could not possibly have fired a bullet into V, there was no assault.

Fear of immediate force is necessary, although this requirement is not read literally. Immediate, for our purposes, does not mean instantaneous, but imminent.

In Smith v Chief Superintendent of Woking Police Station (1983) D trespassed onto V’s garden and peered through her window. It was roughly 11pm and V was in her nightclothes. As one would expect, the sight of an unknown stranger peering through her window caused her to fear the imminent application of unlawful force. She was afraid that D would break into her property and cause her some harm.

Although the defendant in Smith did not fear that force was going to be used against her at the precise moment when she spotted the defendant, it was sufficient for an assault conviction that she feared the application of force in the very near future.

The actus reus of battery

The actus reus of battery is the infliction of some kind of unlawful force on another person.

In Collins v Wilcock (1984) a police officer unlawfully took hold of a woman’s arm to stop her from walking away: since the officer was not attempting to arrest the victim, he had no right to physically restrain her. The High Court decided that the police officer had committed a battery:

It has long been established that any touching of another person, however slight, may amount to battery…every man’s person being sacred, and no other person having a right to meddle with it, in any the slightest manner.

In R v Thomas (1985) D touched the bottom of a woman’s skirt and rubbed it. The Court of Appeal decided that:

There could be no dispute that if you touch a person’s clothes while he is wearing them that is equivalent to touching him.

Those two cases: Collins and Thomas make it perfectly clear that a battery is committed even where the touching is only very minor; and the relatively minor nature of the offence is reflected in the maximum penalty on conviction: six months imprisonment.

The issue of consent

What about those cases where V consents to D’s touching? For example, if Laura consents to Jennifer giving her a hug, is this conduct classified as battery?

In R v Slingsby (1995) D and V engaged in “vigorous” consensual sexual intercourse, during the course of which D’s signet ring caused injury to the victim. This injury led to blood poisoning, which led to the victim’s death. The victim’s consent meant that D was not guilty of battery or any other form of assault. Remember, the force must be unlawful and if two mature adults consent to sexual intercourse, however “vigorous”, there can be no battery.

There are also situations in which the courts will imply consent. For example, if Deon is visiting central London and needs to ride the Tube during rush hour, it is very likely that he will be crammed into an overheating carriage in direct contact with other commuters. Is everybody on the train going to be guilty of battery because they have failed to hold the following conversation:

I say, Old Boy, it’s rather cramped in this carriage. Do you mind if I press myself against you?

Of course, it would be completely unrealistic to expect every passenger to obtain explicit consent from every other passenger.

This issue was tackled in Collins v Wilcock (1984) where it was held that the ordinary “jostlings” of everyday life were not battery:

Although we are all entitled to protection from physical molestation, we live in a crowded world in which people must be considered as taking on themselves some risk of injury (where it occurs) from the acts of others which are not in themselves unlawful.

So most of the everyday contact between humans: a friendly handshake, paternal pat on the back, or an accidental collision in a busy shopping mall, are not examples of battery. The courts imply that we all consent to such contact in our day-to-day lives.

Indirect battery

Is it possible for a battery to be committed when D never makes any physical contact with V? What if D sets a booby trap for V; stretches a thin line of string across a corridor and waits for V to walk into it and trip over?

In R v Martin (1881) D placed an iron bar across the doorway of a theatre and then switched off the lights. In the ensuing panic, several members of the audience ran into the iron bar and obtained injuries. The court held that D had committed a battery.

Similarly, in DPP v K (1990) a fifteen year-old schoolboy stole some sulfuric acid from his science lesson and hid it in a hand drier. He then returned to his class, intending to return to the drier at a later time and remove the acid. Before he was able to do so, an unfortunate victim used the hand drier and was sprayed by the acid. The Magistrates Court acquitted the boy and his case was appealed by the prosection. In the High Court, Parker LJ said:

If a man laid a trap for another into which he fell after an interval, the man who laid the trap would during the interval be guilty of an attempt to assault, and of an actual assault as soon as the man fell in.

Both cases make it clear that D can be found guilty of battery even though D has no physical contact with his victim.

Mens rea of assault and battery

The mens rea for assault is either:

  1. An intention to cause another to fear immediate unlawful personal violence, or
  2. Recklessness as to whether such fear is caused.

The mens rea for battery is either:

  1. An intention to apply unlawful physical force to another, or
  2. Recklessness as to whether unlawful force is applied.

In simple terms, intention or recklessness is sufficient for both offences.

Summary

  • Common assault requires the threat of immediate unlawful force.
  • Common battery requires the application of unlawful force.
  • Both offences require either intention or recklessness.
  • There is no common battery where consent is present: whether express or implied.
  • Battery can be committed indirectly, especially where D sets some form of booby trap.

Conspiracy

Introduction

In previous posts we have considered the legal mechanisms for imposing criminal liability on secondary parties (aiding and abetting) as well as participants in a joint enterprise. Those two mechanisms have something in common: The people caught within their net may not have committed any physical, substantive crime. If D persuades P to stab V, D is guilty of abetting murder even though he has not physically killed anybody. Similarly, if D takes part in a joint criminal enterprise with P, and in the course of that enterprise P shoots V in the head, D may be guilty of murder notwithstanding the fact that D did not physically kill anybody.

Conspiracy shares this common feature. It imposes criminal liability on those who form an agreement to commit a crime, whether or not that crime actually takes place.

Conspiracy, along with criminal attempts, falls under the category of inchoate offences. According to the dictionary, inchoate means:

Not yet completed or fully developed; rudimentary.

Once one has formed an agreement to embark on a criminal endeavor, one has taken the first step towards a “fully developed” criminal offence. Since the offence has not yet been committed, the whole criminal endeavor is incomplete, or inchoate. Given a choice between a simple word and an ossified old word of Latin origin, the law always seems to plump for the latter. Maybe it has something to do with lawyers’ fees…

In the next few sections we will consider the legal rules and principles surrounding conspiracy. What is an “agreement”? What are the mens rea requirements? Can one conspire to commit an impossible act? We will also take some time to reflect on the rationale underlying this area of criminal law.

The Basics

Conspiracy is an aged member of the common law, developed by the judiciary over countless centuries. Its aim was, and is, to bring within the remit of criminal law those who form an agreement to commit a crime at some future date.

The law was placed on a statutory footing by the Criminal Law Act 1977, section 1(1):

Subject to the following provisions of this Part of this Act, if a person agrees with any other person or persons that a course of conduct shall be pursued which, if the agreement is carried out in accordance with their intentions, either—

(a)will necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement, or

(b)would do so but for the existence of facts which render the commission of the offence or any of the offences impossible,

he is guilty of conspiracy to commit the offence or offences in question.

The actus reus is clear: the offence is completed as soon as an agreement is reached with any other person or persons. So, if D and P form an agreement that P will rob the Bank of England next Tuesday, the offence of conspiracy to commit robbery is made out. If the police pick-up on the agreement – perhaps via covert surveillance or a prescient tip-off – they can arrest D and P and charge them with a criminal offence.

The mens rea of the offence also looks pretty clear: intention. This is explicitly stated under section 1(2) of the Act. But what must one intend? Will it be sufficient that D simply intended to form an agreement (that is, that D deliberately agreed to commit a criminal offence)? Or does D have to intend that the substantive offence will be committed? All will be explained below, where we consider mens rea in more depth.

Section 1(1) also makes it abundantly clear that one can form a conspiracy notwithstanding the fact that the offence to which one has agreed is actually impossible to commit. In the service of clarity, let us consider an example:

Rachel and Andrea are members of a gang known as the “Los Pollos Hermanos”. They earn their superabundant salaries by producing, distributing, and selling the drug known as “crystal meth”. Unfortunately for them, a particularly astute police officer suspects them of drug dealing. He installs a bug in their secret bunker and records their conversations. One morning, Rachel and Andrea are recorded as they form an agreement to produce crystal meth using a new technique with new chemical ingredients.

The following afternoon, Rachel and Andrea take delivery of the new chemicals; but before they begin mixing them, Officer Hank Schrader forces his way into the bunker and arrests them both for conspiracy to produce an illegal drug.

Scientific analysis later reveals that the chemical ingredients would have produced nothing more than harmless sludge. There was no possibility of them ever being capable of producing an illegal drug.

In that case, both Rachel and Andrea would be guilty of conspiracy to produce an illegal drug. The fact that they could not possibly have produced the drug is irrelevant.

An Agreement

Very rarely is it the case that the police are gifted with physical evidence of a conspiracy. Most criminals are sufficiently savvy to avoid writing down their plans in the form of a simple contract. As such, an agreement can be verbal; possibly even non-verbal. The extent to which a court would consider non-verbal actions evidence of a conspiracy is unclear, because the courts have not actually defined what an agreement is.

What we do know is that an agreement must be fairly specific. In R v Taylor (2002) D agreed with several others to import a class B drug into the UK. Or so he thought. What had actually been agreed upon was a plan to import a class A drug, and D had been confused about the nature of the agreement. The court held that D was not guilty of conspiracy to import a class A drug into the UK because he had not agreed to import a class A drug. Evidence of an agreement to import a class B drug is not evidence of an agreement to import a class A drug.

On the other hand, the courts will be prepared to overlook minor or irrelevant details if a general agreement has been reached. In R v Broad (1997) D agreed with P to import a class A drug into the UK. D thought he had agreed to import heroin, while P thought they had agreed to import cocaine. Both were found guilty of conspiracy to import a class A drug. The confusion about which specific class A drug was to be imported was an irrelevance.

It is vital to note that section 2(2) of the Criminal Law Act 1977 exempts certain people from the law of conspiracy:

  1. A spouse (husband or wife)
  2. A person under the age of criminal responsibility.
  3. The intended victim of the offence.

It is legally impossible for a married couple to form a conspiracy. If Mr and Mrs white form an agreement to murder their next-door neighbour, they are guilty of nothing more than being incredibly unpleasant neighbours. Similarly, if Mr White and his nine year-old son form a conspiracy to murder Mrs White, they are guilty of nothing more than being a desperately dysfunctional family.

