Concept of criminal liability - revision notes.
Module 3 - Concept of criminal liability
MENS REA - Guilty Mind
ACTUS REUS - Act Done
Mens Rea and NO Actus Reus = No Criminal Liability
NO Mens Rea and Actus Reus = Strict Criminal Liability
Basic criminal procedures
Criminal: -
* Arrested and charged by the police
* CPS
* Appear in Magistrates Court at 1st opportunity.
Preliminary hearing (committal proceedings) The Defendant pleads guiltily or not guilty.
Magistrates set a date for next hearing.
* A date set for sentence or subsequent trial.
Bail conditions set or rejected.
Legal aid may be given.
Magistrates may throw the case out because there is no case to answer.
There are 3 criminal cases: -
. Summary - Only ever heard in Magistrates Court
2. Trial Either Way - 1861 OAPA s47 ABH / Mode of trial hearing
3. Indictable - Serious offences heard in Magistrates then Crown
The main functions of an Appeal court is to: -
* Uphold the decision
* Overturn the decision
* Substitute a lower sentence
* Substitute a lower offence
* Order a retrial
Judicial Precedent
Law can be made in a court or be passed by Parliament.
R v R 1991. This is a good example 1956 SOA
Criminal Liability
. THEFT ACT 1968 s1
"A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention to permanently deprive the other of it; and 'theft' and 'steal' shall be construed accordingly."
MR.: Dishonestly AR: Appropriation
Intention to permanently deprive Property
Belonging to another
2. ABSOLUTE LIABILITY
R v Larsonneur 1933 STATE OF AFFAIRS CRIME - A French woman was deported to Ireland and then sent back to England. When she arrived in England she was prosecuted for being in England.
AR: Set foot in England MR.: None
Winzar v Chief Constable of Kent 1983 - Taken to hospital but discharged. He didn't go home (he was drunk) police removed him from the hospital and put him on the street. Then arrested him because he was found drunk on the highway.
AR: Found drunk on the public highway MR.: None
3 Main types of Mens Rea are: -
* Intention is the highest level of Mens Rea
* Recklessness is the next level of Mens Rea
* Negligence is the lowest level of Mens Rea
Strict Liability
Absolute Liability - State of affairs crime
* Absolute Liability requires no elements of MR. be proven. Liability is totally dependant on AR.
* Strict Liability requires the prosecution to prove some, but not all elements of MR. some parts of the MR. are regarded by the courts as Strict Liability and do not need to be proven by the prosecution.
For example, if a crime had 5 elements of MR., for it to be regarded as Strict Liability the prosecution would have to prove at least 1 element of MR. and no mort than 4 MR.
Case Law: -
R v Hibbert 1869 Acquitted
R v Prince 1875 Guilty Had 2nd MR.
MR.: 1. knowingly having sex with a minor (Girls age Strict Liability)
2. Was the minor in care of father
AR: 1. Intercourse
Identifying Strict Liability
Clearly if an offence contains elements of SL it is vital for the prosecution and defence to be aware of this fact. Unfortunately the wording of the statute gives no indication of SL. At best there are clues which may indicate the existence of SL.
B v D.P.P 1998 B was 14, Girl was 13 (SL)
Clues
. Wording of the statute - Identifying words that are not SL.
. In criminal law there are certain words which clearly refer to the MR. of the defendant, therefore crimes which use these words can not be SL.
2. Words which imply SL include FOUND, FINDING, CAUSE, or CAUSING.
Alphacell v Woodland 1972 Antipollution system failed, therefore SL
Winzor › Found
Larseneur › Found
Advantages of Strict Liability
. Strict Liability offences do not usually incur a custodial sentence.
2. they act as a deterrent
3. Simple, quick, and cheap.
Other Examples of Strict Liability
Offences: -
R v Bowster 1973 Driving whilst disqualified because DVLA sent him back his driving license by mistake. Strict Liability so Guilty.
Smedley v Breed 1974 Caterpillar found in can of peas. MR. was not and issue. Therefore guilty.
R v Blake 1996 CB radio was unknowingly powerful and interfered with public broadcasts. Guilty
Firearms and building regulations are others: -
R v Howells 1977 Believed he had a replica gun, but it was real.
R v Steele 1993 Someone left a gun in his house, he didn't know.
Gammon (Hong Kong) v AG 1985 Gammon deviated from building plans accidentally and the building collapsed.
Reforms
. In 1978 the law commission recommended that SL should be clearly stated in statutes.
2. Smith and Hogan said that, "these matters should be decriminalized" and that they "should be moved out of the courts and into tribunals".
3. there should be good defences for SL
4. Baroness Wooton said that, "All criminal offences should be SL. Prosecution would be based on AR and sentencing on MR."
END OF STRICT LIABILITY
Criminal Liability
ACTUS REUS: - Physical element of the crime
All crimes require AR which in its simplest form can be described as above. A more detailed examination enables us to identify groups of AR of which there are at least 5. These groupings help the prosecution in identifying the correct charge in relation with the events that have taken place.
. RESULT CRIMES - Crimes in this category are identified by their result. This is always the same. What cannot be identified as a common factor is the actions leading to the result as these will be unique to the individual defendant.
E.g. Murder, ABH, Theft, GBH
2. CONDUCT AND CIRCUMSTANCE CRIMES -These require certain cause of conduct but the conduct must be completed under specific circumstances. The actual result of the crime is variable and therefore difficult to specify.
Conspiracy, Burglary, Rape, Driving whilst disqualified, Drink driving, Arson.
3. STATE OF AFFAIRS CRIME -These crimes have the same outcome, but the reasons for these crimes are varied.
Found drunk on a highway, Find, Found, Caused, and Causing.
4. ACTION CRIMES -Crimes which fall into this category are crimes such as Perjury.
5. OMISSIONS -These are not true acts done, but are the failure to do an act. A person does not usually have a responsibility to act unless they are in a position of responsibility for another.
E.g. watching a baby drown in 2 inches of water is not an offence
Positions of responsibility may make it one.
Types of omissions that may attract criminal liability
* Volunteer Responsibility -Stone & Dobinson 1977 -looked after younger sister who had an eating disorder. The girl died from not eating and S & D had a responsibility to look after her which they failed to do.
* Family Members -R v Downes 1875 -Had ill children but his religion stopped him from allowing them medical treatment. They died.
R v Gibbins & Proctor 1918 -children starved by step mother (P) P was not a family member but was seen to have a responsibility, therefore guilty.
* Contractual Relationship -R v Pitwood 1902 -Railway man forgot to close the gate on the track (level crossing) A wagon got hit by a train.
R v Dytham 1979 -Policeman on duty said that his shift had ended when he saw a fight. One of the men was killed.
* Inadvertent creation of a dangerous situation -R v Fagan 1967 -parks car on policeman's foot accidentally. When he realized he refused to move the car.
R v Miller 1983 -Tramp who doses in a bed in a building. He falls asleep smoking and the bed goes on fire. He doesn't put the fire out but just moves to another room to sleep. The building is fire damaged.
* Special Situations -R v Speck 1977 -Man watching little girls in a park. One of the 8 year old girls gives him oral sex. His offence was failing to stop the girl.
Mens Rea
The lower the degree of Mens Rea, the lower the sentence given. Any aspect of MR. brings criminal liability.
Some crimes can only be committed with a particular type of MR., for example, the MR. of intention is the only type acceptable for a conviction for Murder. On the other hand involuntary manslaughter can not be committed intentionally and requires a lower level of MR., E.g. Recklessness.
Some crimes can be committed using several different types of MR. E.g. Criminal Damage. This can be a crime of intention or a crime of objective recklessness. Both MR. will be sufficient for prosecution, but as recklessness is a lower level of blame this can be reflected in the subsequent sentence.
Intention
There are two types of intention: -
. Direct intention
2. Indirect intention
Crimes of intention such as murder are not as simple as they first appear as intention can be considered in several ways. For a successful murder charge the prosecution has various ways of proving intention to the jury. Following the case of R v Smith 1969 the HOL ruled that intention to kill or intention to cause GBH is sufficient intention for murder. Also in murder cases direct and indirect (oblique) intention is sufficient. Cases of direct intention are seldom reported in criminal law. The assassin who shoots his victim in the head proves little difficulty for the jury to convict. However, the arsonist who sets fire to the building to claim insurance money is a far more difficult case when several people are killed in the resulting fire.
Intention
In cases of oblique intention the law accepts that you can intend to do something although you clearly do not want to do it. Lord Scarmen gave a hypothetical example of how a person could intend to do something without wanting the actual result. A man who boards a train to Manchester to avoid capture by the police, this man hates Manchester, therefore he intends to go to Manchester but he does not want to go there.
