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To is taking an unjustified risk even

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To be
defined a crime, the events usually involve two elements: the actus reus
and mens rea. The ‘actus reus’ is the act which forms part of a
criminal offence. It is the physical aspect of a crime or the wrongful act. For
the accused to be held responsible for their actions, it must be voluntary and hey
must have some control over their actions. The specific actus reus is included
in the definition of the offence. This could refer to just the act, or also the
consequence for example, assault or battery resulting in actual bodily harm.
The act must cause the result in the definition. The ‘mens rea’ is the
mental element of an offence, it literally means guilty mind. Most offences
require there be mens rea to be present such as intention to kill. There are
two categories of mens rea: intention and recklessness.

 

Intention – For some
offences, such as murder, or causing grievous bodily harm with intent, the
intention is required. In R v Mohan (1976), it was said that this is ‘a
decision to bring about, as far as it lies within the accused’s power, (a
specific circumstance) no matter whether the accused desired that consequence
of his act or not’ (red book). The two offences in section 18 and 20 of
the Offences Against the Person Act 1861 require a similar actus reus, but it’s
the mens rea in the definition makes the offences different. Intention is the
highest level of mens rea. When a person brings about the consequence of their
action they desired, they’re said to have direct intent. Oblique intent is
where the defendant has a desired outcome in mind but their action causes a
different consequence. This is seen in Hancock and Shankland (1986) where the
defendants want to scare a colleague into not breaking strike. They pushed two
bricks off a bridge onto the road he travels on to work, by taxi. They
succeeded at frightening their colleague, however they also killed the taxi
driver.

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Recklessness-
Recklessness
is a lower level of mens rea than intention. Recklessness is taking an unjustified
risk even if the defendant realised the consequences. There are two types of
recklessness: objective and subjective. Subjective recklessness is where a
person does not set out to bring about a result, but acknowledges that it could
occur from a course of action, and continues with the action anyway. This kind
of recklessness applies to the offences of assault e.g. assault causing actual bodily
harm and malicious wounding. For example, in R v Cunningham (1957), where
‘Cunningham ripped a gas meter from a wall to steal money from it. Gas leaked
from where the meter had been and made a woman living there ill’ (red book) He
could only be guilty if he knew that gas escaping could be harmful to the
residents.

 

Objective
recklessness is where a defendant does not realise that there is a risk, but an
ordinary person – defined as ‘an ordinary prudent individual’ in MPC v
Caldwell, (1981) – would have done so, recklessness is objective. This could
make a defendant responsible for an offence even if that particular person did
not realise there was a potential risk. This used to apply to criminal damage,
however this was discounted after the case of R V G and R (2003), where some
boys who set fire to papers and bins were found not to have foreseen the
possibility of this fire spreading to the buildings and damaging them.

 

Omission- An omission
is the failure to do something which should have been done. For some crimes the
omission must also bring about a consequence. The omission must be voluntary on
the part of the accused, if the defendant cannot take responsibility for their
actions, they have not committed the actus reus e.g. losing control of a vehicle
because of a heart attack. However if the defendant knew of an existing health
problem that could lead to him losing control of the vehicle, it would be
considered voluntary, like in Broome v Perkins (1987). At common law there are
five situations where there is a duty to act and a failure to act creates
liability. There is a duty to act if you are under a contract especially of
employment, because of a relationship e.g. mother and child, you have
voluntarily undertaken e.g. care of an elderly family member, if you’ve created
a dangerous situation and if you have an official position e.g. police officer.
For example in Dytham (1979), ‘a police officer witnessed a violent attack on
the victim, but took now steps to intervene, instead he drove away from the
scene’ (Martin, 2014). The police
officer was found guilty of unreasonable failure to act, when it is his duty.

 

De minimus
Rule- The de minimus rule is that the actions of the accused are only a
minimal part of the result. If the defendant can prove that his actions were
only a minimal part of the end consequence, he will not have caused the result
and cannot be convicted.  In R v Pagett (1993), ‘Pagett fired at the
police, who responded by firing back at Pagett. He held his girlfriend in front
of him as a shield’ (red book). If there is another act that is the
greatest cause of the result then the defendant that carried out the original
act will not be legally responsible. If it wasn’t for Pagett using his
girlfriend as a shield she would not have been shot at. Therefore, Pagett will
be convicted for her murder, not the police officer.