Wheel and Chain Conspiracies

It is not necessary for all members of the conspiracy to talk to each other. In fact, members of a conspiracy might not know what their fellow conspirators look like, where they live, what their names are, what gender they belong to, how old they are, or how deranged they are. The conspiracy might be arranged by a “middle man” who hires conspirators separately (wheel conspiracy) or the agreement might be passed on by word of mouth: D1 tells D2, D2 tells D3, D3 tells D4 and so on (chain conspiracy). Consider the diagrams below (click to enlarge):

Wheel conspiracy

Wheel conspiracy

Chain conspiracy

Chain conspiracy

Task

TaskConsider the following scenarios and decide which is an example of a wheel conspiracy, and which is an example of a chain conspiracy:

  1. Smith is a self-obsessed criminal whose main goal in life is to bolster his bank balance. Anybody who gets in his way ends up having their spines kicked through their hats. Smith decides that he wants to rob the Bank of England. The contacts list on his mobile phone consists of a variety of thugs and career criminals; so he starts to place phone calls. He hires Hogan to drive the getaway vehicle, Denning to control the staff, and Simmonds to launder the stolen cash.
  2. David has produced vast quantities of cocaine, which he wants to sell. He contacts his friend Daniel, who acts as distributor. In turn, Daniel contacts his friend Simon, who agrees to sell the drugs on the streets.

As a prosecutor, judge, or jury member, the key question is always the same:

What has to be ascertained is always the same matter: is it true to say…that the acts of the accused were done in persuance of a criminal purpose held in common between them? (R v Meyrick (1929))

Provided the answer to that question is yes, it does not matter whether the conspiracy comes as a wheel or a chain.

Mens Rea

Section 1(2) of the Act states the following:

Where liability for any offence may be incurred without knowledge on the part of the person committing it of any particular fact or circumstance necessary for the commission of the offence, a person shall nevertheless not be guilty of conspiracy to commit that offence by virtue of subsection (1) above unless he and at least one other party to the agreement intend or know that that fact or circumstance shall or will exist at the time when the conduct constituting the offence is to take place.

If we boil off the legal jargon, what we are left with is the following rule: Even if the crime agreed upon is one of recklessness or strict liability one cannot be guilty of conspiracy unless one intends to bring about that offence or knows that one will bring it about.

Consider the case of R v Saik (2006). In that case, D operated a bureau de change which – it was alleged – had been converting masses of stolen money into foreign currency: a clear example of money laundering. When he was charged with conspiracy to launder money, D accepted that he had suspected the money was stolen. We might say that he laundered the money with recklessness. On appeal, his conviction for conspiracy was quashed because he had not known that the money was stolen.

Does D Have to Intend That the Crime be Committed?

Looking at the Act, it is fairly clear that in order to be guilty of conspiracy, one must intend to form an agreement with at least one other person. But does the Act go further than that? Must D intend that the crime will be committed?

In R v Anderson (1986) D agreed with E and F to help break an inmate out of prison. For a payment of £20,000 he agreed to supply diamond wire, rope, ladders, and a safehouse. When D was charged with conspiracy, he argued that he intended to take the £20,000, supply only the diamond wire, and then run away to Spain. In effect, although he intended to agree with E and F, he did not intend to see the crime through.

The House of Lords in Anderson unanimously held that it was not necessary for D to intend to see the crime through. He had intended to form an agreement; the agreement had been formed; and the formation was enough to make him guilty of conspiracy.

The judgment in Anderson appears, at first glance, to be a victory for common sense. Something in our moral consciousness tells us that the defendant in Anderson had done something terribly wrong and deserved to be punished. But see if your opinion changes after taking-on the following task:

Task

TaskConsider the ruling in R v Anderson and apply it to the following case:

Hank is an undercover police officer who has infiltrated a violent criminal gang which has been responsible for countless murders, and he is trying to gather enough evidence to put the gangsters on trial. One morning, in the local pool hall, Hank is invited to a meeting with Don Corleone and several of his henchmen. During the course of that meeting, the gangsters discuss a “hit” on a rival gang member and agree to shoot him dead the following day. Hank does not want to blow his cover or arouse suspicion, so he too agrees to the murder, although he intends to inform the police immediately after the meeting. As Hank is leaving the pool hall, the police raid the building and arrest the conspirators. Hank is charged with conspiracy to commit murder.

Since the ruling in R v Anderson states that D must intend to form an agreement, but does not have to intend that the crime ever takes place, Hank would be guilty. He intended to form an agreement and an agreement was formed. Although he might argue that he did not intend to see the crime though to its conclusion, this would be no defence, just as it was no defence for the defendant in Anderson.

The judgment in Anderson is clearly unsustainable and ill-considered. As a result, the Court of Appeal has ignored the Anderson decision on several occasions (Edwards (1991), Ashton (1992), Harvey (1999)).

In R v Edwards (1991) D agreed to supply E with amphetamine. He was convicted of conspiracy to supply a controlled substance but appealed his conviction to the Court of Appeal. The Court stated that in order to found a conviction for conspiracy to supply amphetamine, it must be proved that D intended to supply amphetamine. Since there was evidence to suggest that D actually intended to supply ephedrine instead of amphetamine, his conviction was quashed.

The decision by the Court of Appeal in Edwards clearly contradicts the decision of the House of Lords in Anderson. And although the judgments of the higher court ordinarily bind lower courts, it is suggested that the reasoning in Edwards, Ashton, and Harvey is the more accurate statement of law. The cases are more recent than Anderson, more reasonable, and more voluminous.

Although the law is far from clear, it seems likely that one must check the following boxes in order to have the mens rea for conspiracy:

  1. An intention to form an agreement which necessarily involves the commission of a crime.
  2. An intention that the crime be committed.

Intention to Play a Role in the Criminal Offence?

Is it possible for D to be guilty of conspiracy even though D does not intend to get involved in the crime? Even though D intends to play no part in the offence? Even though D is merely a silent partner?

Consider the case where D is a Mafia boss. He sits around a table with his fellow gangsters and makes a plan to rob the local bank. He gives several gangsters different jobs to do: drive the car, shoot the guards, break into the safe etc. The Mafia boss has one job, and one job only: to take a cut of the stolen money. Do you think that the law will let him get away with it? Or will he be guilty of conspiracy despite his lack of involvement?

In R v Siracusa (1989) the Court of Appeal stated that a conspiracy can be committed in one of two ways:

  1. D intends to actively participate in the crime (drive the car, shoot the guards etc).
  2. D intends to passively participate in the crime by failing to stop the unlawful activity.

In simple terms, D does not have to get involved in the substantive crime. If he has agreed that a crime should be committed, he is guilty of conspiracy. Full-stop.

Common Law Conspiracy

The Criminal Law Act 1977 explicitly retains two of the old forms of common law conspiracy:

  1. Conspiracy to defraud.
  2. Conspiracy to corrupt public morals.

The key case on conspiracy to defraud is Scott v MPC (1975) where Viscount Dilhorne described the offence as being:

An agreement by dishonesty to deprive a person of something to which is his or to which he is, or would be, entitled, and an agreement by two or more by dishonesty to injure some proprietary right of his.

Lord Diplock added that:

The purpose of the conspirators must be to cause the victim economic loss.

Let’s illuminate these statements of law by applying them to a case. In R v Cooke (1986) D was a British Rail steward who, along with some colleagues, took his own food and drink on-board a British Rail train and sold them as if they belonged to British Rail. D and his colleagues had agreed to deprive British Rail of the right to profit from food and drink sold on-board their trains; their purpose was to cause British Rail economic loss; therefore D was guilty of conspiracy to defraud.

The key case on conspiracy to corrupt public morals is Knuller (Publishing, Printing and Promotions) Ltd v DPP (1973). In that case, Lord Simon said that a conspiracy to corrupt public morals involves an agreement to carry out a course of conduct “which a jury might find to be destructive of the very fabric of society”.

Lord Simon’s intention was to limit the scope of conspiracy to corrupt public morals to those acts which are egregiously terrible, but the category is still incredibly broad. One of the principles of the rule of law is that the law should be relatively clear and unambiguous; it should be possible for ordinary citizens to discover what they can and cannot do under the law. And yet here we have a criminal offence whose scope depends entirely on the moral ideas of a jury of peers.

In Shaw v DPP (1962) D was the publisher of a magazine which detailed the names and addresses of prostitutes, along with descriptions of the sexual acts they were willing to perform. The House of Lords upheld his conviction for conspiracy to corrupt public morals.

Summary

  • Conspiracy is an inchoate offence.
  • It requires an agreement between two or more people.
  • It is not necessary for all conspirators to meet. The conspiracy might take the form of a wheel or a chain.
  • D must have an intention to form an agreement, and an intention that the offence be committed.
  • The agreement must be relatively specific.
  • D does not have to intend to play a role in the commission of the offence. He can be a silent partner.
  • Two categories of common law conspiracy prevail: conspiracy to defraud and conspiracy to corrupt public morals.

Joint Enterprise

Introduction

In the previous article on secondary parties we looked at how the law deals with people who provide help, encouragement and assistance to third parties committing a crime. We saw that a person (A) who provides a knife to another person (D) – knowing that D is going to use the knife to murder someone – can be tried, indicted, and punished as a murderer. Person A will be brought before a jury of his peers and charged with murder. If A is found guilty, he will be sent to prison with a mandatory life sentence.

This article seeks to explain how the law handles criminal offences carried out by a group, or gang, of people. Consider the following example:

Walt, Jessie, Michael, and Gus are members of a gang. They have all agreed to locate their archenemy, Todd, and kick him to death.

They find Todd outside his house reading Tom Bingham’s excellent book The Rule of Law. The gang runs over to Todd and Walt drags him to the pavement. Walt begins to stomp on Todd’s head while Jessie, Michael and Gus repeatedly kick him in the stomach and legs.

Todd dies as a result of the violent attack, and the gang members are apprehended by the police. It is impossible to prove which kick was the “fatal blow”. No scientific or forensic methods can possibly identify which member of the gang was responsible for his death.

The problem with the above scenario is that nobody can prove which gang member caused the death of Todd. The ordinary rules of causation make it very difficult, if not impossible, to identify the murderer and prove beyond reasonable doubt that he unlawfully killed Todd.

The law’s answer to this problem lies in the doctrine of joint enterprise. When two or more people embark on a joint criminal enterprise, all members of that gang can be punished for crimes committed by just one gang member, provided they foresaw that the crime was likely to happen. So, in the above scenario, the law would cast the net of murder around Walt, Jessie, Michael, and Gus. They would all be held criminally responsible for Todd’s death.

The Basics

In the case of Stewart and Schofield, Hobhouse LJ highlighted the key difference between secondary parties and joint enterprise. He said that whereas an aider and abettor is not necessarily involved in the commission of the principal offence, a joint enterprise entails “taking part in the execution of an offence“. The key difference is that in order to be found guilty under the joint enterprise rules, one has to play some form of role in the execution of a criminal offence. Merely providing a murder weapon or shouting encouragement from a safe vantage point will not be sufficient.

J. Martin offers a more concise formulation of this critical difference. She defines joint enterprise as being “Where two or more people commit an offence together“.

