5 single best answer questions on Criminal Liability, written to the SRA specification. Pick an answer, then open the explanation: the correct option, why each of the others fails, and the authority behind it. No sign-up.
The core principles of criminal liability — actus reus, including omissions and causation, and mens rea — applied to the specified offences: homicide, non-fatal offences against the person, theft, robbery, burglary, fraud and criminal damage; the general defences and the partial defences to murder; secondary participation; and attempts.
Questions give a set of facts and ask whether an element is made out or a defence available. Read for the mental element: it decides most of them.
Question 1
MurderMedium
A man climbs onto a footbridge over a motorway at night carrying a paving slab. Angry about a recent driving ban, he says he only wanted to smash a windscreen or two and see cars swerve. He drops the slab onto the carriageway as a lorry and several cars approach, the vehicles beneath the bridge travelling at motorway speed. He tells the police that he knew there was a good chance that someone in a vehicle might be seriously hurt, but that he hoped the drivers would avoid the slab and he did not want anyone to die. The slab strikes a windscreen and the driver dies.
Is the man guilty of murder?
Show the answer and explanationAnswer E+
E
Correct answer
No, because he neither intended to kill nor to cause really serious harm; foresight of a risk is not intention.
Murder requires intention to kill or to cause grievous bodily harm; foresight of a serious risk, short of appreciated virtual certainty, is not intention.
He wanted to damage vehicles, not to kill or seriously injure. His admitted foresight of a 'good chance' of serious injury does not amount to appreciating that death or serious harm was virtually certain, so oblique intention is unavailable. Liability would lie in unlawful act manslaughter.
He had no direct intent to kill or cause grievous bodily harm, and foresight of a 'good chance' of serious injury falls well short of appreciating virtual certainty.
R v Woollin [1999] 1 AC 82 — Foresight of a risk short of appreciated virtual certainty is not intention.
R v Cunningham [1982] AC 566 — Nothing less than intent to kill or cause GBH will satisfy the mens rea of murder.
Rule card
Murder: unlawful killing of a human being with intent to kill or cause GBH. Oblique intent: the jury may find intention where death/serious harm was a virtual certainty and the defendant appreciated that.
Why the other options fail
A
Adjacent rule
Yes, because a reasonable person standing on that footbridge would have realised that death or serious harm was virtually certain to follow from his act.
Oblique intention requires that the defendant himself appreciated that death or serious harm was a virtual certainty; the reasonable person's view is not the test.
R v Woollin [1999] 1 AC 82 — A jury may find intention where death or serious bodily harm was a virtual certainty and the defendant appreciated that it was.
B
Right outcome, wrong reasonClosest alternative
No, because his intention was aimed at the vehicles rather than at any person.
Right result, wrong reason: the point is not transferred malice but that he lacked any intention to kill or cause really serious harm to anyone.
Ruled out by: The acquittal of murder does not turn on transferred malice: the slab in fact struck a person, and the true reason is his lack of intention to kill or cause really serious harm.
R v Pembliton (1874) LR 2 CCR 119 — Malice directed at property cannot be transferred so as to found liability for an offence against the person.
C
Outdated law
Yes, because death was a natural and probable consequence of dropping a heavy slab onto vehicles travelling at motorway speed, and he must be taken to have intended that consequence.
Intention is not to be inferred merely because a result was a natural and probable consequence; the jury must consider all the evidence of what the defendant actually intended.
Criminal Justice Act 1967, s.8 — A court is not bound to infer that a defendant intended a result by reason only of its being a natural and probable consequence of his acts.
D
Adjacent rule
Yes, because he was reckless as to causing really serious harm.
Recklessness is not enough for murder; nothing less than an intention to kill or to cause grievous bodily harm will do.
R v Cunningham [1982] AC 566 — The mens rea of murder is an intention to kill or to cause grievous bodily harm.
Question 2
Actus reusMedium
A woman is employed as a lifeguard at a municipal swimming pool. Her contract of employment requires her to remain at the poolside and to keep the water under continuous observation throughout her shift. That morning she removed a sign warning that the far end of the pool was deep, because it had become dirty, and did not replace it.
Twenty minutes before the end of her shift her mobile telephone rang. She left the poolside and went into the staff corridor to take a personal call, leaving the pool unsupervised. While she was away a nine-year-old boy, who had come to the pool with his father, got into difficulty at the deep end. The boy's father was sitting in the poolside café with his back to the water and did not notice. Another adult swimmer saw the boy struggling and did nothing.