 

Thin Skull
Rule- The defendant must ‘take the victim as they find him’, this is known as
the thin skull rule. This means that if the damage is worse for the particular
victim because of the health of the victim e.g. having brittle bones. The
defendant is liable to compensate for the actual damage suffered even if
someone else would have been stronger and therefore less seriously injured.
 This is seen in Smith v Leech Brain & Co (1962), where ‘a workman was
scalded on the lip when molten metal splashed him due to his employer’s
negligence. The burn was only minor but it started a cancer which was dormant.
His death from cancer which had been dormant. His death from cancer was not
foreseeable but the injury caused by the burn was, and the cancer was caused by
the injury’ (red book). The employer was liable based on the fact that
the victim had to be taken as he actually was, not as another victim might have
been.

 

Causation- The
causation is the link between a defendant’s act and the consequence, and it
needs to be established for many offences. This can be clearly seen in murder,
where the defendant must have done something which has caused death. So if
their action does not bring about death, then they cannot be charged with
murder. When considering whether or not the accused’s act brought about the
consequence, there are two issues to look at: causation in fact and causation
in law.

 

Causation in
fact relates to whether the actions of the defendant were the cause of the
consequence. The ‘but for’ test is used to ask whether the victim would have
suffered the injury ‘but for’ the actions of the defendant.  In R v Pagett
(1993), the girlfriend got hit by the bullets that the police shot and she
died. Even though it was the police’s bullets that killed her, we can use the
‘but for’ test to prove that Pagett is actually the one guilty of her murder.
But for his actions, the victim would not have died. Causation in law whether or
not the consequence was caused by the defendant’s actions or whether the
defendant made a major contribution to it. For this, the defendant’s actions do
not need to be the sole or even main cause of the result.

 

The chain of
causation can be broken by a third party, the victim’s own act or a natural,
unpredictable event. In order to break the chain of causation, making the
defendant not guilty of the consequence, the intervening act must be
sufficiently independent of the defendant’s conduct and sufficiently serious.
 In the case of Rafferty (2007), the victim’s death was caused by the
deliberate independent act of a third party, then the defendant did not cause
the death even though he earlier took part in an assault on the victim.
However, in R v Smith (1959), ‘Smith, a soldier, stabbed another soldier while
posted in Germany. The victim was dropped twice by other people on the way to
hospital, when there he received poor medical treatment’ (red book).  There was
two factors between the action and the consequence that could have affected the
result. However the court held that the events between, were not enough to
substantial enough to break the chain of causation.

 

Strict
Liability Offences – It is hard to prove the mens rea of
offences such as parking and speeding offences. These are called strict
liability offences and they don’t require the mens rea, the prosecution only
has to prove the defendant voluntarily committed the act to find them guilty.
Strict liability is very rare in common law.

 

Using strict
liability in criminal law is controversial as it means a person may be liable
where they’re not at fault or have taken measures to ensure they are in line
with the law. For example, in the case of Gammon Ltd v Attorney-General
of Hong Kong 1985, the defendant was a builder who had ‘deviated from plans
in the construction of a building. It was an offence to deviate from the plans
in a substantial way. The appellant accepted he had deviated from the plans but
he believed that the deviation was only minor rather than substantial’ (Gammon (Hong Kong) Ltd v Attorney-General of
Hong Kong, n.d.).
He didn’t have the mens rea, however it was a strict liability offence and the
actus reus alone was enough convict him.

 

Applying the
law to Connor and Dave’s Case

Both Dave
and Connor ‘feel this is unacceptable and decide to put in his place’, this is
the mens rea for the offences. They have both agreed on what to do, showing
they had intent to threaten him. However, Dave and Connor commit different
actus reus in terms of what they did and also the seriousness of what they did.
Connor committed a less serious offence, as he ‘threatened Mark’ and tells
him that if he doesn’t stop ‘he’ll regret it’. This is assault as he is causing
immediate fear within the victim. Dave also threatens Mark, however he commits
an act far more serious. Mark ‘vigorously’ punched Mark in the face, which
resulted in him sustaining injuries. Mark had an underlying medical condition
that neither Mark nor Connor knew about, which caused him to sustain injuries
that are ‘worse than an ordinary person’ would have. Although Dave did not
realise how much damage he could cause, this would not stand up as defence due
to the thin skull rule. As previously mentioned, the thin skull rule is that
you should take the victim as you find them. This means that Dave is likely to
have a bigger sentence due to the severity of the issues, ‘broken nose and
severe bruising’, and not having a justified defence.

 

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