The key word in Martin’s definition is “an”. If four people come together to commit burglary, and in the course of that burglary one person shoots the homeowner, all four burglars might be guilty of murder under the joint enterprise umbrella. This is true despite the fact that the other three burglars might have had absolutely nothing to do with the murder. Indeed, they might have watched in horror as their comrade whipped out a pistol and fired the fateful bullet into the homeowner’s chest. It is sufficient, in terms of actus reus, that all four burglars were committing an offence together (burglary) and there is no need to prove that they were all committing murder together.

Mens Rea Requirements

Joint enterprise comes with three key mens rea requirements:

  1. D1 must have foresight that D2 might commit a certain crime.
  2. D1 must foresee that D2 will have the relevant mens rea for that crime.
  3. D2 must commit the crime during the course of the joint enterprise.

These requirements can be found in the case of R v English (1997) where the court said:

If two parties embark on a joint enterprise and one party foresees that in the course of that enterprise the other party may commit, with the requisite mens rea, and act constituting another crime, the former is liable for that crime if committed by the latter in the course of the enterprise.

In R v English D and E took part in a joint enterprise to attack a police officer (V) with wooden posts. During the course of the violent conflict, E produced a knife and stabbed V to death. D was convicted of murder under the joint enterprise doctrine and appealed his case all the way up to the House of Lords.

On appeal, the House of Lords quashed his conviction. D did not foresee that E would use a knife with intent to kill during the course of the joint enterprise. Lord Hutton stated that if the weapon used by E was different to, but just as dangerous as, the weapon which D foresaw he might use, then D would be guilty. If, however, the weapon used by E was far more dangerous and had a far greater propensity to kill, then D would be not guilty. In English, a knife was held to be far more dangerous than a wooden post.

The basis of the House of Lords’ judgment in English was that if D and E embark on a joint enterprise, and D knows that E is carrying a knife, or a gun, or a spear, or anything of that sort, then there is evidence that D foresaw that E would use that weapon to kill.

The principle in English is backed-up by Lord Bingham’s judgment in Rahman and Others (2008). He accepted that in order to be found guilty under the joint enterprise doctrine, it is necessary to prove that D foresaw that E might commit a certain offence. Bingham suggested that if D knew that E possessed a dangerous weapon, then there is very strong evidence that D foresaw that E might commit a serious crime such as murder.

Let’s boil the judgments in English and Rahman down to a simple statement of law, using a case study to aid understanding:

Tom, Frank and James are part of a gang. They spend every Wednesday night driving around the local area looking for houses to burgle. One Wednesday night, as they are getting ready to head out into the streets, Frank and James watch Tom sliding a machete into a secret pouch inside his jacket. Not wanting to cause a fuss, they carry on getting ready for the long night ahead.

A couple of hours later, Tom, Frank and James spot an empty house and agree to force their way inside and steal the television. The door is unlocked, and they creep into the bedroom hoping to find some valuable jewelry. The sound of the bedroom door opening alerts Hank, who had been slumbering in his bed. Hank – a trained boxer – is handy with his fists and squares-up to Tom. Tom does not like it when people stand-up to him, so he grasps the machete from inside his jacket and plunges it into Hank’s throat.

Hank dies as a result of the wound, and Tom, Frank, and James are arrested by the police.

Although Frank and James did not perpetrate Hank’s murder, it is likely that they will be found guilty of murder under the rules laid down in R v English and Rahman and Others. They knew that Tom possessed a machete, therefore they foresaw a chance that he might use it to kill someone with intent.

An interesting corollary of these joint enterprise rules is that the crime of murder does not necessarily require an intention to kill. D can be convicted of murder under the joint enterprise rules merely because D foresees that somebody else might kill. This is a very low level of mens rea for such a serious crime. Murder comes with a requirement of intention – the most morally blameworthy form of mens rea – because of the fact that it carries a mandatory life sentence, and yet joint enterprise casts its net around people who merely foresee that a murder might be committed by somebody else.

Those who support the law of joint enterprise argue that this is a necessary evil. The law faces a choice: either it allows the perpetrators of gang violence to escape punishment, or it casts a life sentence on all of them. But the law faces problems with the burden of proof every single day. Consider, for example, how difficult it is to secure a conviction for rape – a crime which commonly occurs in private. Perhaps the same argument could be made to justify lowering the burden of proof in rape trials from “beyond reasonable doubt” to “more likely than not”. By doing so, it would be much easier to lock away genuinely evil rapists, but the law would also end-up catching thousands of innocent men in its net.

Going Beyond what was Foreseen

Since D can only be convicted under the joint enterprise rules if D foresees that E might commit a certain crime, it follows that D cannot be convicted if E carries out a crime which was not foreseen.

In Rafferty (2007) D, E, and F were assaulting a man on a beach with the intention of robbing him. During the course of the attack, D left to withdraw some cash from a cash machine. While D was busy at the ATM, E and F dragged the victim into the sea and drowned him.

The court held that D was not guilty of murder under the joint enterprise rules because he had taken part in a gang attack to assault and rob. He did not foresee that E and F would commit murder. Indeed, murder was of a radically different nature to the crimes he did foresee.

The legal principle demonstrated in Rafferty was enunciated by Toulson LJ in Mendez and Thompson (2010):

It would not be just that D should be found guilty of the murder of V by E, if E’s act was of a different kind from, and much more dangerous than, the sort of acts which D intended or foresaw as part of the joint enterprise.

Withdrawal from Participation

It is possible for any member of the joint enterprise to withdraw from it and avoid liability for any crimes committed after his withdrawal.

In Becerra and Cooper (1975) the Court of Appeal stated that in order to effectively withdraw from a joint enterprise D must serve unequivocal notice that he is withdrawing.

In that case, D and E were engaged in a joint enterprise to commit burglary. During the course of the burglary the upstairs neighbour overheard the commotion and came to investigate. D panicked at this unexpected intrusion and shouted “Come on, let’s go!” before climbing out of the window. E did not heed D’s advice, opting instead to murder the neighbour. The Court of Appeal stated that something vastly different and more effective was required in order to effectively withdraw. D’s intention in shouting “Come on, let’s go!” was merely to avoid getting caught by the neighbour and did not serve unequivocal notice that he was abandoning the joint enterprise.

Similarly, in Baker (1994) the words “I’m not doing it” were not sufficiently unequivocal to effectively withdraw from a joint enterprise. D and E had taken V to some waste ground in order to stab him. D stabbed V three times before handing the knife to E and saying “I’m not doing it”. E continued to stab V dozens of times until he died.

The Court of Appeal stated that D had not served unequivocal notice that he intended to withdraw from the joint enterprise. To the contrary, “I’m not doing it” was the equivalent of saying “I myself will not strike any more blows”.

Is Reform Needed?

The criminal law is based on certain presuppositions:

  1. No crime without mens rea.
  2. One can only be punished for the crimes one actually commits.
  3. Sentences will vary depending on the severity of one’s crime.

Joint enterprise tends to bulldoze its way through these foundations in pursuit of violent gangs.

On the first point – no crime without mens rea – it might be argued that one must have foresight that a particular crime might be committed. This is a very mild form of mens rea relative to intention, but mens rea nonetheless. However, the Committee for the Reform of Joint Enterprise has stated that:

 In the majority of joint enterprise cases, prosecutors and the courts focus on D2’s knowledge that the principal has a weapon which turns out to be the murder weapon, and asks the jury to decide whether D2“must have foreseen” that it would be used. Thus, although the standard of D2’s fault is in theory a subjective one, the practical reality of jury trial is that it has become objective. D2 can be convicted of murder, therefore, if the jury think, without more, that he should have known that D1 might kill or seriously injure the victim.

If their submission is true, then joint enterprise does not require proof of mens rea. It is sufficient that D should have foreseen the possibility of E committing murder, but it is not necessary that he actually did foresee it (see the post on recklessness for an in-depth explanation of subjective vs objective mens rea). It is nothing less than a major shock to discover that a person can be sentenced to life imprisonment for a crime as serious as murder even though he had no mens rea whatsoever. We might call it strict liability murder, even though strict liability is generally reserved for incredibly minor offences such as speeding.

The second point – that one may only be punished for the crimes one actually commits – is so obviously trampled by the law of joint enterprise that it requires very little explanation. In Becerra and Cooper (above) D did not murder the victim. The life of the victim was obviously taken by E.

It might be argued that it is morally right that D should have been found guilty in Becerra and Cooper because he had a chance to prevent the murder and failed to do so. But UK law does not generally punish omissions. If you walk past a drowning child and decide not to help, you will not find yourself before the Crown Court on a charge of murder.

Finally, joint enterprise imposes the same sentence on every person who participates in a crime. The case of R v Mitchell (2008) provides a stark example of how the doctrine can be abused:

In Mitchell D and her friends were involved in an aggressive fight in a taxi rank. The fight was so aggressive that the jury found that D must have foreseen a possibility that serious harm, or even death, could result. However, the fight came to an end and D’s friends left the scene. D lingered in the car park looking for her shoes and considered the fight over and done with.

Unfortunately for D, her friends had only left the scene temporarily in order to collect some weapons from a nearby house. When they returned, they murdered the victim while D was still on the scene.

The jury in Mitchell decided that there was one long joint enterprise, starting with the original fight in the taxi rank and ending with the victim’s death. Since D had not given unequivocal notice to her friends that she intended to leave the joint enterprise, she was still considered to be a part of it when they returned to the scene with weapons. And since she had foreseen that death or serious harm might result during the original fight in the taxi rank, she had the required mens rea for murder. She was found guilty of murder.

Few people would argue that D did nothing wrong. Getting involved in a violent assault during a night out is a very serious crime and would usually be dealt with as an offence of actual bodily harm or grievous bodily harm. Both very serious. Both carrying significant sentences to reflect their severity. But by the time her friends came back and murdered the victim, she had ceased her involvement. She did not intend to kill anybody. In essence, she was held responsible for the murderous actions of her friends.

In conclusion, one ought to be very wary of trampling legal safeguards and principles in pursuit of violent criminals. No doubt the law of joint enterprise can help scoop-up wrongdoers and secure justice, but it must also be recognised that it simultaneously scoops-up the wrong people. Is that a price worth paying?

Summary

  • A joint enterprise involves two or more people embarking on a joint criminal venture.
  • All members of that enterprise will be guilty of offences committed during the joint enterprise provided they foresaw a possibility that such a crime might occur.
  • Knowledge that another member of the joint enterprise possesses a weapon is considered strong evidence that D foresaw the use of that weapon.
  • If one member of the joint enterprise does something which was completely unforeseen by D, or radically different from what was foreseen, then D is not liable.
  • It is possible to withdraw from a joint enterprise, but withdrawal requires unequivocal notice.

