The distinction between criminal law and other areas.

 Criminal law is part of public law whereas law of tort and contract are private law
 Criminal proceedings a prosecution is brought by the state (crown)- the state prosecutes
a defendant
 Tort and contract an individual sues another individual or a body
 Criminal law is concerned with the prosecution of individuals whos behaviour has not
met the standard
 Law of tort and contract govern the law related to private wrongs
 In criminal proceedings, a verdict is given at the end of the trial where the d is guilty or
not
 Criminal law is concerned with the punishment of offenders and a defendant who has
been convicted who will be sentenced
 A d who is not guilty is acquitted
 Civil law is concerned with compensating by the payment of damages
The nature and function of the criminal law
The criminal law has a number of functions:
1. The law sets standards of behaviour which citizens must meet and these standards
reflect the values of society (such as morality or religion).
2. Criminal law prohibits conduct which threatens or causes harm to individuals or to the
wider public.
3. The criminal justice system is punitive, punishing defendants for criminal conduct.
4. Deterrence- It is argued that if certain behaviour is deemed to be criminal, then
members of society will refrain from such conduct. By punishing offenders, the criminal
justice system seeks to encourage other members of society to comply with the law.
The classification of offences
1. Indictable only offences- most serious offences e.g. murder, manslaughter, rape etc.
they carry high penalties upon conviction- maximum sentence or life imprisonment
2. Either way offences- offences of medium seriousness e.g. theft, bodily harm, wounding
and burglary.
3. Summary only offences- least serious offences e.g. driving offences, assault and battery.
These carry lighter penalties
The criminal process.

1. Investigation- the police investigate the offence and take witness statements and cctv
footage
2. Arrest and charge- officer finds a suspect and would arrest the suspect and interview
him. If there’s enough evidence, the officer would consult cps then charge the suspect
with the offence and send the case papers to cps. The CPS is the body responsible for
the decision to bring a criminal prosecution against an individual. If the CPS decides not
to prosecute the suspect, it will not proceed with the case.
3. First court appearance- The case would be called R v [Defendant] or Regina v
[Defendant]. The ‘R’ or ‘Regina’ refers to the Queen (the State), who brings the case
against the defendant. The first court appearance always takes place at a local
magistrates’ court. At this hearing, the charge would be read to the defendant and he
would simply be required to confirm details, such as his name and address. At this stage,
the date for the next court hearing will be set. After a number of pre-trial hearings
(depending upon the offence charged), the case will be given a date for trial. The trial
will take place either at the magistrates’ court or at the Crown Court. The court at which
the trial takes place will depend upon the classification of the offence with which a
defendant is charged
4. The trial- the prosecution bring the case against the defendant, the prosecution must
prove that the defendant committed a criminal offence. The prosecution will, therefore,
present their case and call their witnesses first. When the prosecution have finished
calling all of their witnesses, it is open to the defence to make a submission of no case to
answer. This is often called a ‘half-time submission’: the defence argue either that the
prosecution have failed to prove the elements of the offence, or that the evidence that
they have put forward is so weak that a jury (or magistrates) properly directed could not
convict on it. If this submission is successful, the judge will direct an acquittal and the
trial is over. If the submission fails, the trial continues with the defence presenting their
case and calling their witnesses. At the conclusion of the defence case, both the
prosecution and defence will give closing speeches.
5. The verdict and sentencing- If the jury or magistrates return a not guilty verdict, the
defendant is acquitted and is free to leave court. If the jury or magistrates return a guilty
verdict, the defendant is convicted of a criminal offence and the court will sentence him.
A PSR is written by a probation officer who has regular meetings with the offender
during the adjournment. The report will recommend certain types of sentence for the
offender and the judge will take this into account in
sentencing.
The hierarchy of the criminal courts.

The burden and standard of proof.

On the prosecution On the defence

Burden of • To prove all the • Occasionally to prove the defence (e.g., if

proof elements of the offence pleading insanity or diminished
• To disprove the responsibility)
defence

Standard of Beyond reasonable Balance of probabilities

proof doubt
An evidential burden is simply a burden to raise some evidence in order to make an issue a
‘live one’: ‘a party may be required to adduce some evidence in support of his case, whether
on the general issue or on a particular issue, before that issue is left to the jury

Actus reus
Actus reus: guilty act
the elements of actus reus
 an act or omission (conduct);
 the occurrence of a result (consequences);
 the existence of surrounding circumstances.
the requirement for conduct to be voluntary and what this means;
 The actus reus of an offence must be voluntarily performed. This means that the
defendant must have been in control of his movements at the time that he performed
the conduct element of the actus reus (or at the time that he omitted to act if liability is
based upon an omission to act). Where the defendant’s conduct is involuntarily
performed, no criminal offence has been committed. 
Conduct Consequences Circumstances

 Conduct elements  Consequence elements  Circumstance

involve either an act or involve a result which elements involve the
an omission to act by must have been caused existence of a set of
the defendant by the conduct of the circumstances or
 Conduct offences are defendant. ‘state of affairs’.
‘doing’ offences,  Proof of causation is  The actus reusof theft
although this term is required. requires the existence
misleading, as a conduct  Murder is also a ‘result of certain
offence can involve an crime’: the result is the circumstances: the
omission to act. death of a human being property stolen must
 Perjury contains a and it must be belong to another.
conduct element. The established that the  The actus reus of rape
conduct is simply defendant caused the also involves
making a statement on victim’s death. (There is surrounding
oath in judicial obviously also a conduct circumstances: the
proceedings which is element to murder; an absence of consent to
known to be false. (The act or omission which sexual intercourse.
fact that the statement causes death is  Some offences have
must be made ‘in required.) no conduct or
judicial proceedings’ is a  consequence
surrounding elements, but simply
circumstance.) depend upon the
existence of a set of
circumstances; these
are often referred to
as ‘state of affairs’
crimes.