Oblique Intention in Murder cases
* R v Nedrick 1986 -N had a grudge with the owner of a shop. He sets fire to the building to scare the victim, but the victim dies.
The HOL said that 'in difficult and exceptional cases the jury should be given the following direction, "Where death or GBH is not the defendants aim or wish, the jury may infer intention if they decide that death or GBH was a virtual certainty and that the defendant foresaw that this was the case."
* R v Greggory & Mott 1995 -G encourages M to use a knife in the victim. M stabs the victim to death. M said that she never thought about it, but just did as she was told. Nedricks direction was not taken. It was seen as direct, not oblique intention.
Recklessness
This is defined as unjustifiable risk taking.
There are 2 types of recklessness: -
. Subjective / Cunningham 1957
2. Objective / Coldwell 1982
Subjective - the defendant foresaw the possibility of the risk but decided to take the risk anyway.
R v Cunningham 1957 -Thief broke into house next to mother in-law. He stole the gas meter which caused a gas leak. This gassed his future mother in-law and made her ill.
He was charged with gassing.
* OAPA 1968 s23 - Maliciously administering a noxious thing as to endanger life.
* Direction was 'Word malicious mean wicked'
Appealed about the direction - successful - COA said, "word malicious had the following meanings: Intention- direct or oblique or subjective recklessness"
From this point on, when parliament wrote a new statute, the word malicious would not be used.
Objective - this is where the defendant did not see a risk but should have seen the risk.
R v Coldwell 1982 -Arsonist who set fire to a hotel. No one was killed but charged with Criminal Damage Endangering Human Life.
* 1971 Criminal Damage Act
Wording does not include malicious. It states intention or recklessness.
Did not have either because he was drunk at the time.
971 Criminal Damage Act is a statute which is not bound by previous case law. The judge said that the CD Act did not mean subjective, but much more, objective recklessness.
* Appealed and the COA upheld the decision.
Coldwell Test -If the defendant claims to have not foreseen the risk and therefore be subjectively innocent. The prosecution can apply a further test.
-This objective test is that 'The defendant failed to see the risk (of any criminal act) but the risk was obvious to the reasonable person (i.e. the Jury)
Subjective and Objective Recklessness
The 2 test of subjective and objective recklessness apply to different types of offences. Following the case of CALDWELL, crimes which were judged objectively increased significantly, however, it is a harsh test. The defendant is found guilty for what he did not see. As a result in recent years the law has moved back towards the subjective test. The current position is as follows: -
Offences tried subjectively: -
. All offences under the 1861 OAPA plus Common Assault and Battery
2. Rape - R v Pigg 1983 - found objectively reckless, however, later decided in R v Satam, R v Kewel 1984 that rape will be a subjective test.
3. Gross Reckless Involuntary Manslaughter - the position regarding this offence is unclear, following the case of R v Adomako 1995 this offence may no longer exist. The correct test may now be a test of negligence rather than recklessness.
Offences tested Objectively
. All offences under the 1971 Criminal Damage Act
2. The Data Protection Act - this followed a surprise judgment in the case of the Data Protection Registrar v Amnesty International 1995.
3. immediately following the COLDWELL case, the case of Lawrence 1982 and Reed 1990 established that this offence would be objectively tested, however, the offence has since been replaced by 'Death Caused By Dangerous Driving'
Caldwell Lacuna
A person charged with Criminal Damage will possibly have the MR. for the offence in 3 main ways: -
. Intentionally causing damage
2. Risk seen of damage and took the risk
3. Failed to see the risk but the risk was obvious
It has been argued that there is a further possibility which falls outside the test. This would therefore result in the defendant being acquitted.
4. The defendant identified the risk and wrongly concluded that the risk was minimum.
Cases of Caldwell Lacuna
R v Shimmen 1986 - Kung Foo expert who broke a shop window by accident.
R v Merrick 1995 - Thief who stole an electric meter, then pushed the wires back into the wall and cemented it up. He was convicted because he endangered his own life for 6 minutes.
The Harshness of the Caldwell Test
The Caldwell objective test allows the defendant to be found guilty because they failed to see a serious and obvious risk. They are judged by the jury who represent 'reasonable' People, however, what if the defendant is clearly not a reasonable person. Should the jury still be directed that they must judge them as a reasonable person; the reasonable person test still applies even if the person is not reasonable.
Elliot v C (a minor) 1983 - Charged with Criminal Damage. He was 14 years old, and below average IQ, he was also sleeping rough.
He set fire to a shed that he was staying in by accident.
Acquitted because he did not understand the risk.
* Was the youth court correct? The decision was seen as incorrect and she should have been judged as a reasonable person.
R v Bell 1984 - Had a long history of mental illness. He hears voices from God. He claimed that God told him to smash the gates at Butlins.
Convicted as a 'reasonable' person.
R v Coles 1995 - 15 year old boy, Low IQ, Arsonist. Convicted as a 'reasonable' person.
Summary of MR. of Recklessness
. The law is difficult to understand. Both judges and particularly juries find the 2 tests of recklessness difficult to understand and correctly apply.
2. A jury may be asked to consider 2 forms of recklessness for what they regard as a single criminal offence
Smith & Hoggan - Someone with an air rifle recklessly points it in the direction of a crowd and pulls the trigger. The pellet smashes the victim's glasses and then damages the eye.
Criminal Damage Act 1971 Intentionally
Recklessly (subjective / objective)
Failed to see a risk
OAPA 1861 GBH s20 Subjective recklessness (intention and seen risk but took it anyway)
3. It has been pointed out that the 2 tests ...
This is a preview of the whole essay
2. A jury may be asked to consider 2 forms of recklessness for what they regard as a single criminal offence
Smith & Hoggan - Someone with an air rifle recklessly points it in the direction of a crowd and pulls the trigger. The pellet smashes the victim's glasses and then damages the eye.
Criminal Damage Act 1971 Intentionally
Recklessly (subjective / objective)
Failed to see a risk
OAPA 1861 GBH s20 Subjective recklessness (intention and seen risk but took it anyway)
3. It has been pointed out that the 2 tests of recklessness result in property being better protected than the individual. For example, in the scenario above, the persons glasses under the Criminal Damage Act are better protected than the persons eye under the OAPA
4. Possible existence of the Caldwell Lacuna
5. The harshness of the Caldwell Test
Mens Rea
. Intention only
2. Recklessness only
3. Intention and recklessness
. Subjective / Cunningham
OAPA
. Did the defendant intend?
2. Subjective Test
2. Objective / Caldwell
Criminal Damage
. Did the defendant intend?
2. Subjective Test
3. Objective Test
4. Caldwell Lacuna - No one has successfully used this!!
4. Gross Negligence
Negligence as MR.
Negligence has always had a minor role in the criminal legal system. It was defined in 'Batman Test' of 1925 following R v Batman 1925. This refers to negligence which showed such disregard to human life as to be regarded as criminal. However, the expansion of recklessness with the Cunningham 1957 and Coldwell 1982 appeared to swallow up the concept of criminal negligence.
However, in a surprise decision in the HOL in R v Adomako 1994/95 the HOL decided that his conviction for Gross Reckless Involuntary Manslaughter was in fact incorrect. Adomako, an anesthetist had failed to see that his patient was starved of oxygen, as a result the patient died. The HOL concluded that this was not reckless behavior, but Gross Negligence and so substituted the conviction of Gross Negligent Involuntary Manslaughter. This test of Gross Negligence is both Subjective and Objective which has lead many commentators to suggest that it is virtually identical to Coldwell Recklessness.
The Concept of Transferred Malice
It is not a true crime. The crime id the offence by transferred malice. E.g. Murder by transferred malice.
* A takes a shot at B intending to kill him, but kills C by mistake. The MR. directed at B has been transferred to C, combined with C's death this results in murder.
* All non fatal offences can be produced through transferred malice
* Rape offences can be produced through transferred malice
* Theft can be produced through transferred malice
* Reckless only crimes can not be produced through transferred malice
Case law
R v Latimer 1986 - Pub brawl. Swung belt at intended victim but hit bystander by mistake.
Transferred malice can only occur within a particular offence. E.g. aimed to hit A, but hit B.
R v Pemblineton 1976 - Threw a brick at victim. The brick missed and broke a window.
It is possible to transfer malice within the same category of offences if these aims have a common MR. but a different AR. This can easily occur in non fatal offences.
