CRIMINAL LAW 43 • INDIRECT Intent: an Outcome Was Not the Defendant’S Main Aim, but an Unfortunate By- Product of His Aim

Topic 1 General Principles

Burden of proof/standard of proof

The burden of proof is on the prosecution to prove the Defendant’s guilt beyond reasonable doubt (Woolmington v DPP)

Liability for omissions (failing to act)

General Rule: There is no liability for failing to act.

Exceptions: A person can be liable for failing to act where:

1) There is a SPECIAL RELATIONSHIP between the defendant and the victim. For example: • family ties; or, • where the Defendant has assumed a responsibility/duty to the Victim (R v Stone & Dobinson)

2) The Defendant owes a CONTRACTUAL DUTY to act, but fails to comply with these obligations (R v Pittwood)

3) The Defendant owes a STATUTORY DUTY to act. For example, the duty for car drivers to stop at red lights

4) The Defendant has created a DANGEROUS SITUATION, and has not removed the danger created (R v Miller)

Mens Rea: different types of mens rea

1) INTENTION • DIRECT Intent: the Defendant’s primary purpose is to bring about a particular consequence, design or aim (R v Moloney)

BPP COPYRIGHT YOURGDLBPP 2015/16 YOURGDL.CO.UK/BPP CRIMINAL LAW 43 • INDIRECT Intent: an outcome was not the Defendant’s main aim, but an unfortunate by- product of his aim. Test for indirect intent (R v Nedrick as confirmed and refined by R v Woollin): ○○ Was the consequence virtually certain to occur from the Defendant’s act? ○○ If yes, did the Defendant foresee this consequence as virtually certain to occur? • ULTERIOR intent: Where the Defendant intends to produce a consequence that that goes beyond the actus reus (AR) of the crime (see Topic 9 Robbery & Burglary)

2) RECKLESSNESS Test for whether the Defendant is reckless is the Cunningham test (see R v G): Did the Defendant FORESEE a risk (subjective), and then go on to TAKE IT?

Specific and basic intent crimes

1) Specific Intent crimes = crimes where intention alone (and NOT recklessness) will suffice to make out the MR, for example murder, s.18 OAPA, theft.

2) Basic Intent crimes = crimes where EITHER intention or recklessness will suffice to make out the MR, for example criminal damage (see below)

Coincidence of AR and MR

GENERAL RULE: the AR and MR must coincide in time for a the Defendant to be criminally liable.

EXCEPTION: the Defendant may be found guilty of an offence where the AR and MR do not precisely match up in time/where there is a lapse of time between the two, in cases where the Defendant has carried out a SERIES OF ACTS and from the outset appears to be involved in criminal activity (Thabo- Meli v R and R v Le Brun).

Doctrine of Transferred Malice

If the Defendant has the ‘malice’ (i.e. intention or recklessness) to commit a crime against one victim/piece of property, this MR can be transferred to the AR he commits against ANOTHER, unintended victim/piece of property (R v Latimer).

44 CRIMINAL LAW COPYRIGHT YOURGDLBPP 2015/16 YOURGDL.CO.UK/BPP BPP For example, the Defendant shoots at X intending to kill him, but misses, and hits and kills the Victim. The doctrine of transferred malice can transfer the Defendant’s MR (intention to kill X) to a different AR (the killing of the Victim). So, the Defendant may be liable for the murder of Victim, despite not intending to kill him.

In a recent case in which two men had agreed to the joint enterprise of having a shootout, the respondent was guilty of the Victim’s murder despite the fact that he was not the person who had fired the shot (R v Gnango).

N.B. the doctrine is limited to CRIMES OF THE SAME TYPE (R v Pembliton)

Driving offences – Road Traffic Act 1988

Problem Questions: use general criminal law structure to apply the following AR and MR.

1) Dangerous Driving (s.2 RTA 1988) (a) AR: Driving a mechanically propelled vehicle on a road or other public place DANGEROUSLY – the definition of driving dangerously (s.2A RTA 1998): (i) the Defendant drove in a manner which fell far below what would be expected of a careful and competent driver; and it would be obvious to a careful and competent driver that driving in such a way would be dangerous; or (ii) the condition of the Defendant’s vehicle is such that it would obvious to a careful and competent driver that driving it would be dangerous (b) MR: None. Strict liability offence.

2) Careless and inconsiderate driving (s.3 RTA 1988) (a) AR: Driving a mechanically propelled vehicle on a road or other public place WITHOUT DUE CARE AND ATTENTION OR REASONABLE CONSIDERATION for other road users (b) MR: None. Strict liability offence. Driver is assessed against the standards of the reasonable driver - a fixed objective test (McCrone v Riding)