The woman returned after six minutes, saw the boy face down in the water, pulled him out and began mouth-to-mouth resuscitation. She stopped after two minutes because her shift had ended and a colleague had arrived. The boy died. The woman is charged with manslaughter by gross negligence.
Which of the following best explains whether the woman's failure to supervise the pool can satisfy the actus reus of the offence?
Show the answer and explanationAnswer B+
B
Correct answer
Yes, because her contract of employment placed her under a duty to supervise the swimmers.
An omission satisfies the actus reus where the defendant was under a legal duty to act; here the duty came from her contract of employment.
Her contract required her to remain at the poolside observing the water. Leaving the pool unsupervised was a breach of a contractual duty on which the safety of swimmers depended, so the omission can constitute the actus reus.
A duty to act may arise out of a contract, and breach of it can found the actus reus of manslaughter where others rely on its performance for their safety.
R v Pittwood (1902) 19 TLR 37 — A duty to act can arise from a contract of employment, and its breach can found criminal liability for an omission.
Rule card
Duties to act: statute; contract; special relationship; voluntary assumption of care; creation of a dangerous situation; public office.
Why the other options fail
A
Adjacent rule
Yes, because she created the danger by removing the sign warning that the far end of the pool was deep.
Removing the sign did not create the situation that killed the boy; the duty here derives from her employment, not from creation of a dangerous situation.
R v Miller [1983] 2 AC 161 — A defendant who creates a dangerous situation must take reasonable steps to counteract it once aware of it.
C
Right outcome, wrong reasonClosest alternative
Yes, because she voluntarily assumed responsibility for the boy when she pulled him from the water and began resuscitation.
Right outcome, wrong basis: the relevant omission is the failure to supervise, which preceded any assumption of care, and her duty already existed under her contract.
Ruled out by: The omission charged is the six-minute failure to supervise, which happened before she touched the boy at all; her duty already arose from her contract of employment.
R v Stone and Dobinson [1977] QB 354 — A duty to act may arise where the defendant voluntarily assumes responsibility for a helpless person.
D
Adjacent rule
No, because the law imposes no general duty to rescue a stranger.
That is the general rule, illustrated by the bystander swimmer, but it yields where the defendant is under a recognised duty to act.
R v Smith (William) (1826) 2 C & P 449 — There is no general duty to act for the benefit of another; liability for omission requires a duty.
E
Adjacent rule
No, because a duty to act arises only where there is a special relationship, such as parent and child.
A special relationship is one source of a duty but not the only one; contract, assumption of care and creation of danger also give rise to duties.
R v Gibbins and Proctor (1918) 13 Cr App R 134 — A parent's relationship with a child gives rise to a duty to act, breach of which may found homicide liability.
Question 3
Self-defence/defence of anotherMedium
A man runs a hardware shop on a high street. He lives in a flat above the shop, reached by a separate street door. Shortly before closing time, a customer becomes abusive about a refund, shouting and leaning across the counter with a clenched fist. The man, who has been threatened in the shop before, believes that the customer is about to punch him. There is an unlocked rear door a few feet behind him through which he could easily have left the shop. Instead, before the customer has touched him, the man picks up a heavy steel bar from a display and strikes him hard on the shoulder. The customer falls to the floor and lies still. Still frightened and acting on impulse in the seconds that follow, the man strikes him three more times on the head, fracturing his skull. The customer was not armed at any point. The man is charged with causing grievous bodily harm with intent and wishes to rely on self-defence.
Which of the following best describes whether the man can rely on self-defence?
Show the answer and explanationAnswer C+
C
Correct answer
Self-defence fails, because although he believed force was necessary, the degree of force he used was disproportionate in the circumstances.
Self-defence has a subjective limb (was force believed necessary?) and an objective limb (was the degree of force reasonable?). The second limb defeats this defendant.
He honestly believed force was necessary, so the first limb is satisfied, and neither the absence of retreat nor the pre-emptive nature of the first blow harms him. But three further blows to the head of an unarmed man lying still are disproportionate, and as the force was used in his shop rather than in a householder situation the test is disproportion, not gross disproportion.
Necessity is judged on the defendant's own belief, but the degree of force is assessed objectively: repeated blows to the head of an unarmed man already on the floor are disproportionate, and this is not a householder case.
Criminal Justice and Immigration Act 2008, s 76 — Consolidates the case law: necessity is judged subjectively, the degree of force objectively, with the gross disproportion test reserved for householder cases.