Defences in transferred malice
If a defence existed for the original intention the same defence will be available if the malice was transferred. E.g. A throws a brick at B, and kills C, an innocent bystander. A threw the brick at B as B was attacking A with a knife. Therefore A was attempting to defend himself against B. this defence would be available regarding the murder of C.
The coincidence of MR. and AR
R v Fagan 1969 - AR & MR. = Criminal Liability
R v Shorty 1950 - He assaulted intending to kill. He believed he killed, but the victim was only unconscious. Dumped the victim in a sewer and the victim died.
* Defence said, 'No MR. at the time of 'death'
* Court said, 'Did have MR. & AR at some time so it was sufficient.
Thabo Meli v R 1954 - beat victim. Believed victim was dead so threw him off a cliff. Victim died from exposure.
R v Church 1966 - Attempted to have sex in a van but failed. She pointed this out so he 'killed' her. When he realised what he had done he tried to revive her but failed, so he threw her in the river and she drown.
- Gross Reckless Involuntary Manslaughter.
AG Reference (Number 4 of 1980) - Defendant fights with a woman. Defendant pushes he down the stairs, she bangs her head. He puts rope round he neck and pulls her back up the stairs. He then drains her blood and finally cuts her up into small pieces.
Time of death was unknown therefore MR. in doubt.
However, MR. & AR were present at some time.
Non fatal offences against the person
. Common Assault
2. Common Battery (1 & 2 are separate charges but can have both together)
3. OAPA 1861 s47 ABH
4. OAPA 1861 s20 GBH (1, 2, and 3 are linked)
5. OAPA 1861 s18 GBH
Common Assault & Battery
Common = Common law offence (non statutory offences. Case law not statute offence)
These common law offences have been developed by the courts and not by Parliament. However, the Criminal Justice Act 1988 (s39) tells us that these offences are summary with a maximum penalty of 6 moths custodial sentence and/or £5,000 fine.
Definitions COMMON ASSAULT - Words and action
'Causing the victim to apprehend immediate physical harm'
R v Fagan 1969 - 'It is to intentionally or recklessly put the victim in fear of immediate unlawful personal violence'
Intentionally = OBLIQUE or DIRECT INTENTION
Recklessly = SUBJECTIVE or CUNNINGHAM
AR of Common assault is words and actions
R v Mead & Belt 1823 - Just words & actions
Assault can also be no words › Stalkers phone and say or do nothing.
R v Constanza 1997, R v Ireland 1996, R v Burstow 1997
Actions
R v Lewis 1970 - Husband chased wife into bedroom
Common assault (she fell out of window)
R v Smith 1983 - 'Peeping Tom' she saw Smith at the window. Fear of immediate danger.
Common Battery
Common Battery is any application of force to the body of the victim.
. Don't have to touch the body of the victim
Touching clothing of victim (R v Thomas 1985 - Skirt lifted. She jumped out of the moving car)
2. Don't touch anything at all
Indirect battery - Victim harms their self to avoid it.
R v Martian 1881 - Locked doors in theatre, turned the lights off and shouted fire - People inside
D.P.P v K (a minor) 1990 - Put acid in hairdryer - indirect battery
MR. - DIRECT or OBLIQUE INTENTION or SUBJECTIVE RECKLESSNESS
Key words used by the courts for battery - 'Trifling, injuries - broken fingernail- standard.'
Timberville v Savage 1669 - Put hand on sword and threatened the person - 'If I wasn't for the magistrates. I would give you a running through'
- Common assault charge failed because it was clear that he wasn't going to do it.
S47 ABH OAPA 1961
Level of harm necessary for s47
R v Miller 1954 - 'ABH includes hurt or injury calculated to interfere with health or comfort.'
R (a person) v Raigate 1984 - 'ABH is any sore or tenderness although it doesn't necessary have to manifest itself in a physical form.
R v Chan Fook 1994 - He believed that someone owed property/money. He asked aggressively. Locked the victim in a room. Tried to escape but fell out, suffered mental trauma.
COA said, 'mental' would include this.
COA said about Chan Fook: -
. Trial judges should not normally elaborate on ABH.
E.g. harm › injury/actual = Not so trivial as to be significant.
2. The word bodily may need elaboration.
Bodily › A person's state of mind. E.g. fear, distress, panic is not capable of being injured. However, ABH may include psychological damage supported by medical evidence.
R v Cox 1998 - They broke up a relationship. C threatened her by saying 'Go on holiday and you will die!' she suffered mental break down, stress, and migraines.
S18/20 GBH OAPA 1861
* S20 is the lesser offence. It carries 5 years imprisonment.
* S18 is the more serious offence. It carries life imprisonment.
- The difference is INTENTION
GBH occurs when the injury becomes serious. All serious injuries are GBH, therefore the key to s18 and s20 has nothing to do with different types of serious injury, but is defined on the MR. of the defendant when the offence was committed/injuries caused. Old law assumed that s20, s18, like s47 were crimes of causation. They could only be proven following the evidence of common assault or battery. However, this is now considered to be bad law. Therefore s20 and s18 no longer require proof of common assault and/or battery.
GBH
Mens Rea
Actus Reus = Serious
S20
?
Fractured Skull
S18
?
Broken leg
Both of the above are serious and are therefore GBH. To determine the section, the MR. has to be looked at and not the AR.
S20 GBH OAPA 1861
Unlawfully and maliciously wounding or inflicting any GBH upon any other person with or without any weapon faces up to 5 years imprisonment. This is now a trial either way offence.
Maliciously: R v Cunningham
Following appeal, the court said that the word malicious meant either intention or reckless (subjective)
Unlawfully - Distinguishes between legal excuse and not.
E.g. Police Officer - Lawfully › Public unlawful.
Malicious - Intention or Recklessness.
Wound - Breaking all layers of the skin to produce blood.
E.g. R v Wood 1830 - Charged with malicious wounding - broke victim's collar bone.
Found not guilty - Wrong charge › GBH but not wounding
Elenshower v C (a minor) - C shot victim with air rifle. Hit victim in the eye. Massive hemorrhage of eye, but no blood spilt. Indictment wrong, therefore found not guilty. Should be inflicting GBH, not malicious wounding.
Inflict › Old law suggested that type word 'inflict' required the injuries required the commission of an actual assault. This meant that s20 was a crime of causation similar to s47. In other words the resulting injuries were the product of an earlier assault and/or battery.
R v Clarance 1888 - GBH. Infected wife with a VD. This was clearly GBH. Charged with s20. Unlawful? Yes. Malicious? Yes - Reckless. Wound? No. Inflict? Yes.
Not Guilty - Victim not common assault and or battery
* Word inflict required common assault and battery
OAPA 1861
The law requiring this process made an s20 offence little more than an aggravated version of s47. However, Wilson 1983 concluded that it was bad law. The HOL rules that the word inflict simply required that force was violently applied to the body of the victim so that the victim suffered GBH. This gave the prosecution an enormous advantage. They could now consider 2 separate charges. The failure of one charge no longer meant the automatic failure of the alternative charge.
The difference between s47 and s20
. MR. › S47 - Intention or Subjective Recklessness to commit common assault or battery
S20 - Intention or Subjective Recklessness to do harm - R v Mowalt 1967
R v Grimshaw - Pushed glass into someone's face. Cut victim.
Intention not needed to prove harm.
2. Level of harm › s47 = ABH
S20 = GBH (If ABG proven, GBH also proven)
3. s47 requires causation
s20 does not
The recognition of these differences enables the prosecution the possibility to charge the defendant with s20 GBH, but faced with the possibility that the charge will fail, the prosecution can lower the charge to the lesser offence of s47.
861 - 1983 Wilson
The law was interpreted so as: -
MR. = Intention or Subjective Recklessness to assault or battery
+
AR = Actual injuries = Soreness
= s47
+
AR = Grievous injuries = Fractures
=s20
If s47 can not be proven, then s20 can not either. If you cant have proof for s20, then you can not prove s47.
Can prove s47 › Can prove s20
Can prove s20 › Can prove s47
Wilson 1983 ›
MR. = Intention or Subjective Recklessness to assault or battery
+
AR = Actual injuries = Soreness = s47
MR. = Intention / Recklessness to do harm
+
AR = Grievous injuries = Fractures = s20 GBH
R v Savage 1991 - Saw boyfriend chatting up another girl. Threw glass and cut her.
S20 GBH - Malicious wounding
MR. - Prove intentional recklessness to do harm. She said, 'I didn't intend to harm and wasn't reckless' Intention was to throw drink over her, but glass slipped out of hands
Technically not guilty.
R v Parmenter 1991 - The defendant was 'baby juggling'. When he caught baby it caused internal bleeding.