Secondary Parties

Introduction

Before moving onto this post, it is strongly recommended that you read the article on causation. Having done so, you will understand that when a third party voluntarily intervenes somewhere along the chain of causation, the law imposes a novus actus interveniens and ceases to regard the original actor as criminally responsible for the eventual outcome. Consider the following example:

In R v Kennedy (Simon) [2007] the House of Lords (now the Supreme Court) was faced with the following case: The defendant had been convicted by a lower court of unlawful act manslaughter after he prepared an injection of heroin for his friend. Having prepared the injection, the victim administered it to himself and later died by choking on his own vomit. The House of Lords quashed the defendant’s conviction because his victim had made a free and informed decision to administer the heroin. The law assumes the existence of free will and this was sufficient to absolve the defendant of blame. The key principle to bear in mind is that when a third party voluntarily intervenes – as did the victim in the present case – the chain of causation is broken.

This leaves the law with a problem. How does the law deal with the man who provides a vicious murderer with a knife, knowing that he is going to use it to slit the throat of an enemy? How does the law deal with the woman who persuades her friend to deliver a letter bomb to her enemy? How does it deal with the man who deliberately slips alcohol into his friend’s soft drink and causes him to drink drive?

The answer lies in section 8 of the Accessories and Abettors Act 1861, which states:

Whosoever shall aid, abet, counsel or procure any offence…shall be liable to be tried, indicted and punished as a principal offender.

This legal provision ensures that the man who provides the knife, and the woman who persuades her friend to deliver a letter bomb to her enemy, are tried and punished as murderers. As Lord Bingham stated in R v Kennedy (Simon):

The doctrine of secondary liability was developed precisely because an informed voluntary choice was ordinarily regarded as a novus actus interveniens breaking the chain of causation.

In the following sections, we will be taking a look at the rules surrounding this area of the law.

The Basics

The title of this post is secondary parties. This is because the liability of the person who aids, abets, counsels or procures depends upon the crime (be it murder, assault, burglary, or any other offence) being committed by somebody else. For example, in the scenario where A sells a knife to B, knowing that B is going to use it to murder C, A is not guilty of aiding and abetting murder unless B actually goes ahead and murders C. If B collects the knife and then gets cold feet, A cannot be guilty of aiding and abetting murder.

Another way of describing the above principle is that aiding, abetting, counseling and procuring is a derivative offence. The criminal liability of the man who provides the knife to B derives from B’s murder. As we will see in a later post, this differs from the concept of joint enterprise, where several people are held jointly responsible for a crime because they acted in concert, or as a gang.

Key Terms

In the cases on secondary parties, a couple of terms routinely appear:

Principal – The principal offender is the person who physically carries out the crime. So, in the example where A provides B with a knife, and B uses that knife to kill C; B is the principal offender.

Accessory – The accessory is the person who aids, abets, counsels or procures another person to commit an offence. So, in the above example, A is the accessory. The criminal liability of the accessory always depends upon the criminal act of the principal.

Of course, it is also necessary to consider what the words aid, abet, counsel and procure actually mean. Do they have some kind of special legal meaning?

In Attorney General’s Reference (no. 1 of 1975) the court stated that these words should be given their ordinary meaning. D. Ormerod, who authors one of the most authoritative textbooks on criminal law, provides the following definitions:

Aiding – To give help, support, or assistance to. This would cover things like providing a weapon, driving A to B’s house so he can murder B, acting as a lookout, and helping to plan an offence.

Abetting – To incite, instigate or encourage. This would cover things like shouting words of encouragement during a fight, and persuading your friend to drink drive.

Counseling – Ormerod states that counseling is the same thing as abetting. Other authors, such as J. Martin, assert that whereas abetting requires encouragement during a crime, counseling requires encouragement before the crime. Both abetting and counseling tend to be treated by the courts as synonymous.

Procuring – This word was defined by the court in Attorney General’s Reference (no. 1 of 1975). In that case, Widgery CJ said the following:

To procure means to produce by endeavour. You procure a thing by setting out to see that it happens and taking the appropriate steps to produce that happening. We think that there are plenty of instances in which a person may be said to procure the commission of a crime by another even though there is no sort of conspiracy between the two, even though there is no attempt at agreement or discussion as to the form which the offence should take.

In the above case D spiked P’s drink, knowing that he would drive home whilst under the influence of alcohol. He had set out to see that P drove home whilst drunk, and took the appropriate steps to produce that happening. The key difference between procuring and the other three terms is that in order to procure one must be the factual and legal cause of the offence. In order to aid, abet, or counsel, the prosecution does not need to prove that the secondary party caused the offence – merely that they helped or persuaded. It could very easily be the case that selling a knife to B was not the cause of B stabbing C. B may have killed him via other methods even without your assistance.

TaskTask

Consider the following scenarios and choose which label best fits the crime: aiding, abetting, counseling or procuring:

  1. Roger, who works in a D.I.Y. store is approached by Ahmed. Ahmed says “I’m sick of my neighbour. He keeps getting his circular saw out at five o’clock in the morning and waking my family. I want to stab him. That’ll shut him up for good. Do you have any ten inch blades?” Roger recognises Ahmed as a convicted murderer who was released from prison several weeks ago. He sells a large knife to Ahmed, and Ahmed murders his neighbour the following day.
  2. Liam is enjoying a friendly soft-drink with his sister Sarah. Liam is of the opinion that Sarah is a terrible driver and he decides to run an experiment to see if her driving improves when she is on drugs. When Sarah leaves to visit the bathroom, he slips some ketamine into her lemonade. Later on that evening, Sarah drives home and is pulled over by the police for dangerous driving. She is later convicted of driving whilst under the influence of drugs.
  3. Holly has recently fallen out with her best friend Chris. She decides to telephone her friend Selina and persuade her to beat-up Chris. Selina is very easily persuaded. The following day, she drives to Chris’ house, knocks on his door, and kicks him in the face when he answers. Selina is arrested by the police and convicted of inflicting grievous bodily harm with intent to wound.

Before we move on to consider some concrete examples of secondary liability, it is necessary to understand the timing element of the offence.

In R v King (1817) P broke into a warehouse and stole some butter. He deposited the stolen goods in the street and D turned up to help him to carry the butter away. The court decided that D was not guilty of aiding and abetting P because his assistance was offered after the crime had taken place. One can only be guilty as a secondary party for acts done before or at the time of the offence.

Aiding

In National Coal Board v Gamble (1959) P filled his lorry with coal at the colliery. He then proceeded to drive the lorry onto the weighing machine, where he was informed that he had overloaded the vehicle. It was too heavy to be legally driven on public highways. Despite this knowledge, the colliery (D) provided him with a ticket permitting him to leave the premises and proceed on his journey. P knew that his lorry was too heavy but decided to carry on with his journey, using the ticket to raise the exit barriers.

The court stated that D was guilty of aiding P to commit the offence of driving an overloaded vehicle on a public highway. By providing P with a ticket they had assisted him in the commission of the crime.

In R v Bryce (2004) D drove P and a gun to a caravan where V was living. D knew that P was likely to murder V but he still decided to act as his driver. The court upheld D’s conviction for murder because he had intentionally driven P to the caravan knowing that he was helping him to commit murder.

Abetting and Counseling

In Tuck v Robson (1970) D – the owner of a pub – allowed his customers to continue drinking on his premises after the legally permitted hours. He made a deliberate decision not to enforce his right to eject them. As such, the court upheld his conviction for aiding and abetting the offence of drinking after hours. His failure to eject the law breaking customers was a form of encouragement for them to continue drinking.

In R v Clarkson (1971) two soldiers walked into a room where another soldier, P, was raping a woman. They stayed to watch but did not say or do anything. The court said that this was not enough to constitute abetting rape because the act of standing in silence did not actually encourage P to rape. It is likely that if they had egged P on, pumped their fists or done some other action indicating encouragement, they would have been found guilty.

Another case highlighting the same principle as R v Clarkson is R v Coney (1882). In this case, the defendants were present at an illegal bare-knuckle boxing match. They sat and watched the fight in silence in the same way as the defendants in Clarkson watched the rape in silence. The court stated that there were no acts of actual encouragement and so they were not guilty as secondary parties.

The important point to take away from this series of cases is that in order to be guilty of aiding and abetting, the defendant must actually do something to aid or abet. This is a question of fact which is ordinarily left to a jury and does not necessarily mean that the defendant must have said something. Any act – even something as basic as being a murderer’s lookout – could be sufficient to actually aid or abet.

A further important point was made by the court in Attorney General’s Reference (no. 1 of 1975). There, the court stated that abetting and counseling requires some form of “meeting of minds“. In other words, if John persuades Sarah to murder Laura, but Sarah actually murders Nicola, John is not guilty as an accessory to murder. John and Sarah had a meeting of minds to murder Laura, not Nicola.

To state it in simple terms, P must be aware that he has the approval of D to perform the crime. In the above example, Sarah does not believe that she has John’s approval to murder Nicola, so John is not guilty of abetting or counseling murder.

Procuring

The key case on procuring is Attorney General’s Reference (no. 1 of 1975) which is discussed above.

Mens Rea of Secondary Parties

We have already seen from the above cases that the actus reus of accessorial liability can be something as simple as keeping watch whilst your associate commits murder. Any act which is sufficient to actually assist, encourage, or procure is enough. Note the huge difference between the principal and the accessory: in the case of murder, the principal must unlawfully kill a human being, while the accessory can be guilty of the same offence merely by driving P to the scene of the crime. Although the actus reus of both parties is wholly different in nature, they are both treated as murderers and given a mandatory life sentence. Do you think this is fair?

The actus reus element is relatively easy to fulfill, but there is also a mens rea requirement which is fairly complex and loaded with problems.

There are two elements to the mens rea for secondary parties:

  1. Intention or belief that the act will encourage or assist or – in the case of procuring – bring the offence about.
  2. Knowledge of the type of crime that P is likely to commit. Including the type of mens rea that P is likely to have.

Let’s take a look at the two elements separately.

Intention or belief that the act will encourage, assist, or bring the offence about

It is very important to remember that the defendant must intend or believe that his act will encourage, assist, or bring the offence about. This element of the mens rea does not require the secondary party to intend or desire the crime to be committed.

In Lynch v DPP for Northern Ireland (1975) D drove P to a place where he intended to commit murder. D was horrified at the prospect of V’s murder and did not desire it to happen. Nevertheless, he intended to assist P in the commission of a murder. The question whether or not the secondary party desires P to commit a certain crime is irrelevant. What matters is that the secondary party intends or believes that what he is doing will encourage or assist. So, in this case, although D was horrified by what P was going to do, he nevertheless knew that he was likely to do it and knew that by driving him to the scene he was assisting him.

