criminal law
By Chan-King
Dec 27, 2014
1011 Words
2014/10/3
Criminal Law
Hanif Mughal
(麥 嘉 豪 )
Adjunct Associate Professor
(
兼任教授)
Barrister-at-law
(
大律師 )
DLS 2
BRIEF - Lecture 1
(A).General Introduction
(B). What is a crime?
(C). Principles of Criminal Liability
Chapters 1, 2 and 4 of the Workbook
and some additional information
2
(A) General Introduction
1.General Principles.
2. Law regulates conduct in society.
3. Division of Law into civil and criminal law.
4. Civil Law – disputes between individuals.
3
1
2014/10/3
5. Criminal Law
- disputes between the state and individuals.
- it is about proscriptive (prohibited) and
prescriptive (preferred) rules
of conduct.
6. Prosecution by the State of bad conduct.
4
State is generic term.
(B) What is a Crime?
1. Morality and Illegality;
2. A crime is an injury against society.
Harmful conduct against societal interests.
3. Essence is PUNISHMENT
5
4. Criminal Law acts as an instrument of
and aims to
SOCIAL CONTROL
protect interests.
5. By achieving the FUNCTIONS
of
criminal law
(detection, investigation,
prosecution, due process, and sentencing)
6
2
2014/10/3
6. Crimes are called offences.
- created by statute or common law
- summary offences;
- indictable offences;
- offences triable either way;
- arrestable and non-arrestable offences.
7
Basic elements of a crime
Actus Reus
-
guilty act
Mens Rea
-
guilty mind
8
7. Ancient Principles of Criminal Law:
- Nullum Crimen Sine Poena;
- Nulla Poena Sine Lege;
- Actus Non Facit Reum Nisi Men Sit Rea;
9
- Lex Prospicit Non Respicit.
3
2014/10/3
8. Examples of Crimes:
- Against state
- treason, sedition, etc.
- aims at protection of national security
10
- Against persons
- e.g. murder, manslaughter, wounding,
rape, assault, etc.
- aims at protection of persons against
violence
- Against property
- e.g. theft, robbery, fraud, forgery, etc.
- aims at protection of private property .
11
- Against public order
- riot, drugs, motor vehicle offences,
possession of offensive weapons, etc
- aims at protection of public order,
peace and safety .
- Against habitation
- e.g. burglary, etc.
- aims at protection of safety & security in
one’s home.
12
- Against public morals
- prostitution, incest, obscenity, sodomy,
gambling, etc
- aims at protection of traditional morality.
4
2014/10/3
- Against administration of justice
- e.g. bribery, resisting arrest, perjury etc.
- aims at protection of efficient / honest
public administration
13
9. Presumption of innocence
- Woolmington v DPP 1935
- Art. 11 BORO Cap. 383; Art. 39 Basic Law
- Accused – the person arrested is presumed
innocent of the offence until proven
guilty.
- Adversarial system
- CX – Inquisitorial system – reverse burden.
14
10. Burden of Proof on prosecution.
- on all elements of offence.
11. Standard of Proof
Proof by evidence of guilt by the prosecution
beyond a reasonable doubt.
Right of Silence by accused.
N.B. In some limited cases accused bears legal burden of
proof:
e.g. – insanity; diminished responsibility.
Accused discharges this on a balance of probabilities
15
5
2014/10/3
(c)
Principles of
Criminal Liability
Basic elements of criminal liability
(1) Actus Reus – result of
accused’s act.
(2) Mens Rea –
guilty mind/
frame of mind
(3) Absence of any defence.
16
(1)
Actus Reus
conduct;
consequences;
circumstances;
causation.
17
(i) refers to all external elements of a crime.
(ii) relates to the facts or all surrounding
circumstances.
(iii) involves a positive act;
(iv) can include an omission to act where
accused is under a legal duty to act;
R v Pittwood 1902
Gate keeper at level crossing failed to close gate
causing death of victim.
Stone v Dobinson 1977
Victim unable to look after herself. D’s undertook her
care. Not call for medical help. Died.
18
6
2014/10/3
R v Gibbons & Proctor 1918
D’s child died of starvation and neglect.
R v Larsonneur 1933
French lady brought to U.K by force by Irish
Police.
19
(v) duty to act may arise from creating a
dangerous situation
R v Miller 1983
Trespasser set fire to mattress.
CX. Should a drug trafficker owe a duty of
care to their clients?