Inflicting GBH. MR. = Intention (incorrect) Reckless (incorrect)
R v Savage 1991 - The appeal court said that he way to go about to s47 ABH (correct) Actual injuries (correct)
R v Parmenter 1991 - the HOL said that battery - ask parent, No - wouldn't give permission. Guilty of s47
Level of harm required for GBH
Until recent years the courts have been very vague on what GBH meant. They had given little guidance other than the word grievous meant serious. However, in the last 5 years the appeal courts have accepted the Crown Court needs more guidance on what is GBH.
Chan Fook 1994 - ABH
Burstow, Ireland 1996 - Severe physiological = GBH
R v Brown & Stetton 1998 - Severely beat up father
- Wanted to be a transsexual
Caused lacerations to face - GBH
Knocked out teeth - GBH
Broke nose (sometimes ABH) - GBH
(Used both weapons and fists)
Summary for OAPA 1861
MR.
AR
Common Assault
Intention/Recklessness
Victims fear
Common Battery
Intention/Recklessness
Unlawful contact
OAPA 1861 s47 ABH
Intention/Recklessness (1 & 2)
Sore / Tender / Mind
OAPA 1861 s20 GBH
Intention to do harm/Recklessness
GBH
OAPA 1861 s18 GBH
Intention GBH
GBH
Conclusion to common assault and battery
. Common law offence with a statutory punishment
2. Statute imposes a maximum penalty of 6 months imprisonment for each separate offence
3. Offence itself may not be important. The significance may be the fact that forms the link to more serious offences.
Conclusion to OAPA 1861 s20
. Trial either way offence with a maximum penalty of 5 years
2. AR to s20 is serious harm which includes: -
* Wounding
* Inflicting
* Serious physiological harm
3. Both s20 and s47 carry the same penalty, but have different MR. and AR. They can be regarded as alternative charges to each other.
E.g. Savage and Parmenter 1991
4. S47 is judged Objectively (was the victim in fear?)
S20 GBH is entirely Subjective (was the defendant intending or recklessly regarding the victims harm?)
S18 GBH - OAPA 1861
To be able to convert a GBH charge into a murder charge if the victim dies to rules relating to MR. for s18 and Murder need to be identical, as the courts had already decided the MR. for murder was direct or oblique intention. The same rule would apply fort s18 GBH. This was confirmed in R v Bryson 1985 when it was concluded that the MR. for s18 was direct intention to do GBH or oblique intention to do GBH (GBH was a virtual certainly following the defendants actions)
Recklessness as MR. for s18
The statute clearly stated that s18 should be a crime if intention, however, in the case of Cunningham 1957 the word malicious was interpreted to mean, intention; direct or oblique or subjective recklessness.
This potentially meant that s18 could be interpreted as a reckless offence from 1957 onwards.
Eventually the courts decided that s18 GBH could be committed recklessly providing that the defendant was resisting lawful apprehension.
R v Morrison 1989 - Resisted arrest when trying to escape form the police. He escaped through a window. The police officer cut herself.
- S18 GBH - Malicious wounding.
S18 GBH - OAPA 1861
MR.: Intention AR: GBH
S18, 'unlawfully and maliciously by whatever means wound or cause GBH: -
. With intent to do harm
2. With intent to resist or prevent the lawful apprehension or detention of any person
...... Crime trial of Indictment - Crown Court only
...... Maximum of life imprisonment'
We can see from the statute that intention is required for both causing GBH and resisting arrest, therefore it appears that the difference between s20 and s18 is that s20 has the MR. of Intention or Recklessness (Subjective) to do harm, whereas s18 is only Intention to commit GBH.
Intention for s18
S18 is the most serious non-fatal offence which can be committed short of killing the victim and facing a subsequent murder charge. In R v Smith 1961 the appeal court concluded that the intention necessary to commit murder was the intention to kill or cause GBH.
Murder - Intention to Kill
Or - GBH (s18)
Or - Direct or Oblique Intention
Nedrick 1986 - Was death or GBH a virtual certainty. Did the defendant see this? Jury can conclude he did.
Tort of negligence
In the civil courts there is no filter system. The case just goes straight to the relevant court based on the amount of money involved: -
Small Claims = £1 › £5,000 (£1,000 personal injuries)
County Court = £5,000 › £50,000
High Court = £25,000 +
The PLAINTIFF is now called the CLAIMANT - (Woolf report)
In civil courts there is no legal aid given except in medical negligence cases.
Where does the test for negligence come from?
It seemed from the case: -
* Donoghue v Stephenson 1932 - The defendant went to an ice cream parlor where her friend bought her a bottle of GB. She drank some of the lager. In the bottle was a decomposed snail - the bottle was opaque - she claimed nervous shock and injuries. (Sued retailer)
(Normal under contract law - breach of contract) but she never bought it.
Can sue S for negligence (manufacturer)
Goes to HOL - Found in favor of D
Judge Lord Atkin gave the ruling: -
The neighbour test.
. You owe a duty of care to your neighbour
A neighbour is anyone who could possibly be affected by your actions
2. Duty of care to your neighbour has been breached
Measured against fellow competent person doing the same - harsh test
= driver's first lesson crashed and harmed instructor. Instructor sued and won because it was the same as a driver's competence.
3. Damage was a direct result of the breach
The result must be damage only - not former.
Donoghue v Stephenson proved 2 things: -
. Physical injuries
2. Nervous shock
Also
3. Economic loss
4. Damage to property
Grant - bought a pair of underpants, had bad effect on testicles
› Physical › Proved could have physical without mental at the same time.
Test 1 - Duty of care to your neighbour
In D v S Lord Atkin described the neighbour as anyone foreseeable affected by the defendant's actions. Since this case subsequent case law has added further tests to the neighbour principle.
Caparo v Dickman 1990 - Dickman = Accountant
Caparo = Potential buyer of a business
Dickman accounts for the firm - he accounts that the company was in good shape. Caparo decides to buy the company. Bought shares and became owner. When the accounts where checked there was a false accountancy. In reality the account was not worth much at all.
Sued Dickman - Lost on 3 tests never passed 1st one.
- Not working
- No idea Caparo was interested in buying
The neighbour to dickman would have been shareholders.
From this case 3 rules appeared: -
. Was the loss suffered foreseeable?
2. Are the parties sufficiently proximate (how close - relationship)
3. Is it FAIR, JUST, and REASONABLE for the defendant to owe a duty of care?
Following Caparo v Dickman 1990 the claimant must prove all 3 elements of a duty of care before the court will consider the next issue - a breach of the duty. If any part of the test can not be proven the case against the defendant will fail as he was not negligent.
. Was the loss suffered foreseeable?
Langley (police) v Dray 1998 - L was chasing D in a stolen car. L crashes police car and is injured. (Loss suffered was foreseeable)
Perret (passenger) v Collins (pilot) 1998 - C crashes the aircraft. P sued both C and Civil aviations authority (licensing etc) (loss suffered was foreseeable - COA agreed)
2. Parties sufficiently proximate?
Proximate = How close
= relationship to the victim (stranger › no relationship › no impact)
Bourhill v Young 1943 - motor cyclist killed in an accident with young. Bourhill goes past to see aftermath - claimed nervous shock. Sued the estate of the dead Young.
Loss = Yes
Proximity = No › not witnessed accident, not relation.
Alcock v Chief constable south York police 1992 - family member of a victim from the Hillsborough disaster
. Correct type of psychological damage
2. Relationship to victim - his wife/son/brother/sister
3. Physical distance - had to be there physically - watched TV
Proximity for physical injuries and damage to property
Stansbie v Tromam 1948 - T is a decorator for S. S tells T to lock up the house when he leaves. T doesn't and the house is burgled. Damage due to negligence - Sues T
Home office v Dorset Co. 1970 - HO has a young offenders institute on an island and negligently allows boys to escape. They stole a boat and damaged it. Boat Company sued HO. Damage due to negligence
Hayes v Harwood 1935 - Harwood, the owner of a horse leaves it unattended in a street. Children throw stones at it and it bolts. Hayes is a policeman who catches it but is injured. This was sufficiently proximate, Hayes sues Harwood. Policeman had a duty to catch the horse
Topp v London County Bus 1993 - Bus left unattended with keys in ignition. Bus was stolen and killed T. not seen that it was stole. Not proximate.
Smith v Littlewoods organization 19_7 - owned an empty cinema which went on fire by vandals. WHSmiths went on fire. Littlewoods was not to blame as it was not foreseeable.
Fair, Just, and Reasonable to impose a duty?