Similarly, in Cook v Stockwell the defendant sold beer to a number of cottages despite the fact the he knew they were illegally reselling it without a licence. The secondary party did not desire the cottages to resell the beer illegally, but he nevertheless knew what they were doing and knew that by selling them the beer he was assisting them.

The principle demonstrated in the above cases is helpfully stated by Devlin J in R v J F Transport Ltd:

If you sell a gun to someone, you may be indifferent whether the person dies, but you can still be guilty of aiding and abetting.

Knowledge of the type of crime that P is likely to commit

Re-read the subheading above and think about what it might mean. If James sells Liam a knife, thinking that he is likely to use it to commit criminal damage (perhaps by scratching somebody’s car), but Liam in fact uses it to murder somebody, do you think James would be guilty of murder as a secondary party?

The key words here are type and likely. The defendant does not have to be certain that P will commit a certain crime, and he only needs to know the type of crime that is likely to be committed: he does not have to know all the details. Let’s look at a few cases to back-up these statements.

In R v Bainbridge (1959) the defendant purchased some oxygen cutting equipment for P, who used it to break into a bank. On appeal, D argued that he could not be guilty of aiding and abetting P to commit the crime because he did not know which bank he would break into or at what time. In other words, although he knew what the oxygen cutting equipment was going to be used for, he did not know the specific details of the crime.

The court decided that the defendant in Bainbridge was guilty as a secondary party because although he did not foresee the specific details of the crime, he nevertheless foresaw the type of crime that he was aiding.

Think about why the court made this decision. What would have happened if the court had set a precedent that secondary parties must know all the details of the crime in advance? Would it be easy to secure convictions?

In R v Webster (2006) D was driving a car with P as his passenger. D got tired and allowed P to take over driving duty despite the fact that he knew P to be drunk. P was later convicted of causing death by dangerous driving.

The court in Webster stated that it was sufficient that D foresaw that P was likely to drive dangerously. It is not necessary for the prosecution to prove that D foresees dangerous driving as a certainty. Of course, very little in life is certain and if the court had stated that certainty was the requirement instead of likelihood, the law of aiding and abetting would have been emptied of all content. It would have made it nearly impossible to convict anybody under the Accessories and Abettors Act.

Perhaps the most difficult part of the mens rea for the prosecution to prove is the requirement that D foresaw the type of mens rea that P would have during the commission of the crime. For example, where D provides P with a knife, he must know that P is likely to stab somebody with intention to kill or cause grievous bodily harm.

In R v Dunbar (1988) D persuaded P to inflict light violence on V during the course of a burglary. In fact, P went on to murder V. The court stated that D was not guilty as an accessory because he had not foreseen the mens rea of P. He had genuinely thought that P would attack V with intention to inflict light violence, not to kill.

Changing the Substance of a Specific Plan

What happens when two people come together to form a very specific plan, but one of them goes off plan and does something completely unexpected?

In R v Reardon (1999) the court stated that:

If B aids, abets, counsels or procures A to commit a crime against a particular person…B is not liable if A intentionally commits an offence of the same type against some other person.

So if Jessie approaches Walt and asks him to provide a gun so that he can kill Gus, Walt is not guilty as an accessory to murder if Jessie uses the gun to murder Michael. If a specific plan is formed, and the principal changes that plan in substance, then the secondary party is not guilty of an offence.

It is important to note that the plan must be changed by the principle in substance. That would include things like murdering a different person, but would not include murdering the correct person at a different time or in a different place.

Summary

  • Section 8 of the Accessories and Abettors Act 1861 makes it an offence to aid, abet, counsel or procure a crime.
  • The words in section 8 are to be given their ordinary meanings.
  • The actus reus of the offence is to do an act which actually aids, abets, counsels, or procures.
  • The mens rea requires an intention to aid, abet, counsel or procure but does not require the defendant to desire the commission of the crime.
  • The mens rea requires knowledge of the type of crime that P is likely to commit but does not require knowledge of specific details.
  • The mens rea requires foresight of the type of mens rea that P is likely to have when he commits the crime.
  • If P and D form a specific plan, and P changes the substance of the plan, then D is not guilty as an accessory.

Causation

Introduction

Before reading this post on causation, it is strongly suggested that you read the earlier posts on actus reus and mens rea. Once you have done so, you will have a solid understanding of the fundamental elements of a criminal offence and will be ready to consider the issue of causation.

If you were a prosecuting barrister in a murder trial, your task list might look something like this:

  1. Prove beyond reasonable doubt that the defendant intended to cause death or grievous bodily harm.
  2. Prove beyond reasonable doubt that the defendant is responsible for the death of the victim.

Point one covers the mens rea of murder and point two covers the actus reus.

As we have seen in the post on intention, task one will require the prosecuting barrister to prove either that the defendant desired or aimed for the death or serious harm of the victim, or that death or serious bodily harm was a virtually certain consequence of his actions.

Once that has been established, it will be necessary to prove that the defendant caused the death of the victim. In a lot of cases, this will be a relatively straightforward process: consider, for example, the case where Terry points a gun at Jimmy’s head and pulls the trigger. As Terry’s defence council you would have a difficult task in trying to persuade a jury that he didn’t cause Jimmy’s death.

But the issue of causation (defined as “the action of causing or producing”) is not always so straightforward.

TaskTask

John and Lee are enjoying a boozy night out in Liverpool city center on a Friday night. At about 2am, they have a disagreement about who was the better moral philosopher: Bentham or Rawls. Unable to simply agree to disagree, John and Lee have a fight. John is a professional martial artist, trained to black-belt level in Ju Jitsu. He performs a special punch to Lee’s kidney area, causing severe internal bleeding and jeopardising Lee’s life.

A passer-by calls an ambulance to take Lee to the hospital for urgent medical attention. When he arrives at the hospital, Lee is treated by Dr Ahmed who has not slept in three consecutive nights. Dr Ahmed performs emergency treatment at a level well below what is to be expected of a competent doctor and fails to save Lee’s life. Lee expires at 6am.

John is charged with murder. During his trial, his defence council argues that Lee’s death was caused by Dr Ahmed’s appalling medical treatment rather than John’s punch. The barrister calls a consultant doctor to the witness stand to provide evidence that Lee’s life could have been saved but for Dr Ahmed’s poor medical treatment.

Who has caused Lee’s death? Is it John or Dr Ahmed?

As the above task illustrates, the issue of causation is not always an easy one for a jury to resolve. In many cases, there are several competing or contributory causes which lead to a victim’s death and it is necessary for the court to somehow apportion blame. There might be a chain of events leading up to the victim’s death (known as the chain of causation) and something might happen along that chain to absolve the original actor of blame (known as a novus actus interveniens – Latin for “a new act intervenes”).

The aim of this post is to explain how the courts go about that duty. We will see that there are two stages involved in the inquiry:

  1. But for the defendant’s actions, would the death have occurred (factual causation)?
  2. Was the defendant’s actions more than a minimal cause of the victim’s death (legal causation)?

Factual causation

This element of the causation test is relatively simple and easy to apply. It is necessary to ask yourself the following question:

But for the defendant’s actions, would the victim have died?

To simplify this post, we are discussing causation in the context of murder, but it applies equally to any results crime. For example, in a case of grievous bodily harm, you would ask:

But for the defendant’s actions, would the victim have suffered grievous bodily harm?

Let’s consider an example of the but for test in action:

James, Lee, and Scott gang up on Tom in a dark alleyway. They instruct Tom to empty his pockets and hand over his cash. When Tom refuses, Scott stabs him in the leg and Tom dies of blood loss.

We can see that if Scott had not stabbed Tom, then he would not have died. Scott is therefore the factual cause of Tom’s death.

There is, however, a problem with this test:

Consider the case where Sarah invites Kayleigh to her house for a party. On the way to Sarah’s house, Kayleigh is set-upon by Trevor and stabbed to death.

We could easily say that but for Sarah inviting Kayleigh to her house for a party, Kayleigh would not have been walking the streets at that time; therefore Trevor would not have been able to stab Kayleigh; therefore Sarah is a factual cause of Kayleigh’s death.

Clearly then, we cannot call Sarah a criminal simply on the basis that she was a factual cause of Kayleigh’s death. We need something more.

Two cases illustrate the need for factual causation to be established:

In R v Pagett (1983) the defandant took his victim – who was heavily pregnant with his child – from her home by force. The police gave chase and eventually cornered him. The defendant held the victim in front of him as a human shield and began firing a weapon at the police. The police immediately fired back in self-defence and accidentally killed the victim in the crossfire.

The defendant in Pagett was found guilty of manslaughter: but for his actions, the victim would not have been killed.

Conversely, in the case of R v White (1910) the defendant put cyanide in his mother’s milk with the intention of killing her. His mother drank the milk and died during the night.

When the defendant was charged with murder, the court discovered that his mother had died of a heart attack via natural causes, and not because of the poisoned milk. Since her death would have occurred despite the poisoned milk, the defendant could not be said to have caused her death.

Legal causation

The leading case on legal causation is R v Cheshire (1991). In this case, the defendant (D) had an argument with the victim (V) in a chip shop. During the course of the argument, D shot V in the thigh and stomach. V was rushed to the hospital where a doctor inserted a tracheotomy tube to help V breathe, but he did not install the tube properly. Several weeks later, V’s wounds were healing and were no longer threatening his life. Nevertheless, V was having difficulty breathing due to excessive scarring around the site of the tracheotomy tube and he eventually died as a result.

When the case reached the Court of Appeal, D argued that his original act (shooting the victim) was not the cause of death. He relied on expert testimony from a consultant doctor who argued that V died as a result of negligent medical treatment rather than gunshot wounds. Indeed, the gunshot wounds were healing nicely and were no longer a threat to V’s life.

The Court of Appeal, upholding D’s conviction, provided the following direction on causation:

Judges should ask juries the following question: “Has the prosecution proved that the acts of the accused caused the death of the deceased. The accused’s acts need not be the sole, or even the main cause. It is sufficient that his acts contributed significantly to that result.

The Court of Appeal said that it is not the jury’s responsibility to weigh-up competing causes of the death; so, in Cheshire, it was not necessary for the jury to balance the defendant’s gunshot wounds against the doctor’s medical treatment. Even though the main cause of the death was the doctor’s negligent medical treatment, it was still possible that the defendant’s shooting was a legal cause of death. All the jury had to do was ask two questions:

  1. But for the defendant shooting the victim, would he have died?
  2. Was the shooting a substantial cause of the victim’s death?