R v Khan 1998
20
(vi) Causation must be established
Unlawful act of Defendant
R v Cox 1992
Lethal injection by doctor
In law and on the facts
- factual causation
R v White 1910
the “but for” test
21
7
2014/10/3
R v Carey 2006
V 17 years old was punched by D in affray. V ran uphill
to hospital. Died of a heart attack. No knowledge of
condition by victim, D or hospital.
Can you say victim would not have died “
the punch?
but for”
22
legal causation
R v Smith 1959
D stabbed V in a fight. V rushed to “medical
station” in army barracks. V dropped twice on way.
Given “bad” medical treatment. No blood
transfusion. V died.
Original wound still substantial threat
23
Defendant must take his victim as he
finds him
R v Blaue 1975
Jehovah’s witness stabbed by D. Refused blood
transfusion.
R v Dear 1996
Within range of responses
24
8
2014/10/3
Unforeseeable intervening acts?
R v Pagett 1983
Using girlfriend as a “shield”.
25
Nota Bene
Actus Reus must be voluntary act
not include:
- acts under hypnosis;
- acts done whilst sleepwalking;
- words (cx assault/conspiracy) .
26
(2) Mens Rea
refers to state of mind of accused.
- is the awareness of his actions.
Most crimes require this
element.
27
9
2014/10/3
Mens Rea – refers to 3 states
of mind:
(i)
Intention
(aim, purpose or desire)
- doing something purposively
- doing something knowingly
(subjectively aware of a substantive certainty
or practical certainty of result)
28
(ii)
Recklessness
(conscious disregard of a substantial
and unjustified risk)
(iii)
Negligence
(failure to achieve the standard expected
of a reasonable person)
29
N.B.
-
Strict Liability Offences
No need to show mens rea.
These are regulatory offences.
Statutory in nature.
Include construction site safety, public health,
pollution, public nuisance etc
Cundy v Le Cocq 1884
D sold liquor to a drunken person. D did not know
V was drunk. Convicted.
30
10
2014/10/3
What if offence is silent on mens rea?
For most offences, under the common law, there
is a presumption of some mens rea being
required.
B (a minor) v DPP 2000
31
B – a 15 year old boy.
Repeatedly asked a 13 year old girl on a bus for oral sex.
Girl refused.
B was convicted of inciting a child under 14 to commit an
act of gross indecency.
B honestly thought V was over 14.
On appeal to House of Lords, it was held that:
this is not strict liability offence;
mens rea is the subjective honest belief by D that V
was over 14.
32
11
Criminal Law
Hanif Mughal
(麥 嘉 豪 )
Adjunct Associate Professor
(
兼任教授)
Barrister-at-law
(
大律師 )
DLS 2
BRIEF - Lecture 1
(A).General Introduction
(B). What is a crime?
(C). Principles of Criminal Liability
Chapters 1, 2 and 4 of the Workbook
and some additional information
2
(A) General Introduction
1.General Principles.
2. Law regulates conduct in society.
3. Division of Law into civil and criminal law.
4. Civil Law – disputes between individuals.
3
1
2014/10/3
5. Criminal Law
- disputes between the state and individuals.
- it is about proscriptive (prohibited) and
prescriptive (preferred) rules
of conduct.
6. Prosecution by the State of bad conduct.
4
State is generic term.
(B) What is a Crime?
1. Morality and Illegality;
2. A crime is an injury against society.
Harmful conduct against societal interests.
3. Essence is PUNISHMENT
5
4. Criminal Law acts as an instrument of
and aims to
SOCIAL CONTROL
protect interests.
5. By achieving the FUNCTIONS
of
criminal law
(detection, investigation,
prosecution, due process, and sentencing)
6
2
2014/10/3
6. Crimes are called offences.
- created by statute or common law
- summary offences;
- indictable offences;
- offences triable either way;
- arrestable and non-arrestable offences.
7
Basic elements of a crime
Actus Reus
-
guilty act
Mens Rea
-
guilty mind
8
7. Ancient Principles of Criminal Law:
- Nullum Crimen Sine Poena;
- Nulla Poena Sine Lege;
- Actus Non Facit Reum Nisi Men Sit Rea;
9
- Lex Prospicit Non Respicit.
3
2014/10/3
8. Examples of Crimes:
- Against state
- treason, sedition, etc.
- aims at protection of national security
10
- Against persons
- e.g. murder, manslaughter, wounding,
rape, assault, etc.
- aims at protection of persons against
violence
- Against property
- e.g. theft, robbery, fraud, forgery, etc.
- aims at protection of private property .
11
- Against public order
- riot, drugs, motor vehicle offences,
possession of offensive weapons, etc
- aims at protection of public order,
peace and safety .
- Against habitation
- e.g. burglary, etc.