Tends to protect public services, E.g. Fire brigade, Police, and Ambulance
If the defendant foresaw the risk and was sufficiently proximate to the claimant he may still argue that it is unfair, unjust, and unreasonable to impose a duty of care which could result in negligence. D's arguing this are often found in the public sector.
. Statutory no duty of care
W & Others v Essex county council 1998 - Adoption service. Foster parents specify that they don't want children with history of sexual abuse. Essex fails and gives these children to the fosterers.
* Damage was foreseeable
* Was sufficient proximity
* Cant impose a duty of care to a public body
2. Legal Profession
Rondel v Worsley 1969 - W makes a mess of the case and R tries to sue. Seen as not fair, just, and reasonable to impose a duty
Saif Ali v Sidney Mitchell & Co. 1977 - Established that you cannot sue a solicitor for his work IN court.
Arthur J.S. Hall & Co. v Simons 2000 - HOL decided that previous decisions were wrong. Reversed the law to allow Barristers and Solicitors to be sued for in or out of court negligence.
3. Armed forces.
Mulcahy v MOD 1966 - On exercises his ears where perforated. Whilst on duty your employer has no duty of negligence
Rigby v Chief constable North Hampshire 1985 - Fired CS gas into a building. Meant to have fire brigade present but didn't. Building went on fire.
Was just, fair, and Reasonable so not sued?
4. Fire brigade
If they fail to do something, they may not be negligent. But if they do something negligent then they can be sued.
John Munrowe v London FB 1966 - Put out fire but didn't check joining building which caught fire
Capital & Countess PLC v Hampshire CC 1966 - FB turned off the sprinkler system which made the fire worse. This was an act and not an omission so it was fair, just, and reasonable to impose a duty of care.
5. Coastguards
OLC v Home Department 1997 - OLC (coastguards)
It is worked out on if the coastguard has caused more damage by turning up than if they had not turned up.
Test 2 - Breach of duty of care
Whether or not the defendant has breached his duty is tested objectively, in other words not what the defendant thought he was doing, but what the reasonable person with the appropriate degree of knowledge would have done. As with all objective tests this can be particularly harsh. The defendant subsequently may have had no knowledge of his potential negligent actions.
Examples of the harshness of the test: -
Vaugan v Menlove 1837 - Was no expert of building haystacks, but was warned that it was poorly ventilated and therefore caught fire and caused damage to joining cottages.
Was sued for negligence. In his mind he was innocent, but a reasonable man would have seen the danger.
Nettleship v Weston 1971 - A learner driver on her 3rd lesson crashed the car injuring the instructor. The court held she was to be judged as a reasonable competent driver and not a learner.
In ordinary cases, the duty of care is set by the reasonable person test. However, there are factors where the behavior of a reasonable person can be balanced against other factors. This is known as the STANDARD OF REASONABLENESS. The SOR can be adjusted by the following: -
* Higher - Based on the age of the claimant.
* Standard of Reasonableness - Reasonable person test.
* Lower - Age of the defendant.
These adjusting factors can relate to the claimant or the defendant, for example, a very young claimant is owed a greater duty of care than a reasonable person. On the other hand, a very young defendant owes a lower duty of care then a reasonable person.
. Age
Muilin v Richardson 1998 - Both 15 yrs old and where fencing with plastic rulers during a lesson. One broke and damaged R in the eye. He lost his sight in that eye. It was seen that it was common practice in schools, therefore not a foreseeable injury. The girls were also not instructed not to carry this out. School/teachers were liable.
Gaugh v Thome 1966 - Road traffic accident - Ran over a 13yr old - Higher level of responsibility. Therefore easier to prove.
Yachuk v Oliver Blais 1949 - 9yr old buying petrol - accident and burned himself. Higher level of reasonableness. Therefore easier to prove.
2. Disabilities of the defendant
Mansfield v Weetabix Ltd 1997 - A driver was suffering from a disease which on the day in question caused a hypoglycemic state - not known to him, he crashed into Mansfield's shop. (Evidence he would not have driven) A reasonable competent driver unaware they suffered from the condition which impaired their ability to drive.
3. Disabilities of the claimant
Paris v Stepney borough council 1951 - He could only see out of 1 eye - worked in a garage welding and was struck in his good eye. Wasn't wearing protective goggles.
High level of responsibility for 3 reasons: -
. P's eye
2. Goggles where not expensive
3. Likelihood was very high
He won the case
4. Magnitude of the risk and the cost of precautions against the risk
Paris v Stepney borough council 1951 - High risk - Eye (welding)
- Low cost - Goggles
Bolton v Stone 1951 - B was standing outside her home and was hit by a cricket ball from a nearby ground. This had only happened 6 times before in 30 yrs. The ground has a 17ft fence. It was stated that it would cost more money to create a higher fence. Also the claimant's home was higher than the ground itself. Therefore it was not negligent.
5. Practicality of protection
Bolton v Stone 1951 - Impossible to build a dome
Latimer v ACE 1952 - Rain caused flooding and slippery floor. The defendant had covered the majority of the floor with sawdust but had not enough to cover it all. L slipped on the floor and argued that they had not closed the factory. The HOL stated that they would be right except the wet patches were clearly visible and were not liable for L - duty of care was lower.
6. Influence of common practice - General practice in relevant fields
Willson v Governors of Sacred Hart Roman Catholic Primary School, Carlton 1997 - 9yr old boy hit in the eye by another pupil's coat at the end of the day.
Trial judge stated - The school should have provided supervision
Appeal stated - Most primary schools don't supervise end of day It could have easily have happened outside the school gates
The school consequently had not fallen below the standard required.
Thompson v Smith Ship repairs (N shields) 1984 - Hearing damaged by noise High cost - low
In defence its not common practice to wear them. However, they can not condone it is a correct way and it went up & was liable
7. Potential benefits from the risk - For society & potential benefits
Watt v Hertfordshire county council 1954 - Fire man attending an accident that required heavy lifting gear. Fire engine was not equipped and carrying an overweight vehicle. Jack moves and injures Watt - sues Fire brigade
CC defends saying the risk was compensated by the accident
Marshall v Osmand 1982 - Police bring a 'stolen' car to halt. A passenger is injured as a result. Don't owe to a suspected criminal as law abiding citizen.
Test 3 - Did the damage result from the breach?
For the 3rd test to damage the 1st duty of the court is to establish that damage did actually occur. There may be compelling evidence of gross negligence but miraculously no damage may have resulted. The claimant can only sue for the damage; he can't sue for the negligence.
R (a person) v Croydon health authority 1997 - R went to hospital for a routine health check. Young woman of child bearing age. The exam showed that she had a heart condition and pregnancy would make the condition worse. She was not told of this. She has a child.
Sues for: - 1. Cost of pregnancy
2. Cost of bringing up the child
3. Damage to her heart
Initially she won all 3. Hospital appealed and did not want to pay 1 & 2 because R was happy that she was pregnant and had a child. COA ruled in favor of the hospital
Does causation exist? - 'But for test'
Defendants' action ---------------------- Claimants loss
Chain of causation
A situation could exist where negligence is clearly evident and damage is evident. However, there may be no causation between the two events. Although this is unlikely the court must apply the 'BUT FOR TEST' to establish the negligence and damage are in fact linked.
'But for' test
Barnett v Chelsea & Kensington hospital 1968 - Watchman at night drinking his tea becomes ill and goes to hospital. Hospital refuses to see him and later on he dies from arsenic poisoning (found in his tea). Hospital found to be exceedingly negligent but it did not contribute to the damage.
Hotson v East Berks health authority 1987 - Young boy goes to hospital with knee injury. Hospital can't diagnose the injury and sends him home. 5 days later he goes back. Find things wrong. Sued for deformities that he is suffering from. Medical experts said there was a 25% chance that the deformities were as result of the 5 days. He was awarded damages for his injuries (only 25% of them) hospital appealed but did not succeed. Hospital appealed to the HOL and was successful.
Intervening acts
* Novus Actus Interveniens
In both criminal and civil courts the defendant's guilt or liability is proven through the chain of causation. The defendant's actions clearly created the defendants criminal liability. Whilst the claimant tries to prove liability, the defendant will attempt to prove that an intervening act has broken the chain. Case law suggests common legal arguments used to justify the break in the chain.
Intervening acts
. Natural interventions
R v White 1910 - White poisoned his mother. She died from an unrelated heart attack. White blamed an 'ACT OF GOD'
2. 3rd party intervention - Police
R v Pagett 1983 - In an armed siege. Uses his girlfriend as a body shield and police shoot her
Pagett fails
3. Negligence by the victim
R v Holland 1841 - Damaged victims hand. Hospital advises that the hand is removed. Victims hand deteriorates and victim dies
Holland fails
R v Blaue 1975 - B stabs a female Jehovah witness. Stab was not too bad. She refuses a blood transfusion and dies.
