CRMINAL LAW

IRAJ SHARIQ NAQVI

LECTURE 2 – GENERAL PRINCIPLES (PART B)
 CRIMINAL LIABILITY

• Criminal liability refers to responsibility for a crime and the penalty society imposes for the crime.
Because crimes cause harm to society as a whole (in addition to the victim(s)), a government lawyer
(prosecutor) brings charges against the offender on behalf of its citizens.
• A person can be found liable for a crime if the prosecution proves that the person committed the
criminal act (such as stealing) and had the required intent to hold the person accountable (such as
intent to deprive the owner of the property).
• Three main structures of criminal liability are presently recognized by the Pakistani criminal legal
tradition.
1. Crimes of Mens Rea
2. Crimes of Strict Liability
3. Crimes of Absolute Liability
 CRIMES OF MENS REA

• Defined by reference to consequences and subjective mental standards

• The accused cannot be convicted unless they possess the required mental state (eg,
intention or recklessness for murder) or some substitute for it (eg, constructive murder)
 CRIMES OF STRICT LIABILITY

• Defined by reference to the doing of the prohibited conduct or the causing of the prohibited consequences
• Prima facie, criminal liability attaches proof that the actus reus has been committed (ie, voluntarily)
• The prosecution need not prove fault Only the physical elements of the crime are necessary to prove
GENERAL DEFENCE EXISTS

• Honest and reasonable mistake of fact is legally available to the accused

• Where the accused is labouring under an honest and reasonable mistake of fact as to circumstances which, if
they existed, would have meant no offence was committed, the accused will not be guilty of the offence
• The onus is on the defence to raise sufficient evidence to be considered relevant; having done so, the onus
shifts to the prosecution to disprove the defence beyond reasonable doubt
 CRIMES OF ABSOLUTE LIABILITY

• Defined by reference to the doing of the prohibited conduct or the causing of the prohibited
consequences
• The conduct or consequences in and of themselves create criminal liability of course, the
accused can still raise arguments to defeat the actus reus Eg, involuntariness, duress, etc
NO DEFENCE of honest and reasonable mistake of fact applies
• Because of the relative ease with which criminal liability attaches to conduct, these
offences are rare
• In a crime of strict OR absolute liability, a person could be guilty even if there was no intention to
commit a crime. The difference between strict and absolute liability is whether the defence of a
“mistake of fact” is available: in a crime of absolute liability, a mistake of fact is not a defence.
 CAUSATION

• Causation refers to the enquiry as to whether the defendant's conduct (or omission) caused
the harm or damage. Causation must be established in all result crimes. Causation
in criminal liability is divided into factual causation and legal causation.
• Factual causation is the starting point and consists of applying the 'but for' test. In most
instances, where there exist no complicating factors, factual causation on its own will suffice
to establish causation.
• However, in some circumstances it will also be necessary to consider legal causation. Under
legal causation the result must be caused by a culpable act, there is no requirement that the
act of the defendant was the only cause, there must be no novus actus interveniens (breaking
the chain) and the defendant must take his victim as he finds him (thin skull rule).
 FACTUAL CAUSATION

• Factual causation is established by applying the 'but for' test. This asks, 'but for the actions of the defendant,
would the result have occurred?' If yes, the result would have occurred in any event, the defendant is not
liable. If the answer is no, the defendant is liable as it can be said that their action was a factual cause of the
result.
• For example: R v White [1910] 2 KB 124

The defendant put some poison in his mother's milk with the intention of killing her. The mother took a few
sips and went to sleep and never woke up. Medical reports revealed that she died from a heart attack and not
the poison. The defendant was not liable for her murder as his act of poisoning the milk was not the cause of
death. He was liable for attempt.

This case established the 'but for' test. i.e. would the result have occurred but for the actions of the defendant?
If the answer is yes the defendant is not liable.
 LEGAL CAUSATION

• Legal causation justifies the imposition of criminal liability by finding that the defendant is culpable
(deserving blame) for the consequences which occurred as a result of his/her actions. This involves
showing that the chain of events linking the defendant's conduct and the consequences remains unbroken.
• For example: R v Dalloway (1847) 2 Cox 273

The defendant was driving a horse and cart down a road without holding on to the reins. A child ran in
front of the cart and was killed. The defendant was not liable as he would not have been able to stop the
cart in time even if he had been holding the reins.