If both questions could be answered with a “yes”, then the defendant was the cause of the death. If the second question was a “no” then there was a novus actus interveniens, breaking the chain of causation.

In Cheshire the court decided that the defendant was responsible for the victim’s death. In order for negligent medical treatment to act as a novus actus interveniens and break the chain of causation, the following test had to be passed:

Was the treatment so independent of the defendant’s act and so potent in causing death that the jury regards the contribution made by the defendant’s act as insignificant?

What does the law mean by a “substantial cause”?

In the case of R v Cato (1976) the Court of Appeal stated that “substantial” means “not de minimis“.

De minimis is a latin term meaning “of minimum importance“. In modern terms, if an act is de minimis it is an almost irrelevant part of the history leading up to the death.

For example, if Simon punches Graham in the face, causing severe bruising, and Simon’s car is struck by a terrorist’s bomb on the way to the hospital, it might be said that Simon’s act was almost irrelevant. The true cause of Graham’s death is the bomb attack, and against that background the fact that Graham was once punched by Simon seems completely irrelevant.

The later case of R v Kimsey (1996) states the same principle in simpler language. In that case, the defendant had been motor racing with another person and accidentally slammed into the back of his victim. This caused her to swerve into another lane and crash her car, causing her death.

During his trial, the defendant tried to argue that the true cause of his victim’s death was her loss of control over the vehicle. The court rejected this argument, stating that it was enough that there was “more than a slight or trifling link” between him ramming her car and her death.

In summary then, a defendant can be considered the cause of a victim’s death if the death would not have occurred but for his actions, and his actions were more than a slight or trifling cause of the death. The fact that some other event occurs further down the chain of causation is not enough to absolve him of blame unless it is such a significant event that the defendant’s actions become an almost insignificant part of history.

The eggshell skull rule

TaskTask

Read the following scenario and ask yourself whether or not Michael is the cause of Peter’s death:

Michael is walking down the street and he spots his sworn enemy Peter a few yards ahead of him. Michael creeps up behind Peter and punches him in the back of the head, intending to knock him out. Peter suffers from a medical condition which means he has a very thin skull which is easily broken, and Michael is unaware of this. Peter falls to the floor with a shattered skull and dies on the spot.

There are two ways of looking at this scenario. Either we can blame Michael for all the consequences flowing from his actions, however unforeseen they might be; or we can claim that the cause of Peter’s death was his medical condition.

The court was faced with a similar problem in the case of R v Blaue (1975). In this case, the defendant stabbed his victim four times because she refused to have sex with him. His victim happened to be a Jehova’s witness and refused a blood transfusion which could have saved her life.

The defendant in Blaue argued that the cause of his victim’s death was the victim herself. But for her refusal to accept a blood transfusion, she would not have died. The court was not persuaded and stated that:

It has long been a policy of the law that D takes his victim as he finds him.

In other words, if a victim has a psychological or physical condition that makes them especially vulnerable to harm, the defendant is still responsible. So in the above case of Michael and Peter, Michael would be held responsible for Peter’s death.

Can the conduct of a victim break the chain of causation?

If a victim causes himself harm by completely overreacting to a threat by D, can D be held responsible for his death? For example, if Stephen telephones John and threatens to slap him, and as a result John jumps out of his penthouse apartment window and falls to his death, can Stephen be held responsible for John’s death?

In the case of R v Williams (1991) the defendant picked up a hitchhiker and allegedly attempted to rob him. The hitchhiker threw himself out of the moving vehicle in an attempt to escape and was killed by the impact.

When the case reached the Court of Appeal they decided that a reasonably foreseeable response by a victim would not break the chain of causation. If the victim’s response fell outside the range of responses which might be expected from a victim in his situation, allowing for any particular characteristic and for the fact that in the agony of the moment he might act without proper thought, then it would break the chain of causation. In other words, if the victim’s response is completely daft then it will break the chain of causation.

So in the above case of Stephen and John, John’s response was completely disproportionate to the threat. Very few people would expect John to jump out of a penthouse window to escape a slap threat delivered over the telephone.

On the other hand, if Stephen had picked up a hitchhiker named Jane and attempted to pull her clothes off, it could be expected that her response in jumping out of the car at 20mph was reasonable. Stephen would be responsible for her death.

Summary

  • Causation is not always straightforwardly a case of “A shoots B and B dies”. There is often a long chain of causation with multiple links contributing to the victim’s death.
  • In order for an act in the middle of the chain to break the chain (a novus actus interveniens) it must be such a significant event that it renders the defendant’s original act a trifling and insignificant part of history.
  • The defendant’s act need not be the sole or even the main cause of the death, provided it was more than a minimal cause of the death.
  • Medical treatment will not break the chain of causation unless it is so independent of the defendant’s acts and so potent in causing death that it renders the defendant’s original act insignificant.
  • A defendant takes his victim as he finds him. All harm flowing from the victim’s weaknesses are attributed to the defendant.
  • The subsequent response of the victim only breaks the chain of causation if it was completely unforeseeable and daft.

Recklessness

Introduction

In this post, we will be considering another form of mens rea known as recklessness. Recklessness sits on the second tier of mens rea, being the second most serious after intention:

Hierarchy of mens rea

Hierarchy of mens rea

It is strongly suggested that you should read the post on intention and complete the thought exercises and tasks on that page before progressing to this post.

We are going to look at how the courts in England and Wales have struggled to define the concept of recklessness. This is where your understanding of objectivity and subjectivity come into play.

We will track the development of recklessness through to the present day. This development can be represented on a timeline (click the image to enlarge):

Timeline

The courts began with a subjective definition of recklessness, then swerved into an objective definition, before overruling themselves and returning to a subjective understanding. As the law stands today, recklessness may be defined as: “The conscious taking of an unjustified risk”.

Once you have completed this post, you should have a good understanding of the two most important forms of mens rea: intention and recklessness. This understanding will enable you to begin studying the majority of criminal offences in England and Wales.

Subjective Recklessness

We begin our story in 1957 with the landmark ruling in R v Cunningham (1957). In this case, the defendant had ripped a gas meter off the wall in order to steal the money contained inside it. The immediate consequence of his damage to the gas meter was a dangerous gas leak. The noxious gas seeped into his neighbour’s home and endangered her life. He was charged under S 23 of the Offences Against the Person Act 1861 with administering a noxious thing.

During the defendant’s trial, the judge directed the jury that the offence under section 23 required an element of “wickedness” in his mens rea. The defendant appealed this judgment to the Court of Appeal, who overturned the judgment of the lower court.

The Court of Appeal stated that the offence required recklessness, and went on to provide a definition of that term. Recklessness was a subjective concept: in order to be guilty of an offence requiring recklessness, it most be proved beyond reasonable doubt that the defendant caused a dangerous situation (an objective question) and that the defendant knew there was a risk that he would create a dangerous situation (a subjective question).

To state it tersely, Cunningham imposed a two-part test:

  1. Did the defendant create an obviously dangerous situation (a question of objective fact for the jury to decide)?
  2. Did the defendant realise that his actions might bring about a dangerous situation (a subjective question – what was the defendant’s opinion at the time)?

TaskTask

Apply the subjective Cunningham test to the following scenario:

Nigel is a man of abnormally low intelligence. His boss fires him from his job as a porter at a local hotel because the guests have been complaining that he is unhelpful and forgetful. Enraged at his new-found unemployment, Nigel sets fire to the waste paper bin in his employer’s office before leaving the premises.

The fire in the bin gradually spreads to the entire office, and then the lower floors of the building. By the time the fire brigade arrives, Nigel’s fire has caused £1m pounds worth of damage.

Nigel is arrested by the police and charged with criminal damage. In court, the main question before the jury is whether or not Nigel was aware that by setting fire to the bin he was creating a risk that the lower floors of the hotel would be damaged.


In the case of R v Stephenson (1979) a schizophrenic boy lit a fire in the middle of a haystack to keep himself warm. The haystack caught fire and spread to a nearby property, causing substantial damage.

During the defendant’s trial, the judge directed the jury in the following terms:

First you perhaps want to ask yourselves whether in lighting the fire the accused carried out a deliberate act, and the answer to that one thinks must be yes, because he has said that he lit the fire. Secondly, you may want to ask yourselves whether you regard it or not as an obvious fact that there was some risk of damage, and when the act is the act of lighting a fire inside a straw stack, you may have little difficulty in dealing with the question whether it is an obvious fact that there is some risk of damage. Did he then do that knowing or closing his mind to the obvious fact, in the case from which these words are taken, as I say the reason advanced or the reason found for the man closing his mind to the obvious fact was that he was so angry that he pressed on regardless, and there may be…… all kinds of reasons which make a man close his mind to the obvious fact — among them may be schizophrenia, that he is a schizophrenic.

The defendant appealed to the Court of Appeal, and they quashed (overturned) this conviction. The problem with the trial judge’s direction to the jury was the addition of “closing his mind”. The test should be entirely subjective; if you convict a man because he closed his mind to the risk then you convict him even though he is not subjectively aware that he is creating a risk. In other words, the trial judge erroneously allowed the jury to ignore part 2 of the Cunningham test and reformulate it in the following way:

  1. Did the defendant create an obviously dangerous situation?

So we can see from R v Stephenson that the courts were not prepared to introduce an objective standard of recklessness. They appear to have been aware of that fact that a man should not be guilty of a serious criminal offence unless his mind also be guilty. In the earlier post on actus reus and mens rea, we covered one of the fundamental concepts of criminal law: actus non facit reum nisi mens sit rea (an act does not make a man guilty of a crime unless his mind also be guilty).

If you are unaware that you are creating a dangerous situation – even though the vast majority of ordinary people would think it was obvious – you should be guilty of nothing more than stupidity or mental deficiencies.

Objective Recklessness

In 1982 the House of Lords (now the Supreme Court) heard the case of MPC v Caldwell (1982). The facts of this case are very similar to the facts in the above task:

The defendant had a grudge against his employer, a hotel owner. One night, he got himself very drunk and set fire to the hotel. He was charged with criminal damage and argued that he had been so drunk at the time that he had no idea he was causing an obvious risk of serious damage.

During his trial, the defendant was convicted of criminal damage and appealed that decision to the House of Lords, claiming that he had given the prospect of serious damage no thought due to his intoxicated state.

Academic opinion states that the courts in this case could have found the defendant guilty under the existing Cunningham test for recklessness. The fact that D had started a fire in the middle of a hotel carries with it such an obvious likelihood of serious damage that the defendant must have realised it. It would have taken an awful lot of persuasion to convince a jury that he remained oblivious to the risk throughout his acts.