"You take your victim as you find him"
"The whole person that is their physical, moral, religious state ..."
4. Medical intervention
R v Jordan 1956 - Stabbed a victim (minor stab). Victim dies 8 days later in hospital. Hospital gave the victim allergic drugs & put on a drip that water logged the lungs and died.
• Treatment was 'PALPABLY WRONG'
R v Smith 1959 - S in the army. A fight broke out and someone gets stabbed. Medical auditory called. They drop the victim a few times causing head injuries. Not fully trained medical staff and diagnosed with being drunk, not concussion. Dr eventually attends but victim dies. S is guilty
S was an 'OPERATING & SUBSTANTIAL' cause of death
R v Cheshire 1991 - Shot victim in leg and stomach. At hospital victim gets medical problems and dies. Convicted of murder and appealed saying, 'treatment of hospital was palpably wrong' it was only wrong so guilty.
R v Mellor 1996 - Assaulted old lady and broke her ribs and some facial bones. She dies 2 days later in hospital. He blamed the hospital. Gave her oxygen badly administered
Treatment was poor, but not wrong
5. Civil intervention
Scott v Shepherd 1773 - SH claimed intervention by 3rd party. SH threw a firework in a market hall. Landed on a stall. Stall owner threw it away and so on. It exploded and hit SC in the eye. SH claimed he did not throw it at SC. SH was liable
Remoteness of damage
If any damage results from the defendants actions the defendant will only be liable for foreseeable damage. If a reasonable person could not have foresaw the possibility of the resulting damage the defendant's civil liability would ceased at that point.
The Wagon Mound 1961 - Owner of a ship was being sued for causing a major fire in Sydney harbor, Australia. Said they were not liable because damage was too remote. Ship involved in oil loading. Oil leaked in to water (small amount) and floated around harbor. Other side of harbor was ship repairs and the oil made the slipway unusable. It then traveled again. A few days later it traveled to a ship being welded and catches fire and burns down a wooden Warf. (Oil doesn't normally burn)
Pay compensation for damage to slipway
Not foreseeable for fire so no liability for it.
The Wagon Mound 1967 - fire damage to other ship in harbor. Other ship gave evidence that the oil could burn. Had to pay damages as it was foreseeable.
The type of damage
The defendant is only responsible for the general type of damage caused by his negligence. Likewise the claimant doesn't need to prove that the defendant foresaw the exact actual damage that occurred. In the Wagon Mound 2 case, for example the claimant proved that the defendant could have foreseen the damage, but not the specific damage to the claimant's ship.
Hughes v Lord Advocate (Post Office) (1968) Post Office working down a man hole in the street. Leave hole with shelter covering it and a paraffin lamp to mark the spot. Shelter made of canvas. An 8yr old boy playing in the shelter knocks the lamp down the hole and explodes.
H sues post office for burns.
Post office did not foresee the explosion, but did foresee fire so was liable.
Doughty v Turner manufacturing (1964) Factory had a tank full of hot liquid. Had a cover over it. Cover fell in tank and contents bubbled over and injured D. chemical reaction caused the bubbling over.
Courts said that splashing was foreseeable but a chemical reaction was not.
Margereson v Roberts (1996) M had rare lung disease caused by Roberts asbestos factory. Did not foresee that 'that' disease, but did foresee lung damage.
Extent of the damage
Under these rules: -
. Defendant must foresee damage
2. Defendant only needs to foresee the general type of damage
3. Defendant does not need to foresee the extent of the damage
This follows on from the criminal law: "You take your victim as you find him."
Under normal circumstances, the negligence may have done very little damage but if the claimant suffers extreme damage because of his personal circumstances the defendant can be held responsible for the full extent of the damage.
Smith v Leech Brain & Co. (1962) LB&C dealt in melting metals. S is burnt on lip when hit by molten metals and was a result of negligence. S had a medical condition which meant his lip was in a pre-cancerous state. Burns set cancer in motion and S dies of cancer.
LB&C were liable.
Dodd properties v Canterbury CC (1980) CC negligently damaged Dodds property and refused to admit liability. Just before case goes to court they admit liability but do not admit liability for all of it.
Then goes to court and wins.
CC has to pay for damage and added damage caused by not repairing it straight away.
The duty of care in negligence cases
In all civil damage claims the burden of proof initially lies with the claimant. The claimant must convince the judge on the 'Balance of probability' that the defendant was negligent. If at any stage the claimant fails to prove the negligence of the defendant the defendant would not be held liable. Given that the original 3 steps of Donaghue and Stephenson have now been sub-divided into further steps (possibly 15 steps) proving negligence could be an uphill struggle for the claimant.
However, in rare and exceptional cases the burden of proof can shift over to the defendant. This is due to the concept of 'RES IPSA LOQUITUR'
In these cases of gross negligence the claimant will make a submission to the judge that this case is a case of Res Ipsa Loquitur. If on the evidence presented, the judge accepts the fact that there is no obvious explanation other than the defendant's negligence then the burden of proof in the case is reversed. The defendant now has to prove on the 'balance of probability' that he was not negligent.
The claimant proving Res Ipsa Loquitur
Before the judge will accept the submission, 2 conditions must be met: -
. The events were under the control of the defendant, or the defendants employees.
2. There is no direct evidence of negligence.
Under the control of the defendant
Gee v Metro railway (1873)
Easson v LNE (1944) fell out of the doors of a train. Both claimed Res Ipsa Loquitur because of faulty door.
In G fell out almost immediately
In E it happened a few miles down the track.
In G it was in control of defendant
In E it was not.
No direct evidence of negligence
Scott v London & ST Katherine's Dock (1865) S in dock on pavement and wakes up in hospital. Large bags of sugar had hit him on the head.
Made a submission and was under control of defendant and no evidence of negligence.
Submission was accepted
Mahon v Osborne (1939) M has been operated on and sometime later taken seriously ill. Found swabs inside him.
Barkway v South Wales Transport (1950) B on a bus where the tyre blew out and bus crashed. Fault to tyre could not have been discovered before it blew out. Bus Company was aware of it happening. Drivers were expected to report anything they hit that would weaken the tyres. There was 'other evidence' so reports had to be seen.
No submission allowed.
The defendant rebutting Res Ipsa Loquitur
The claimant has 2 opportunities to have the submission rebutted. These are: -
. The defendant claims to have taken reasonable care
2. The defendant supplied an alternative explanation
The defendant took reasonable care
Ward v Tesco (1976) W slipped on yoghurt and had a bad fall. Tesco said they took reasonable care by a person standing with the spillage whilst another got cleaning equipment.
However, on the day it did not happen so Tesco failed on rebuttal.
The defendant supplied and alternative explanation
NGU Chin Piu v Lee Chuen Tat (1981) Coach goes through a central reservation and hits a bus. Families of NGU are suing for negligence.
Bus Company said there was evidence which was an accident that was not the fault of the bus driver
Therefore Lee CT succeeded on rebutting
Contributory negligence
Created by statue: Contributory negligence act
If contribution to negligence can be proven, the claimant's final award will be reduced by his percentage contribution to the damage.
Baker v Willouehby (1961) B driving negligently knocks over W but road had 200 yards of clear visibility. W was also negligent to see B coming
Split damages in half as W has contributed 50% to his injuries.
Froom v Butcher (1976) F not wearing seatbelt reduced his damages by 25% at least and if it could have been proved that by wearing his seatbelt no injuries would be caused. Even if wearing a seatbelt you would have been injured but not wear a seatbelt, damages would be reduced by 15%
Revill v Newberry (1991) N sleeping in garden shed had a shotgun with him. R broke into the shed and was shot by N. N found negligent but said that R had contributed to injuries.
Other aids to negligence
So far we have considered criminal and civil liability, the criminal liability for non-fatal offences being determined by the appropriate MR. and AR. The civil liability being determined by various rules of negligence. These 2 processes take place in completely different courts with different procedures and different burdens of proof.
* Criminal court - "Guilty beyond reasonable doubt"
* Civil court - "Liable on the balance of probability"
As the burden of proof in the criminal courts is much higher than in the civil courts the criminal evidence act 1968 allows certain convictions, E.g. s47 ABH to be used as evidence in a civil court relating to a claim for damages.