 Where the conduct is involuntary, the defendant is deemed to be an automaton and will
have the defence of automatism available to him.
Automation: an act which is done by the muscles without any control by the mind, such as a
spasm, a reflex action or a convulsion; or an act done by a person who is not conscious of
what he is doing, such as an act done whilst suffering from concussion.- it’s a defence. In
order for the defence of automatism to be successful, the defendant must suffer a total loss
of voluntary control:
liability for omissions – the general rule and the exceptions
omission: a failure to act
 the actus reus element of conduct offences will usually involve the performance of a
positive act, a defendant may sometimes be criminally liable for an omission to act.
 The general rule is that there is no liability for an omission to act. Thus, conduct offences
require a positive act by the defendant in order to establish liability. This general rule is
often expressed by the phrase that ‘there is no duty of easy rescue’
 Conduct offences require a positive act, so A would be guilty of murder if he deliberately
and actively drowns B, such as by physically holding B’s head under water. However,
generally speaking, A will not be guilty of any offence if he leaves B to drown, even if he
desires B’s death, because omitting to act carries no liability in English criminal law 
Views on ‘easy rescue’
Conventional view Social responsibility view

 A should not be compelled to serve B  A should be under a duty to help a

 A should not be encouraged to interfere in stranger B
B’s life—the law values individual  Society recognises a duty of
autonomy and liberty mutual support
 Doing a positive criminal act with bad  The whole of society will benefit
consequences is morally more from a duty to rescue
blameworthy than omitting to act and  Liability should be limited to those
causing the same consequences who had a greater opportunity to
 Such a duty would increase the possibility save B
of mass liability (e.g., if 50 people watch B  Liability should be limited to cases
drown, they would all be liable) where the danger to B far
outweighs the inconvenience or
cost to A
Exceptions
There are five instances where the law imposes a duty on an individual to act. 

1. Special relationship- The closer the relationship, the more likely it is that the law will
impose a duty on an individual to act. 
2. Voluntary assumption of responsibility- A duty to act may be imposed on a defendant
where the defendant has voluntarily assumed responsibility for another person. Hence,
 where the defendant undertakes to care for a helpless or infirm relative, any omission to
do so resulting in death will render the defendant guilty of murder or manslaughter
3. Duty to avert danger created- Where the defendant innocently does an act which
creates a risk of personal injury or damage to property and the defendant becomes
aware of that risk, the law imposes a duty on the defendant to act to avert or minimise
the danger. The defendant becomes liable when the defendant realises the danger that
he has created (i.e., the defendant forms the mens rea) and he then fails to act to avert
that danger (this omission is sufficient actus reus).
4. Contractual duty or public duty- A contract may give rise to duty to act, which may then
lead to criminal liability if the defendant fails to meet his contractual obligations and this
leads to a fatality or serious harm being caused to a person. This type of duty usually
arises in the context of an employment contract where the employee has failed to do
what he is contractually obliged to do, and it may be owed to people who are not
necessarily party to the contract, but who are likely to be injured by a failure to perform
the contract
5. Statutory duty- The law may impose a statutory duty on a defendant to act in a
particular way. Failure to act in accordance with the statute will render a defendant
liable for a criminal offence
causation
 There are two main rules of causation: the prosecution must prove that the defendant
was the factual cause of the result and that he was the legal cause of the result.
 The test for factual causation is the ‘but for’ test: it must be established that but for the
defendant’s actions, the result would not have occurred. Legal causation is referred to as
the ‘chain of causation’: the prosecution must prove that there was no novus actus
interveniens (‘new intervening act’), which broke the chain of causation. If the chain of
causation is established, then the defendant will have caused the result and may be
guilty of an offence if the remaining elements of the actus reus and the mens rea of the
offence can be proved. However, if the chain of causation is not established due to the
existence of an intervening event which breaks the chain, the defendant cannot be said
to have caused the result. Hence, there is no actus reus and he will not be guilty of an
offence

Factual causation
The prosecution must initially establish that the defendant’s conduct was a factual cause of
the result. His conduct (act or omission) must be a sine qua non (‘without which not’) of the
result. This is referred to as the ‘but for’ test. This test is applied by asking the question: but
for the defendant’s conduct, would the consequence have occurred? If the result would
have occurred irrespective of the defendant’s conduct, then factual causation is not
established. The defendant cannot be said to have caused the result and he will not have
the actus reus for any offence requiring proof of causation of that result. If the result would
not have occurred but for the defendant’s conduct, then factual causation is established

Legal causation
 There needs to be a link between the result and the culpability of the defendant.
 The prosecution must prove that the defendant’s conduct was a more than minimal
cause of the prohibited consequence. This is referred to as the de minimis principle,
through which the law seeks to disregard any negligible or trifling causes. However, the
cases in this area have developed further terminology which is often used in reference
to legal causation. A defendant will be the legal cause of the consequence if his conduct
was the ‘operating and substantial cause’ of that result
 It is a matter for the jury to decide whether or not the conduct of the defendant has a
sufficient link to the end result to justify attaching blame to the defendant. As such, the
jury are tasked with making a value judgement. While an expert might be called to give
evidence on the cause of death of a victim, the issue of causation is one for the jury to
decide
Novus actus interveniens (‘New intervening act’)
 Where the defendant’s conduct is a more than minimal or ‘operating and substantial’
cause of the result, the defendant will be the legal cause of that result, unless there is
a novus actus interveniens which breaks the chain of causation. If an intervening act
does break the chain of causation, the defendant will not be the cause of the result and
will be absolved of liability for that result