This case is authority for the point that the result must be caused by a culpable act. Here the culpable act
was not holding the reins, which was not the cause of death.
• The defendant was charged with gross negligence manslaughter for his involvement in an
incident involving a train becoming derailed. The defendant was the foreman of some works
being carried out on the track. He misread the train time-table and ordered the work to be
done at a time when the train was due. In addition the lookout man was not standing at the
correct distance to give an adequate warning and the driver was not paying sufficient attention
to stop the train in time. The defendant argued that if the lookout man and driver were doing
their job correctly the incident would not have occurred.
• Held:

The defendant's conviction was upheld. The defendant's action need not be the only cause.
Liability can arise provided the defendant's act was more than a minimal cause.
 THERE MUST BE NO ’NOVUS ACTUS
INTERVENIENS’
• A novus actus interveniens is a new intervening act which breaks the chain of causation. Different tests
apply to decide if the chain has been broken depending on the intervening party.
1. Act of a third party
• The act of a third party will generally break the chain of causation unless the action was foreseeable:
R v Pagett (1983) 76 Cr App R 279
• The appellant aged 31 had separated from his wife and formed a relationship with a 16 year old girl. She
became pregnant. She finished the relationship when she was six months pregnant because he was
violent towards her.
• He did not take the break up well and drove to her parents house armed with a shotgun. He shot the
father in the leg and took the mother at gunpoint and demanded she took him to where her daughter was.
• When there, after various threatening and violent behaviour, he then took the girl. He drove off with
the mother and daughter.
• The police caught up with him and he kicked the mother out of the car and drove off with the
daughter. He took her to a flat and kept her hostage. Armed police followed him. He used the girl as
a shield as he came out of the flat and walked along the balcony.
• The police saw a figure walking towards them but could not see who it was. The appellant fired
shots at the police and the police returned fire. The police shot the girl who died.
• The appellant was convicted of possession of a firearm with intent to endanger life, kidnap of the
mother and daughter, attempted murder on the father and two police officers and the manslaughter
of the girl. He appealed against the manslaughter conviction on the issue of causation.
• Held:
Conviction upheld. The firing at the police officers caused them to fire back. In firing back
the police officers were acting in self -defence. His using the girl as a shield caused her
death.
2. The act of the victim
• Where the act is of the victim, the chain of causation will not be broken unless the victim's
actions are disproportionate or unreasonable in the circumstances:
R v Roberts [1971] EWCA Crim 4 Court of Appeal
• A young woman aged 21 accepted a lift from the defendant at a party to take her to another
party. She had not met the man before and it was 3.00 am.
• The defendant drove in a different direction to where he told her he was taking her and then stopped in a remote
place and started making sexual advances towards her. She refused his advances and he drove off at speed.
• He then started making further advances whilst driving and she jumped out of the moving car to escape him. She
suffered from concussion and cuts and bruises. The defendant was convicted of actual bodily harm under s.47 of
the Offences Against the Person Act 1861. He appealed contending that he did not intend or foresee a risk of her
suffering actual bodily harm from his actions and that he did not foresee the possibility of her jumping out of the
car and therefore her actions amounted to a novus actus interveniens.

Held:
There is no need to establish an intention or recklessness as to the level of force under s.47. It is sufficient to
establish that the defendant had intention or was reckless as to the assault or battery.
• Where the victim's actions were a natural result of the defendant's actions it matters not whether the defendant
could foresee the result. Only where the victim’s actions were so daft or unexpected that no reasonable man could
have expected it would there be a break in the chain of causation.
 MURDER/HOMICIDE

• Murder was known as homicide in section 299 of the Indian Penal code which defined it
as “Whoever causes death by doing an act with the intention of causing death, or with the
intention of causing such bodily injury as is likely to cause death, or with the knowledge
that his act is likely to cause death, commits the offence of culpable homicide.” Before
Qisas and Diyat Ordinance, this was the definition of murder.
• Murder was defined to be the unlawful killing of another human being without any
justification or with some malicious intent. But Qisas and Diyat ordinance replaced this
term of ‘murder’ with Qatl and divided it into different types. Qatl is now defined by the
PPC, by section 299(j), as ‘causing the death of a person’.
 DIFFERENCE BETWEEN DEFINITIONS