Of course, lots of defendants brought before a court on charges of criminal damage – or any other offence requiring recklessness – will insist that they did not appreciate that they were creating a risk. Their thoughts are private and there is no way a jury can read a defendant’s mind. The courts have to examine the facts of each case, and the character of each defendant, in order to decide whether or not they knew they were creating a risk.The fact that a defendant says “I didn’t know I was creating a risk, My Lord!” is not the be all and end all of every trial.

Nonetheless, the House of Lords saw fit to formulate a brand new test for recklessness in Caldwell:

  1. D does an act which in fact creates an obvious risk that property will be destroyed or damaged (objective).
  2. When he does the act he has either not given any thought to the possibility of there being any such risk or he has recognised that there was some risk involved and has nonetheless gone on to do it. (subjective or objective).

TaskTask

Study the two-part tests in both Cunningham and Caldwell and try to identify the key difference.

There is one key difference between the Cunningham and Caldwell tests: the “not given any thought” element.

So, under Caldwell, you could be found guilty of an offence requiring recklessness if you either knew you were creating an obvious risk or gave no thought to the possibility of creating a risk. In other words, the test could be entirely objective. It no longer mattered what the defendant’s beliefs were at the time of the crime.

If you were working for the Police, your questioning of a man suspected of criminal damage could go something like this:

“Were you aware that by starting that fire in the bin to keep warm, you might have caused severe damage to the nearby building?”

“No!”

“Well, you should have been aware. I’m charging you with criminal damage.”

The ruling in Caldwell was heavily criticised by academics and judges, as well as other commonwealth jurisdictions. Perhaps the strongest suggestion that the test was unfair came from the case of Elliott v C (1983).

In Elliott v C a fourteen year-old girl of very low intelligence entered a shed in the early morning, poured white spirit on the floor, and set it alight. All the evidence suggested that her intelligence was so low that she had no idea she was creating a risk of serious damage to the shed. Nevertheless, judge Robert Goff LJ had to express his extreme unhappiness with the fact that he had no choice but to follow the test laid down in Caldwell and find the young girl guilty of criminal damage.

The result in Elliott v C was nothing less than the punishment of a young girl for the crime of having been born with a mental disability. Her actions might have been morally outrageous when committed by a person of sound mind and intelligence, but only because a person of sound mind and intelligence would have known exactly what they were doing.

Let’s consider a loose analogy: we would morally condemn a human being for murdering and eating another human being, but we would not condemn a lion for doing the same thing. The human being has the cognitive ability to think about what he is doing, to understand that it causes pain and suffering to the victim and her family, and to think morally. The lion does not.

The purpose of this analogy is certainly not to compare the mentally disabled with animals, but to highlight the point that we only pass moral, and surely therefore criminal, judgment on living beings who are capable of exercising their free will in an informed way. All the evidence suggests that the defendant in Elliott v C was not capable of making such a rational decision. So whilst our emotions, and our predisposition to think of all humans as possessing a similar level of consciousness to our own, might wish to condemn the young girl – that moral or criminal condemnation might lack a rational basis.

The Law at Present – Subjective Recklessness

In 2003, the House of Lords made the rare decision to overrule its previous decision in Caldwell. Although the highest court in the land has been able to depart from its earlier precedents since the introduction of the Practice Statement in 1966, it very rarely does so. England and Wales has a strict system of legal rules based on precedent (the idea that like cases should be treated alike), but the highest court in the land may ignore previous judgments if it is in the interests of justice to do so. To state it bluntly, the Supreme Court (formerly known as the House of Lords) may ignore its own previous decisions if they are so bad that they do not fit with modern ideas of justice.

In R v G and another (2003) two boys, aged eleven and twelve, went camping without their parents’ permission. They set fire to some newspapers and thew them beneath a wheelie-bin. The fire spread to the bin and a nearby shop, causing £1m of damage.

During their trial, the two boys were convicted of arson under the Caldwell test for recklessness.

When the case was appealed to the House of Lords, Lord Bingham provided the court’s reasons for overruling its earlier decision in Caldwell: 

  1. It is a fundamental principle of criminal law that conviction of a serious crime should depend on proof of a guilty mind. If you fail to perceive something which is obvious, you are guilty of stupidity or a lack of imagination. Nothing more.
  2. The model used in Caldwell is open to unfairness. It is neither moral nor just to convict someone on the basis of what somebody else would have perceived (this is rather like convicting a lion of murder or rape on the grounds that another living being would have perceived that it was immoral).
  3. Academics, judges, juries, and other countries all think it is unfair.

Lord Bingham replaced the objective rest for recklessness under Caldwell with the following test:

A person acts recklessly with respect to:

  1. A circumstances crime when he is aware of a risk that it exists or will exist.
  2. A results crime when he is aware of a risk that it will occur.

And it is, in the circumstances known to him, unreasonable to take that risk.

So now we are back to subjective recklessness: did the defendant create a risk, and did he appreciate that he was creating a risk?

There is a caveat in the recklessness test under R v G and another: the risk must be one which, in all the circumstances known to the defendant, it was unreasonable to take. This creates a loophole in cases where a defendant takes a reasonable risk. It recognises that life is not always a risk-free endeavor.

For example, if I spot two men attempting to rape a woman in a dark alleyway, it would be reasonable for me to throw a stone at them in order to scare them away. There is a risk that the stone will hit one of them in the face and cause him some harm, but in those circumstances it would be reasonable for me to take that risk.

Summary

  • The law of England and Wales began with a subjective definition of recklessness, relying on the defendant’s own beliefs.
  • The House of Lords in Caldwell unnecessarily adopted an objective definition of recklessness which led to widespread criticism.
  • The House of Lords took the rare step of overruling the decision in Caldwell and restoring the law to a subjective definition of recklessness.
  • It is still possible to consciously take a risk, provided that risk is a reasonable one.

Intention

Introduction

As we saw in the overview of actus reus and mens rea, the vast majority of criminal offences in this country require proof of some kind of guilty mind. In general, the law does not punish the morally blameless.

In this post, we are going to take a look at just one form of mens rea, which happens to be the form usually required for more serious crimes such as murder and burglary: intention.

In the grand scheme of mens rea, intention is at the top of the pyramid:

Hierarchy

The hierarchy of mens rea

There are two other forms of mens rea known as recklessness and negligence. But even before we begin to look at what these terms mean in the legal profession, we can perhaps see why intention is at the top:

TaskTask

You are a judge sitting in your local Crown Court and you are faced with the following two cases. To which defendant, Ben or Craig, would you give the longer prison sentence?

  1. Ben throws a brick from the balcony of his penthouse apartment. He has spotted his sworn enemy, Chris, standing on the pavement below, and he desires his swift death. The brick is well aimed. It falls directly onto Chris’ head and kills him.
  2. Craig lives in an apartment with Tom. Tom is getting on Craig’s nerves because he never washes the dishes and leaves mountains of rubbish on the worktop. In a fit of rage, Craig picks up a noodle-stained plate and hurls it out of the window. Although it is the middle of the night, Chris is standing on the pavement below enjoying a midnight kebab. The plate hits him on the head and causes his death.

The law recognises that although Ben and Craig have both committed a serious crime, it is only Ben who can be labelled a murderer. Ben intended to kill Chris, whereas Craig was merely reckless.

Once you have understood this post, you will be able to understand and discuss the mens rea requirements of many serious offences. Read in conjunction with the post on actus reus, you’ll have the tools necessary to begin learning about specific offences.

What does ‘intention’ mean?

Consider the following scenario:

Kanan has a three month-old child who refuses to stop crying. She has been crying for three consecutive nights and Kanan has tried everything to satisfy her needs and get her to sleep so he can rest with his wife. He is unsuccessful. On the fourth night, he marches into the baby’s room and throws her against a brick wall. The child subsequently dies of a fractured skull.

Kanan is charged with murder – an offence requiring the prosecution to prove beyond reasonable doubt that Kanan intended the death or grievous bodily harm  of his child. During his court hearing in Liverpool Crown Court, Kanan breaks down into tears and insists that he did not desire the death of his child.

Would you say that Kanan intended his child to die?

The dictionary equates intention with desire or purpose, so you might conclude that he did not intend the death of the child. You might conclude that Kanan – although he foresaw that death or serious harm was very likely, or almost certain, to result from his actions – was simply reckless.

The law takes a different view.

In the case of R v Woolin (1998) the House of Lords (now the Supreme Court) was faced with an identical case to Kanan’s. A man threw his three month-old child against a wall and caused her death. The court ruled that a jury may conclude that the defendant possessed the required intention if the death or grievous bodily harm was virtually certain to occur as a result of his actions, and the defendant foresaw that this was the case.

So the court made it clear that intention and desire are two totally separate, distinct, and different concepts. Even though Woolin did not desire the death of his child, the fact that the death was virtually certain to occur meant that he intended it to occur.

To make things simple, we can split intention into two parts. If you are faced with a problem question in which you must decide whether or not the defendant intended something, then you must ask yourself the following two questions:

  1. Was the actus reus (in the case of murder, death) virtually certain to occur as a result of what the defendant did?
  2. Did the defendant foresee that this was the case?

The first part of the test is objective; the second part is subjective.

A word on objective vs subjective

These are very fancy-sounding words for relatively simple concepts.

Objective simply means a measurable, provable fact. If I were to say that “Widnes is a town in England”, I could produce a map and prove it to you. There is no room for an alternative opinion. There is a right and a wrong answer.

Subjective simply means an opinion or belief. If I were to say that “house music is better than rock music”, you might argue the opposite. There is no way of proving that I am right or you are right. We are both right. For me, house music far surpasses any other genre. For you, rock music reduces house music to a serious of boring bleeps and whistles. The important point is that there is no overall correct answer to this debate. There is room for more than one opinion.

TaskTask

Look at the image below. Write-down five objective points about it and five subjective points:

henry-viii

Some objective points would include: Henry VIII has a beard, he is wearing a hat, he is wearing a necklace, he was the king of England, he employed Thomas Cromwell, he made himself head of the church. These are all facts. If you tried to argue that he was not wearing a hat, you would be incorrect.

Some subjective points would include: the painting is beautiful, he is unattractive, his pose looks stupid. I might disagree with you and you would have no way of proving who is right and who is wrong.

So, moving back to intention. Part one of the test is an objective inquiry: as a matter of fact was it virtually certain that death or serious harm would result (in the case of murder)? Part two of the test is subjective: did the defendant realise that it was virtually certain?

Going for better grades

If you want to aim for a distinction or a 1st in a problem question on intention, it’s worth mentioning the case of Matthews and Alleyne (2003).