- aims at protection of safety & security in
one’s home.
12
- Against public morals
- prostitution, incest, obscenity, sodomy,
gambling, etc
- aims at protection of traditional morality.
4
2014/10/3
- Against administration of justice
- e.g. bribery, resisting arrest, perjury etc.
- aims at protection of efficient / honest
public administration
13
9. Presumption of innocence
- Woolmington v DPP 1935
- Art. 11 BORO Cap. 383; Art. 39 Basic Law
- Accused – the person arrested is presumed
innocent of the offence until proven
guilty.
- Adversarial system
- CX – Inquisitorial system – reverse burden.
14
10. Burden of Proof on prosecution.
- on all elements of offence.
11. Standard of Proof
Proof by evidence of guilt by the prosecution
beyond a reasonable doubt.
Right of Silence by accused.
N.B. In some limited cases accused bears legal burden of
proof:
e.g. – insanity; diminished responsibility.
Accused discharges this on a balance of probabilities
15
5
2014/10/3
(c)
Principles of
Criminal Liability
Basic elements of criminal liability
(1) Actus Reus – result of
accused’s act.
(2) Mens Rea –
guilty mind/
frame of mind
(3) Absence of any defence.
16
(1)
Actus Reus
conduct;
consequences;
circumstances;
causation.
17
(i) refers to all external elements of a crime.
(ii) relates to the facts or all surrounding
circumstances.
(iii) involves a positive act;
(iv) can include an omission to act where
accused is under a legal duty to act;
R v Pittwood 1902
Gate keeper at level crossing failed to close gate
causing death of victim.
Stone v Dobinson 1977
Victim unable to look after herself. D’s undertook her
care. Not call for medical help. Died.
18
6
2014/10/3
R v Gibbons & Proctor 1918
D’s child died of starvation and neglect.
R v Larsonneur 1933
French lady brought to U.K by force by Irish
Police.
19
(v) duty to act may arise from creating a
dangerous situation
R v Miller 1983
Trespasser set fire to mattress.
CX. Should a drug trafficker owe a duty of
care to their clients?
R v Khan 1998
20
(vi) Causation must be established
Unlawful act of Defendant
R v Cox 1992
Lethal injection by doctor
In law and on the facts
- factual causation
R v White 1910
the “but for” test
21
7
2014/10/3
R v Carey 2006
V 17 years old was punched by D in affray. V ran uphill
to hospital. Died of a heart attack. No knowledge of
condition by victim, D or hospital.
Can you say victim would not have died “
the punch?
but for”
22
legal causation
R v Smith 1959
D stabbed V in a fight. V rushed to “medical
station” in army barracks. V dropped twice on way.
Given “bad” medical treatment. No blood
transfusion. V died.
Original wound still substantial threat
23
Defendant must take his victim as he
finds him
R v Blaue 1975
Jehovah’s witness stabbed by D. Refused blood
transfusion.
R v Dear 1996
Within range of responses
24
8
2014/10/3
Unforeseeable intervening acts?
R v Pagett 1983
Using girlfriend as a “shield”.
25
Nota Bene
Actus Reus must be voluntary act
not include:
- acts under hypnosis;
- acts done whilst sleepwalking;
- words (cx assault/conspiracy) .
26
(2) Mens Rea
refers to state of mind of accused.
- is the awareness of his actions.
Most crimes require this
element.
27
9
2014/10/3
Mens Rea – refers to 3 states
of mind:
(i)
Intention
(aim, purpose or desire)
- doing something purposively
- doing something knowingly
(subjectively aware of a substantive certainty
or practical certainty of result)
28
(ii)
Recklessness
(conscious disregard of a substantial
and unjustified risk)
(iii)
Negligence
(failure to achieve the standard expected
of a reasonable person)
29
N.B.
-
Strict Liability Offences
No need to show mens rea.
These are regulatory offences.
Statutory in nature.
Include construction site safety, public health,
pollution, public nuisance etc
Cundy v Le Cocq 1884
D sold liquor to a drunken person. D did not know
V was drunk. Convicted.
30
10
2014/10/3
What if offence is silent on mens rea?
For most offences, under the common law, there
is a presumption of some mens rea being
required.
B (a minor) v DPP 2000
31
B – a 15 year old boy.
Repeatedly asked a 13 year old girl on a bus for oral sex.
Girl refused.
B was convicted of inciting a child under 14 to commit an
act of gross indecency.
B honestly thought V was over 14.
On appeal to House of Lords, it was held that:
this is not strict liability offence;
mens rea is the subjective honest belief by D that V
was over 14.
32
11