The process of proving negligence summary
When answering a question on negligence you need to go through the following steps: the major steps are always applicable. The sub-steps should only be discussed when they are directly applicable to the scenario.
. Duty of care to your neighbour
* Was the loss foreseeable?
* Was there sufficient proximity?
* Is it fair, just, and reasonable to impose liability?
2. Beach of duty of care (standard of reasonableness)
* Age of the defendant (and other characteristics of the defendant)
* Characteristics of claimant (age, disabilities)
* Magnitude of the risk
* Cost of prevention
* Practicality (can it be done)
* Common practice (what do other people do)
* Potential benefits from risk
3. Damage was a result of the breach
* Has to be damage (person, property, or both)
* 'But for' test
* Remoteness of damage
* Type of damage (what you expect)
* Extent of damage
Finally if it is present in the scenario you may also want to discuss: -
4. Res Ipsa Loquitur
5. Contributory negligence
Age in criminal liability
There are 4 ages where criminal liability is concerned (this is where the CPS deals with you)
When you are 21 you are fully liable in every respect
Adult 21+ full liabilities
Children 10-13 Doli Incapax
Children 0-10 No criminal liability
Children 10-13
Old law from the 19th century gave the presumption that children in this age group where Doli Incapax 'incapable of evil/mens rea' the prosecution had to convince that the child was capable.
› If not rebutted of Doli Incapax then trial not going on
Curry v D.P.P (1995) Curry was 13 and a repeated offender of criminal damage. Knew C was not Doli Incapax so never tried for doli incapax.
Appealed › Ignored doli incapax - agreed
HOL › couldn't help, transferred case
Parliament › Doli incapax failed (1988)
Instead of rebuttal, the child has to prove Doli Incapax
Appeal not on charge - Prosecutors
D.P.P - Children grow up more quickly today
* Doli Incapax was illogical, either are or not, cant be both
* Weren't against cause of natural justice
* HOL didn't want to deal with it - Keep Doli Incapax
* Any change in law could be committed and actual law couldn't be retrospective
* COA hadn't power to do so. Rules set by HOL
* Matter for parliament
The defence of Doli Incapax
M (a minor) v Runedlles (1984) Appeal case
13 year old hit fellow pupil ion eye with bottle
Prosecuted for malicious wounding
Doli Incapax hadn't been applied properly
COA said how it should work: -
Runnickles guidelines: -
. Childs age - 10 years old more likely to be Doli Incapax
2. Seriousness of offence - More serious, less likely to be Doli Incapax
3. Attempts to steal crime - Not Doli Incapax
4. Evidence of planning
5. Intelligence of child
Deciding the appropriate sentence
The process in both magistrates and crown courts are basically the same except: -
. Magistrates powers are limited (6 months and/or a £5.000 fine)
Judges powers are unlimited (max life)
2. Magistrates are volunteers and have less legal training which means they relay heavily on the clerk at arriving at their sentence
3. In reality 95% of all crimes are dealt with by the Magistrates court and so Magistrates pass far more sentences than judges
The first factor to consider is the so called tariff. This developed as the common law system but is mainly supported by statute. I.e. Common battery has statute punishment by the 1988 CJ Act. The tariff except in the cases of murder only specifies the max penalty. This means that whoever is sentencing must consider the full range of sentences before arriving at the sentence for the defendant. Under the current system there are 4 sentences available (least to most)
. Miscellaneous
2. Fines
3. Community Sentences
4. Custodial Sentences
In normal circumstances the starting point for any sentence is a fine (2) although for more serious crimes the starting point may be custodial (4)
Sanctions
In module 3 we have considered: -
. Criminal Liability for non fatal offences against the person
2. Civil liability for personal injuries and damage to property (negligence)
The final requirement of module 3 is to consider the outcome of these liabilities presuming liability has been proven. We need to consider 2 things: -
. Criminal Sentencing
2. Remedies to tort in particular civil damages
Criminal Sentences
The aim of criminal sentencing: -
Regardless of the sentence the criminal justice system assumes that any sentence attempts to achieve a combination of 4 or 5 objectives. The importance of these objectives is partly to do with the particular crime involved and partly the objectives of the current government. Therefore the emphasis of these aims today would not be the same as 10 years ago.
The 5 aims are: -
. Deterrence - To deter people
Although deterrence features as one of the primary aim of any sentence research into the subject question the effectiveness of sentencing. When questioned members of the public admit the fear of being caught is the greatest deterrent, having been caught people accept that the sentence is inevitable. Therefore it can be argued that additional policing may be a far more effective deterrent to crime than a stiffer sentence.
2. Protection
Cleary a prison sentence for a serious offender protects society at large during the course of the sentence; however, other sentences offer diminishing levels of protection. A fine for example may actively encourage crime in order to pay the fine.
3. Rehabilitation
Ideally the sentence should help the offender to avoid re offending in the future. In this respect the system appears to fail. On average the more serious the sentence, the greater the chance of re offending. For example, the re offending rate following a prison sentence appears to be directly related to the length of that sentence. E.g. a person sentenced to 4 years is far more likely to re offend than a person convicted for 2 years.
4. Retribution
In arriving at his sentence the judge is allowed to consider the defendants previous convictions. Clearly a repeated offender requires a more serious punishment than a first time offender. A recent development has been the victim's impact statement. In this the victim explains to the judge how the crime has affected their life. If he sop wishes the judge can use this statement in 'helping' him to arrive at his sentence.
5. Denunciation
English law is unusual in having a single offence of murder and a single punishment for murder. English law states that in all circumstances murder is unacceptable and is treated equally severely. This is the aim of denunciation. By comparison in many American states the law recognises different degree of murder associated different degrees of blame.
Pre sentencing procedure
Once the defendant has been found guilty as charged, 4 steps are normally taken before the sentence is passed. In the Crown Court this usually means that the sentence will be postponed to a later date.
. Plea in Mitigation (Barrister) - The prosecution cannot question this
2. Antecedents (CPS) - Prosecution argue previous record, family background. May also speak in favour with defendant - plea bargaining
3. Pre-Sentencing Report - Social workers etc... Reports on past offences etc.
4. Victims Impact Statement
Fines
Of all sentences available, fines are by far the most popular. The magistrates' ability to fine up to £5,000 is more than sufficient for the majority of matters before them. In theory the fines levied by courts exceed the test of running it - profit. The rate of re offenders is very high- poor deterrent. Fines are based on the ability to pay. Non payment of fines is a regular occurrence and costs become higher due to chasing up fines. New court appearances and higher charges (prison for 7 days)
Community Sentences
The most popular is probation. Minimum age is 16. It is for at least 6 months but no more than 3 years. Certain requirements must be met. (attending course), specify where you live, hospital drug rehabilitation, day centre attendance, for up to 60 days they can send offenders to activity centre.
Pros and Cons
+ A bit nicer than going to prison
- Level of re-offending is still high
- Level of offending whilst on probation is high
- Probation is very labour intensive - Not enough due to loss
- Protection can be taken off a person and then sent to prison if they re-offend
Community Service Order - Form of Community sentence
Convicted of an offence that is imprisonable. At least 40 hours and no longer then 240 hours. Over 16 years of age. Must consent to the order
- Need 1 to 1 attention
- It usually never happens
Curfew orders
This is a form of community sentence. It is a combination of probation and community service. It has a minimum of 12 months and maximum of 3 years. Community service is a minimum of 40 hours and maximum of 240 hours.
Prison
Minimum age is 21 before you can serve full prison sentences. Maximum prison sentence is defined by tariff. If there is no specified maximum sentence it is 2 years (powers of the criminal court act 1973) Serve a sentence in 2 ways: -
. A consecutive sentence for more than 1 crime
2. A concurrent sentence (1/2 sentence - serving all sentence at one) he will only serve the longest of the sentences
No such thing as parole - it is now early release - given a lot more freedom on early release except conviction murders. Judge do not go below 15 years for life sentences - would expect to serve the sentence and then it goes to the people board who decide to release you, you are so on licence which tags down conditions of release and lasts for the rest of your life, and it can be revoked at any time.
Sentence of less than 1 year
Auto release 1/2 ways through - if you re-offend you will serve the rest of the sentence and the new offence sentence
Sentences of 1 to 4 years
Serve 50% of the sentence then released. Then issued with a licence which lasts 3/4 of sentence during the last 3/4 the sentence can be revoked at a level 3 crime (fine offences) if the person re-offends it lasts 1/4 back 2 prison.
Sentences of 4 years or more
Serve between 1/2 and 2/3 of the sentence between these fractions it is the discretion of the parole board. A licence will be given that can be revoked. He has got to be released at 2/3. In the last 1/3 he must not commit an imprisonable offence.