Criminal Law Act 1967, s 3(1) — Permits the use of such force as is reasonable in the prevention of crime.
Rule card
Self-defence: necessity judged on D's honest belief; degree of force judged objectively — disproportionate force is unreasonable (grossly disproportionate in householder cases). No duty to retreat; pre-emptive force allowed; heat of the moment taken into account.
Why the other options fail
A
Adjacent rule
Self-defence fails, because he could have escaped through the rear door instead of using any force.
There is no duty to retreat; the availability of an escape route is at most one circumstance in assessing reasonableness, not a bar to the defence.
Criminal Justice and Immigration Act 2008, s 76 — Consolidates the case law on self-defence, under which there is no duty to retreat and a defendant may act pre-emptively.
B
Right outcome, wrong reasonClosest alternative
Self-defence succeeds, because allowance is made for his acting in the heat of the moment and his genuine belief that he was about to be attacked.
Account is taken of the heat of the moment, but it does not convert disproportionate force into reasonable force; the objective limb must still be satisfied.
Ruled out by: The heat-of-the-moment allowance does not displace the objective limb: he struck three further blows to the head of a customer who had fallen to the floor and was lying still.
Criminal Justice and Immigration Act 2008, s 76 — Account is taken of the fact that the defendant acted in the heat of the moment, but the degree of force must still be reasonable in the circumstances.
D
Surface reading
Self-defence fails, because he struck first, before the customer had made any physical contact with him.
A defendant may act pre-emptively; striking first does not of itself defeat the defence.
Criminal Justice and Immigration Act 2008, s 76 — Self-defence includes pre-emptive strikes; the defendant need not wait to be struck.
E
Adjacent rule
Self-defence succeeds, because the force was not grossly disproportionate to the threat he faced.
The gross disproportion test applies only in householder cases; force used behind the counter of a shop against a customer is judged by ordinary disproportion.
Criminal Justice and Immigration Act 2008, s 76 — Force is unreasonable if disproportionate, unless it is a householder case, where it is unreasonable only if grossly disproportionate.
Question 4
Diminished responsibilityMedium
A man is charged with murder and relies on diminished responsibility. The defence has served two psychiatric reports diagnosing a rare disorder not previously considered by the appellate courts. The judge accepts there is sufficient evidence to raise the issue. The prosecution's own expert disagrees with the defence experts about whether the man's ability to exercise self-control was weightily impaired. Counsel asks how the jury should be directed on proof.
Which statement correctly describes the burden and standard of proof?
Show the answer and explanationAnswer E+
E
Correct answer
The defence must prove on the balance of probabilities that the man's ability to exercise self-control was weightily impaired.
Diminished responsibility carries a defence burden, discharged on the balance of probabilities.
Section 2(2) of the Homicide Act 1957 requires the defence to prove the section; the civil standard applies, and the impairment must be weighty per R v Golds.
Section 2(2) places the burden on the defence, discharged on the balance of probabilities, and 'substantial' means important or weighty under R v Golds.
Homicide Act 1957, s.2(2) — The defence must prove diminished responsibility.
R v Golds [2016] UKSC 61 — 'Substantial' means important or weighty.
Rule card
Diminished responsibility: defence bears the burden (s.2(2) Homicide Act 1957), balance of probabilities. Loss of control: prosecution must disprove beyond reasonable doubt once the issue is properly raised (s.54(5) CJA 2009).
Why the other options fail
A
Surface reading
The defence cannot discharge any burden because the disorder has not previously been recognised by the appellate courts.
Section 2(1)(a) requires a recognised medical condition, meaning recognised medically; previous judicial consideration is not required.
Homicide Act 1957, s.2(1)(a) — The abnormality of mental functioning must arise from a recognised medical condition.
B
Adjacent ruleClosest alternative
Once the issue is raised the jury must assume the section is satisfied unless the prosecution disproves it.
That is the rule for loss of control in s.54(5) of the Coroners and Justice Act 2009, not for diminished responsibility.
Ruled out by: The judge's ruling that there is sufficient evidence to raise the issue triggers the reverse burden only for loss of control under s.54(5); this man relies on diminished responsibility, where s.2(2) keeps the burden on the defence.
Coroners and Justice Act 2009, s.54(5) — For loss of control, the jury must assume the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not.
C
Right outcome, wrong reason
The defence must prove the elements of the section beyond reasonable doubt.