• Common law: the killing of another person with malice aforethought

• Model Penal Code: murder is a killing which occurs 1) purposefully, 2) knowingly, or 3)
recklessly
• First-degree murder: deliberate and premeditated
• Second-degree murder: any killings that are intentional but not premeditated or planned
 MANSLAUGHTER

• Voluntary
1. an intentional killing which occurs under a mistaken belief that self-defense is needed
2. or in response to adequate persuasion while in the sudden heat of passion
• Involuntary
1. an unintentional killing occurs as a result of a reckless act
 NEGLIGENT HOMICIDE

• An unintentional killing in which the defendant should have known that they were
creating a substantial risk of death by their conduct
• Such conduct deviated from the ordinary level of care owed to others
 FORCE

• According to S. 349, a person is said to use force to another if the causes in one of the three following
ways:
(a) motion, or
(b) change of motion, or
(c) cessation of motion:
to that other, or to any substance, so as to bring it into contact with any part of that other, or anything
which that other is wearing or Tying or anything so situated that such contact affects the sense of
feeling of the other’s:
i. Firstly be his own bodily power.
Ii. Secondly by disposing any substance in such a manner that the motion change of motion cessation
of motion takes place without any other person.
Iii. Thirdly by inducting any animal to move, to change its motion or to cease its motion.
 ASSAULT

• Section 351 lays down that whoever makes gesture, or any preparation intending or
knowing it to be likely C such gesture or preparation will cause any person present
apprehend that he who makes that gesture or preparation is about use criminal force to
their person, is said to commit an assault.
• Mere words do not amount to an assault. But the words w’ a person uses may give to his
gestures or preparation such a mea as may make those gestures or preparations amount to
an assault.
• For example
(a) A shakes his fist at Z intending or knowing to be likely that he may thereby cause Z to
believe that A is about to strike Z. A has committed an assault.
(b) A begins to unloose the muzzle of a ferocious q intending or knowing it to be likely that
he may then cause Z to believe that he is about to cause that attack Z, A has committed an
assault upon Z.
(c) A takes up a stick, saying to Z “I will give you beating”. Here, though the words used by
A could case amount to an assault, and though the mere gest1 unaccompanied by any other
circumstances, might amount to an assault, the gesture explainer by the w may amount to an
assault.
 CRIMINAL FORCE

• According to Section 350; whoever intentionally uses force to another without his
consent:
(a) in order to the committing of offence, or
(b) intending or knowing it to be likely that by the use of such force, he will cause injury
or fear, or annoyance to the latter, is said to use criminal force to that other.
 BATTERY

• The word battery has not been defined the Pakistan Penal Code. In the English Law battery
has been defined as any less hurt or violence unlawfully and wilfully culpably done to the
person of another.
• The term battery’ as understood in English Law is, therefore, included in criminal force as
defined in the Pakistan Penal Code. The two expressions criminal force and ‘assult’have
been discussed earlier and need not be repeated here.
• Suffice it to say that when a person shakes his fist at another standing by him, he is guilty
of assault but if he strikes that another, he is guilty for using criminal force or battery.
Physical contact is therefore, necessary in the case of battery, but not in the case of assault.
 RAPE

• Rape is defined in Section 375 of the Pakistan Penal Code, 1860 (the “PPC”) as follows:
A man is said to commit “rape” who has sexual intercourse with a woman under circumstances
falling under any of the five following descriptions:
(i) against her will,
(ii) without her consent,
(iii) with her consent, when her consent has been obtained by putting her in fear of death, or of
hurt,
(iv) with her consent, when the man knows that he is not married to her and that her consent is
given because she believes that the man is another person to whom she is or believes herself to
be lawfully married; or
(v) with or without her consent when she is under sixteen (16) years of age.
• Explanation. Penetration is sufficient to constitute the sexual intercourse necessary to the
offence of rape.
• The maximum penalty for rape is death and/or imprisonment for twenty five (25) years
and/or fine.
 REVISION QUESTIONS – WEEK 2

1. What are the three elements which make up criminal liability?

2. What does actus reus mean?
3. What does mens rea mean?
4. What is absolute liability?
5. Define causation.
Good Luck!