Suspended Prison Sentence
Before this is considered the judge must have thought about a prison sentence up to 2 years. He can suspend it for 1 year but no more than 2. Suspension is broken as soon as any criminal offence is committed. They can send you to prison for anything up to the original sentence. They can also sentence you to the remainder of the sentence.
Hospital orders
Crown and Magistrates can impose this (mental) health act 1973. It last for 6 months. Of given one by the Crown court (restriction order) this can be revoked by the home secretary (mental health tribunal also have power)
Miscellaneous sentences
For serious offences the courts normally start at a fine, but move up if a fine is considered ineffective. For minor offences the courts starts at fines but may move down to miscellaneous if fines are considered to serve. With miscellaneous you are guilty of the criminal offence but the court considers punishment to be inappropriate or very little.
. Absolute discharge
Discharge from the court for criminal record
2. Conditional Discharge
Require any conditions which are reasonable of you, if this is rejected, higher sentences will be imposed (fines or community sentence)
3. Binding over to be of good behaviour
Justice of Peace Act 1961 - Normally 12 months, asks you to deposit money at court and you get it back if no more crimes are committed.
4. Deferred Sentence
Up to 6 months, instead of making at present the sentence will be made in 6 months. If you behave after 6 months you get an absolute discharge.
5. Compensation Orders
Compensate the victim. Magistrates can order up to £2,000 compensation. Id this is paid an absolute discharge will be given.
Sentencing young offenders
Up to the age of 10, children have no criminal liability
From the age of 10-17, Juvenile courts -
Has to be on woman on the bench
Magistrates are specially trained
Children are meant to be represented buy an adult it is a closed court - No spectators
Sentences are not the same as adults
Detained by her majesties pleasure
Shouldn't be said as a specific time
R v Thompson & Venables - 8 year detention, in 1994 their sentence was increased to 15 years. They should get the adult sentence but no more - conclusion.
Appealed in 1997 - Sentence should have right to early release.
. A Juvenile charged with murder must be charged in the Crown Court
2. A juveniles charged with an offence for which an adult could be sentenced for 14+ years maybe tried in the Crown court to the seriousness of the crime
3. A juvenile who commits an offence with an adult can be tried in the magistrate's court.
Sentences Available
Unlike adults, the courts have limited ability to send young offenders to prison.
The main sentences available include: -
. Detain at her majesties pleasure - young offenders centre
2. Detention and training order - 12 to 17 year olds and lasts between 4 and 24 months
3. Community Sentence - high level of supervision
4. Supervision Order - up to 5 years
5. Attendance centre order - for under 16's between 12 and 24 hours. 16 to 21 its 36 hours
6. Curfew orders - up to 6 months for 16- and up to 3 years for 16+
7. Reparation Orders - just pay for what you have done. Payment to victim, letter of apology, or goes to repair the damage.
Remedies to tort
Civil Remedies
For the tort of negligence related to personal injuries and loss of personal property the civil courts deal with 2 main remedies: -
. Damages
2. Injunctions (much lesser extent)
Types of damages
Non compensatory damages - Not important in defamation cases - Not in relation to the victim. Not based on compensation to victim.
. Compensatory damages - Courts award lowest denomination - Lowest (£) I.e. 1p
2. Nominal Damages - Not real damages done, damages given in small amount
3. Exemplary damages - Awarded damages for in extent of actual damage to victim
Compensatory Damages
A victim who successfully proves negligence will primarily be seeking damages from the defendant. The calculation of these damages is extremely complicated. It involves considering different types of loss. For example, Pain, suffering, loss of earnings etc... it includes considering different time frames for example, the loss of earnings due to disability.
To arrive at a damages figure the cost relay heavily upon the experiences of previous courts. To a certain extent the value of the loss of a limb can be assessed by a tariff, but issues of pain and suffering are down to individual cases.
The process
. Mitigation
The civil courts will assume the claimant did every thing in their power to limit the impact of the defendant's negligence, typically seeking medical attention as soon as possible and completing the course of treatment.
E had sterilising treatment performed by EAH - became pregnant and sued for cost and experience of unwanted pregnancy.
EAH claimed mitigation - could have gone and had abortion
Appeal said not reasonable for E to have a termination.
2. Financial stage - Pecuniary stage
* Pre-trial expenses - medical & loss of earnings/property
* Expenses incurred by another - Family - carer
Examples: -
Donnelly v Joyce 1972 D child's mother incurred expenses for looking after child.
Question - do you claim yourself or as well as
Answer - COA put as part of same claim
Hunt v Smevers 1994 H girlfriend a passenger on bike - after accident H went to live with boyfriend S (became carer) 3 years later married. Put claim of £75,000 against S for him - incurred by another.
Claiming against defendant for the care as the claim was appealed - HOL ridiculously - carer was also defendant cannot claim fort the cost of care
Loss of earnings
Actual loss of earnings up to the point of hearing is based on the real figures. Future loss of earnings requires a calculation on set figures which courts must apply.
Immunity = Net Annual X 3% Multi X Interest X 60%
For life Loss Financial Charge multiplier
› Future loss of earnings
Doyle v Wallace 1998 the defendant was injured in a car accident - Couldn't do chosen work (drama teacher) Now in clerical work
Estimated a 50% chance of achieving goal job. Assumed earnings of 1/2 between clerical and drama - annual earnings.
Non Pecuniary damages
. Primary injuries - Tariff (look in book)
2. Pain and Suffering - Pain in future
(Extent of injuries/length of time in supervision/increased disability in future) › If a coma at any stage it is impossible to claim for pain & suffering as can't feel it (but can claim for loss of earnings)
3. Loss of amenity - won't be able to do because of injuries - Grandchildren etc... Life expectancy may be reduced through injuries.
Having calculated the pecuniary and non-pecuniary loss of the claimant the court awards a sum of money based on the claimant's lifetime.
This has the advantage that if the claimant's circumstances change, the damages cannot be reassessed. E.g. at the time the damages where set, the court believed that the claimant may need a walking stick in later life due to the injuries sustained. In 10 years time after damages the claimant ends up in a wheel chair, the damages cannot be reassessed.
Injunctions
This is described as an equitable remedy. It is awarded by the court when it is just and convenient to do because damages are considered inadequate. In the normal cause of events injunctions will not be considered until the court is satisfied that all aspects of damages have been dealt with.
Mandatory injunctions: -
Redland brick Ltd v Morris 1970 M's home slipped into the hole made by RB. M claimed negligence and wins. Claimed for damages to fix his home. Gets an injunction to stop it again.
RB appeals saying that propping up his land would cost more than the land was worth.
Went to HOL: -
. Mandatory injunction should only be awarded where damages were not adequate to compensate the claimant.
2. Where the defendant had acted reasonably but wrongly an injunction may not be granted if the cost of the injunction was unrealistic.
3. If the defendant acted unreasonably and in particular if the defendant tried to gain an advantage over the claimant or court the cost of carrying out the injunction would not be taken I to account.
Redland Brick Ltd won.
Interlocutory Injunctions
These are more difficult to obtain as they attempt to stop action before any damage has occurred. The claimant must prove to the court that there is a serious risk that damage will occur without the injunction. On the other hand, if the defendant can prove that no damage would have occurred the court may award damages against the claimant.
Other sources of compensation
So far we have assumed that a victim of crime or negligence may be able to claim compensation through the civil courts. In practice this may be impossible or impractical.
. The person(s) responsible for the negligence may be unknown. E.g. 'hit and run' driver
2. The person(s) may be known but it is difficult to identify where the blame lies › Herald of free enterprise
3. The defendant may be liable but in no financial position to pay damages if they are awarded against him.
4. No legal aid for personal injuries except in medical negligence. Conditional fees known as 'No win, No fee' are only taken on when there is a very high likelihood that the claimant will succeed.
Other Sources of compensation
. State funded sources - Industrial injuries scheme are paid out of tax payer's money. Used in work cases. No payment is received for the first 15 weeks. 1 off payment for long term.
2. Criminal Injuries Compensation Board (CICB) - Ranges from £1,000 to £250,000. claim up to an additional £30,000 for loss of earnings
3. Insurance Companies - At work - Employers Liability Act 1969
Roads - Road Traffic Act 1988
Motor Insurance bureau
4. Following a highly publicised accident, funds are set up so that the public can contribute. Sometimes these funds can amount to 100's and 1000's of pounds resulting in significant payments for individual victims.
End of Module 3
Started on 11th September 2001
Finished on 18th December 2001
Robert Cook
Module 3
P. 1