Section 2(2) imposes a defence burden, but a defence burden is discharged on the balance of probabilities.
Homicide Act 1957, s.2(2) — The burden of proving the section rests on the defence.
D
Adjacent rule
The prosecution must prove beyond reasonable doubt that the man does not fall within the section.
Section 2(2) of the Homicide Act 1957 places the burden on the defence; the reverse burden belongs to loss of control under s.54(5).
Homicide Act 1957, s.2(2) — It shall be for the defence to prove that the person charged is not liable to be convicted of murder by virtue of this section.
Question 5
Principal offenderMedium
A woman shares a flat with a colleague whom she blames for the loss of a promotion. She fills an empty capsule with a fatal dose of garden pesticide and puts it in the colleague's box of headache tablets. That evening a friend visits. The colleague complains of a headache, and the woman asks the friend to fetch 'her tablet' from the box in the kitchen. The friend, who knows nothing of the pesticide, chooses the capsule of her own accord, hands it to the colleague and watches her swallow it. Both the woman and the friend are in the room. The colleague dies within the hour.
Which of the following best describes the woman's liability for the colleague's death?
Show the answer and explanationAnswer D+
D
Correct answer
The woman is the principal offender, having acted through an innocent agent.
The woman used a person with no knowledge of the poison to administer it; she is the principal offender through an innocent agent.
The woman had the mens rea for murder and set in motion the events causing death; the friend, ignorant of the pesticide, committed no offence. The instigator is therefore the principal offender acting through an innocent agent, rather than a secondary party.
Where the actus reus is performed by a person who lacks mens rea and is innocent of any offence, the instigator who set the events in motion with the necessary mens rea is the principal offender through the doctrine of innocent agency.
R v Michael (1840) 9 C & P 356 — Death caused through an ignorant intermediary makes the instigator the principal offender.
Accessories and Abettors Act 1861, s.8 — Aiding, abetting, counselling or procuring the commission of an offence makes a person punishable as a principal offender.
Rule card
Identify the principal first. Where the person performing the acts is innocent of any offence, the instigator with mens rea is the principal through innocent agency; secondary liability under s.8 Accessories and Abettors Act 1861 is the analysis where the other party does commit the offence.
Why the other options fail
A
Adjacent rule
The woman is a secondary party, because she counselled the friend to give the colleague the capsule.
Secondary liability is derivative: it requires a principal offence. The friend, who knew nothing of the pesticide, has no mens rea, so there is no offence for the woman to have counselled; the law treats her as the principal.
Accessories and Abettors Act 1861, s.8 — A person who aids, abets, counsels or procures the commission of an offence is liable to be tried and punished as a principal offender.
B
Adjacent rule
The woman is not liable, because the friend's free and deliberate act broke the chain of causation.
An intervening act relieves the defendant only where it is free, deliberate and informed. The friend did not know what the capsule contained, so her act was not informed and does not break the chain.
R v Kennedy (No 2) [2007] UKHL 38 — Only a free, deliberate and informed act of a third party breaks the chain of causation.
C
Right outcome, wrong reasonClosest alternative
The woman is a secondary party who procured the offence, and is punishable as a principal offender.
Procuring means taking steps to produce the commission of an offence by another. Here the other party committed no offence because she was innocent, so the better analysis is principal liability through an innocent agent, not procuring.
Ruled out by: The friend knew nothing of the pesticide, so no principal offence was committed for the woman to procure; her liability is as principal through an innocent agent.
Attorney General's Reference (No 1 of 1975) [1975] QB 773 — To procure means to produce by endeavour, setting out to see that the offence happens.
E
Surface reading
The woman and the friend are joint principals, because both were present and both brought about the death.
Joint principals are those who together perform the actus reus with the necessary mens rea. The friend had no mens rea at all, so she is not a principal, whether or not she was present.
SQE Criminal Law, 11.2 (Table 11.1) — Joint principals are two or more people who perform the actus reus of an offence together with the required mens rea.
Where candidates lose marks in Criminal Liability
Foresight of death or serious injury as a virtual certainty is evidence from which a jury may find intention (R v Woollin); it is not intention in itself.
Voluntary intoxication is no defence to an offence of basic intent, though it can show that a specific intent was not formed (DPP v Majewski).
In self-defence the force is judged on the facts as the defendant honestly believed them, even if the belief was unreasonable — but not a mistake caused by voluntary intoxication (Criminal Justice and Immigration Act 2008, s 76).