In that case, two defendants pushed a man off a bridge knowing that he was unable to swim. The man drowned.

Both men were convicted of murder but they appealed that decision to the Court of Appeal (one step below the Supreme Court in the hierarchy) on the grounds that the trial judge had directed the jury that the virtual certainty rule guaranteed that the defendants intended the victim’s death.

In other words, the judge said something like this to the jury:

If you believe that it was virtually certain that the victim would die as a result of the defendants pushing him off a bridge, then you have no choice but to conclude that the defendants intended to kill him.

When the case reached the Court of Appeal, the judges quashed that decision. They said that the trial judge should not have directed the jury that virtual certainty always equals intention. It might provide very strong evidence that he intended the death, but the jury are free to look at other evidence that might suggest a lack of intention.

Confused? You are not alone. The author of the most authoritative textbook on criminal law has argued that the decision in Matthews and Alleyne (2003) makes it far more difficult to predict the outcome of cases and leaves lots of room for inconsistent decisions.

Essentially, a jury could take a case similar to R v Woolin and reach a completely different decision because other evidence suggests a lack of intent.

If you are tackling a problem question, you can use Matthews and Alleyne (2003) to be much more critical and thoughtful. You can conclude that a guilty verdict is likely due to the result being virtually certain, but can continue to pick out other facts in the question that might suggest a lack of intent.

The art of a good answer to a problem question is to argue as strongly as possible from both sides of the case but to come down on one side. Matthews and Alleyne is therefore a gift to law students because it casts doubt on both the prosecution and defence cases, making it easier to argue from both sides.

Summary

  • Intention and desire are two totally different constructs.
  • If the actus reus of a particular offence was virtually certain to occur, then a jury is entitled to infer that you intended it to occur.
  • Matthews and Alleyne (2003) makes it clear that a jury is only entitled to infer that the consequence was intended. They do not have to come to that conclusion.

Actus Reus and Mens Rea – Overview

Introduction

Before we can begin to discuss specific criminal offences like murder and rape, it’s vital that we are all singing from the same hymn sheet. We need to understand the fundamental concepts of criminal law.

To be found guilty of a criminal offence carries grave consequences for one’s livelihood: criminal records, prison time, fines, community service, stigma. In the vast majority of cases, the criminal law punishes people for outrageously immoral behaviour which has an impact on society as a whole.

Think about it. Why do you think most criminal cases begin with R v ….?

The R stands for Regina, which is Latin for Queen, and in the UK the Queen is shorthand for the state as a whole. To state it tersely, when you’re hauled before a magistrate or the Crown Court for a criminal offence, you are being prosecuted by the state for an act which is so serious that everyone in society has an interest in seeing it punished. And even if the Crown Prosecution Service decides not to take you to court, any English subject can use his own money to prosecute you. That’s any English subject, even if they were not a victim of the crime or anywhere near the crime.

Once you have mastered the contents of this post, you will have the tools necessary to understand specific criminal offences.

Actus reus and mens rea

With that in mind, it’s necessary to consider what is required in order for an action to be worthy of strong moral condemnation.

TaskTask

Consider the following scenarios:

  1. I intentionally shoot my friend Michael in the head and kill him. Am I guilty of a crime?
  2. I’m in a secure shooting range and my friend Michael breaks in and jumps in front of my bullet. There was nothing I could do to prevent it. Am I guilty of a crime?

In both scenarios the physical elements are the same: I have pulled the trigger and launched a bullet into Michael’s head. The consequences of my act are the same in both cases: Michael has died.

What is it that makes scenario 1 criminal where scenario 2 is not? It can’t be anything physical.

The only variable is my mental state. In scenario 1 I intended to kill Michael. In scenario 2 I had no such intention: I was blamelessly inadvertent.

One of the core principles of criminal law is expressed in the Latin phrase “actus non facit reum nisi mens sit rea”, which is a very ostentatious way of saying “an act does not make a man guilty of a crime unless his mind also be guilty“.

From this very simple thought experiment, we have deduced two fundamental elements of criminal offences:

  1. Actus reus – Latin for guilty act. 
  2. Mens rea – Latin for guilty mind.

So in order for me to be guilty of murder I must kill a human being (actus reus) with intention to kill or commit grievous bodily harm (mens rea).

The prosecution must prove beyond reasonable doubt that I carried out the actus reus and that I had the mens rea. If either of these two elements of murder cannot be proved beyond reasonable doubt, then I must be acquitted.

So if I’m defending myself against a charge of murder in the Crown Court, I could advance some evidence to suggest that I did not intend to kill Michael. That evidence might be quite tenuous and shaky but nevertheless enough to create some reasonable doubt in the minds of the jury. It is important to remember that the jury does not need to be convinced that my defence is true, merely that it might reasonably be true.

TaskTask

In civil law (breach of contract etc) the court must be convinced “on the balance of probabilities” that I have – for example – broken my contract. This is a much lower standard of proof than the “beyond reasonable doubt” required in criminal law. Why is there a difference?

When you think about it, the necessity of proving both actus reus and mens rea makes sense when you consider the aims of criminal law. We imprison people because they are dangerous and need to be kept away from the general public – but surely they are only dangerous if they have exercised their free will in committing a crime. We force people to perform community service or to pay a fine in order to punish them and deter further bad behaviour – but this is pointless if they didn’t behave badly in the first place.

No conviction without actus reus

If you have read George Orwell’s great masterpiece “Nineteen Eighty-Four” you will be familiar with the concept of thoughtcrime. Big Brother attempts to control people’s minds in order to prevent unspoken criticism of the ruling party.

In England, we do not punish thought crime. We recognise that some people will have dark thoughts or fantasies, and they may well require psychological attention, but human beings also possess free will. If we exercise that free will to keep our dark thoughts private and do not act upon them, then we do not draw the attention of the law.

For these reasons, we don’t punish people for mens rea alone. I might harbour a secret desire to kill my wife, but unless I carry out the actus reus of murder I am guilty of nothing more than being unpleasant.

Consider the case of R v Deller (1952). Here, the defendant attempted to mortgage his car to a finance company but he failed to fill out the paperwork correctly. He then induced his victim to purchase the car and deliberately omitted to tell him that it was – so far as he knew – mortgaged to a finance company and he had no right to sell it. The defendant was charged with fraud but was acquitted. He had the mens rea for fraud, but he hadn’t committed the actus reus because the car wasn’t mortgaged due to an error in the paperwork.

So we can see that if there is no actus reus, there is no offence.

Different forms of actus reus

Although the literal translation of actus reus is “guilty act”, the concept in fact covers more than just acts. These can be divided into the Three Cs:

  1. Conduct
  2. Circumstances
  3. Consequences

Conduct is defined as “personal behaviour”. The offence of perjury requires the delivery of false testimony before a court (or lying, in other words). It doesn’t matter whether or not your lie is believed, so it is not a consequences crime.

Circumstances is defined as a “state of affairs”. So, for example, it is an offence to be in control of a motor vehicle whilst drunk. It doesn’t matter whether or not your driving is dangerous (you might somehow manage to drive perfectly safely), so it is not a conduct crime; and you don’t have to cause any damage, so it is not a consequences crime.

Consequences is defined as “the result or outcome of an act”. The classic example of a consequences crime is murder, where the actus reus requires the unlawful killing of a human being.

It is important to remember that some crimes contain multiple forms of actus reus. Rape, for example, requires penile penetration of the vagina, anus, or mouth (conduct) without consent (circumstances).

Different forms of mens rea

Mens rea comes in many forms, and one must study the content of the law to discover what form is required. The most common are:

  1. Intention
  2. Recklessness
  3. Negligence

These are not quite as straightforward to understand as the actus reus categories, so we will just cover them in outline.

Intention can be direct or oblique. Let’s take murder as a simple example:

Direct intent means that is is your desired purpose to kill your victim. You aim the shotgun at their head and pull the trigger.

Oblique intent means that it might not have been your purpose to kill your victim, but you nevertheless foresaw that death was a virtual certainty.

The leading case on oblique intent is R v Nedrick (1986)In this case, the defendant had a grudge against his victim and he threatened to “burn her out” of her home. In a fit of rage, he poured paraffin through her letterbox and set fire to it, causing a raging inferno which killed her young child.

The defendant was charged with murder but he argued that it was not his desire to kill the child. On appeal, the Court of Appeal decided that a jury is not permitted to infer intention unless the death was a virtual certainty and the defendant realised that this was the case.

The ruling in Nedrick was later confirmed by the House of Lords (now the Supreme Court) in R v Woolin (1998).

In summary, it doesn’t matter whether or not you desire your victims death, it is enough that his death was virtually certain to occur as a result of your actions.

To be reckless is to knowingly take an unjustified risk. The courts have struggled with this concept over the years and we will consider it in more detail in later posts. For now, you need to appreciate that there are two ways of looking at recklessness: objectively and subjectively.

Objective recklessness means taking a risk which an ordinary and reasonable person would consider unjustified. Subjective recklessness means taking a risk which you personally find unjustified. There is a huge difference between the two forms. Do you think an abnormally unintelligent person would have the same opinion as a reasonable man?

As we shall see, after much prevarication English law has settled on the concept of subjective recklessness.

Negligence differs from recklessness in one key respect: recklessness requires the conscious taking of an unjustified risk, whereas negligence requires the inadvertent taking of an unjustified risk. To establish negligence, the prosecution must prove that the defendant’s conduct fell below what would be expected of a reasonable person.

TaskTask

Consider the following scenarios and identify the form of mens rea.

  1. Ben and Craig are builders and they are spending their lunch break on the roof of a house. Ben decides to play a game which involves throwing bricks at passers-by and attempting to hit them. He does not desire anybody to die, but he strikes an old woman on the head and kills her.
  2. Ben and Craig decide to see who can throw a brick closest to the edge of the roof. They are aware that pedestrians are walking on the pavement beneath them. One of Craig’s bricks falls off the edge, strikes George on the head and kills him.
  3. Ben and Craig have been working in a heavy wind all day, and when they go home at the end of their shifts, they leave their bricks in a pile by the edge of the roof, thinking that the wind isn’t quite strong enough to blow them over. During the night, the wind blows the bricks over the edge, resulting in the death of Liam.

Coincidence of actus reus and mens rea

Actus reus and mens rea must occur at the same time. If I intend to kill my flatmate next week by poisoning him, but he dies as a result of an accidental house fire caused by me, then I am not guilty of murder.

Summary

  • In general, criminal offences require proof beyond reasonable doubt of an actus reus and a mens rea.
  • There are different forms of actus reus and mens rea and these can be discovered by studying the law in question.
  • Actus reus and mens rea most coincide.