Criminal Law Package
HOMICIDE
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Generally – death of human being in circumstances where death can be attributed to
the conduct of 1+ humans or corporation.
3 elements: 1) victim must be human being (a fetus cannot be murdered while
unborn); 2) death must be caused through act or omission of 1+
humans/corporation; 3) must occur during the Queen’s peace
Murder
Common law offence; amended by HA 1957 (s1 removed constructive malice except for
GBH).
AR – homicide
MR – intent to cause death or GBH.
Relevant cases
- Cunningham [1982] AC 566: upheld that MR of murder is intent to kill or cause GBH.
- Steane [1947] KB 997: prosecution bears the burden of proving the specific intent
required by the definition of the offence.
- Woollin [1999] 1 AC 82: Lord Craighead - “where the charge is murder and in the rare
cases where the simple direction is not enough, the jury should be directed that they
are not entitled to infer the necessary intention, unless they feel sure that death or
serious bodily harm was a virtual certainty (barring some unforeseen intervention)
as a result of the defendant's actions and that the defendant appreciated that such
was the case.
- Matthews and Alleyne [2003] EWCA Crim 192: Woollin test is an evidential rather
than substantial rule of law. Judges ought to instruct jurors that they may interpret
defendant’s appreciation of the virtual certain consequence of death as evidence of
intention, but are not obliged to do so as Woollin does not substantively define a form
of intention.
- Moloney [1985] AC 905: Lord Bridge:
- Where specific intent is necessary (as in murder) the probability of the
accused having foreseen the consequences must be little short of
overwhelming if the intent is to be established.
- Judges should avoid elaboration or paraphrase of what is meant by intent and
leave it to the jury’s good sense to decide whether D acted with the necessary
intent.
- In rare cases where it is necessary to direct by reference to foresight of
consequences, they should be invited to consider 1) was death or really
serious injury in a murder case (or whatever relevant consequence must be
proved to have been intended in any other case) a natural consequence of the
defendant's voluntary act? 2) did the defendant foresee that consequence as
being a natural consequence of his act? The jury should then be told that if they
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answer yes to both questions it is a proper inference for them to draw that he
intended that consequence."
DPP v Smith (1961) D could be presumed to have intended to cause death/GBH if a
reasonable person, placed in the same situation as D and with D’s knowledge of the
surrounding circumstances, would have foreseen the causing of death/GBH to V as a
natural and probable consequence of her conduct.
- OVERRULED BY WOOLLIN and S.8 CJA 1967 (jury shall not be bound in law to
infer based on foresight of natural/probable consequence; should decide by
reference to all the evidence and inferring as appear proper in the
circumstances).
R v Cox [1992] medical professionals held to have unlawfully killed their patient if
they did a positive act to bring about their death. In this case a doctor administered
potassium chloride to patient to hasten terminal patient’s death because he thought
it was in her best interests to die. Convicted with attempted murder as body was
cremated before cause of death could be conclusively determined.
Thabo Meli (1954): Defendants planned to murder victim and make it look like an
accident. They beat victim in a hut and thinking he was dead left him outside and
threw him off a cliff where he ultimately died of exposure. Argued that AR and MR did
not coincide – no intent when then the actual fatal act happened since they thought it
was a corpse, and no AR when they had the intent to kill. Convicted of murder; held
that the act of beating him and throwing him off the cliff was a continuing act. The AR
of causing death started with the victim being struck on the head and continued until
he died of exposure. Sufficient for prosecution to establish that at some time during
the chain of events the defendants had acted with the necessary MR.
Voluntary Manslaughter – Loss of Self Control
S.54 and 55 of the Criminal Justice Act 2009.
LOSC operates as a partial defence to murder.
Requirements:
1) D must actually lose self-control because of a triggering event
2) The triggering event must be a qualifying one
3) The loss of self-control must be objectively understandable – a normal person of D’s
sex and age and with a normal degree of tolerance and self-restraint would have
lost control in D's circumstances.
Regarding requirement 1):
- ‘actual loss of self-control’ not “legislatively defined, but interpreted judicially as
involving D’s loss of ability to maintain his actions in accordance with considered
judgement or where he had lost normal powers of reasoning” (Jewell 2014)
Regarding requirement 2):
- Qualifying trigger one or both of:
i)
Fear of serious violence from V against D or another identified person
ii)
Sense of being seriously wronged by things done or said, which
a) constituted circumstances of an extremely grave character and
b) caused D to have a justifiable sense of being wronged.
- Sexual infidelity cannot itself constitute a qualifying trigger, but can be considered as
contextual information as part of the totality of evidence in determining whether
there was a loss of self-control as required by the partial defence.
- So, whether D has a sense of being seriously wronged is subjective, while whether the
circumstances were extremely grave and whether D’s sense of being seriously
wronged was justifiable is to be evaluated objectively.
- If D intended that his actions would provide him the opportunity to use violence (by
intentionally inciting a qualifying trigger for that purpose) then the qualifying trigger
will not operate.
- The mere fact that D is looking for trouble/provokes violence per se does not
disqualify the trigger. (Dawes).
- The second type of qualifying trigger doesn’t mention V – i.e. the things done or said
don’t have to be done or said by V?
Regarding requirement 3):
- Objective standard: remove all circumstances whose only relevance to D’s conduct is
that they bear on his general capacity for tolerance and self-restraint. Question is
whether a normal person of D's sex and age, with a normal degree of tolerance and
self-restraint," would have lost control in D's circumstances.
- Sexual infidelity can be considered under this heading.
Raising the defence:
- Judge must leave defence to jury even if D has not raised it or given any evidence of
LOSC, but only if sufficient evidence is adduced to raise an issue with respect to each
of the LOSC components on which a jury could reasonably conclude it applies.
- *** if left to jury, it is assumed met until proven otherwise.
Relevant cases:
- Martin (2017): Court of Appeal indicated that a panicked, scared response to
another’s aggressive act was not per se indicative of loss of control.
- Clinton (2012): although sexual infidelity could not itself constitute a qualifying
trigger, but might properly be taken into consideration where it was integral to the
facts as a whole, as one of a number of factors and background context which
contributed to the defendant’s loss of control. ‘Things said’ for qualifying trigger
include admissions of sexual infidelity, true or untrue, and reports by others of sexual
infidelity.
- Asmelash (2013): voluntary consumption of alcohol is not something which can be
considered as circumstances to be taken into account in the context of loss of selfcontrol. However, drunkenness does not deprive one of the defence.
- Ahluwalia (1992): concerned old law of provocation. The law as it stood required
there to be a sudden and temporary loss of self-control. Held that although this was
still good law, in the case of abused wives, the harmful act is often a result of a
“slowburn” reaction, rather than immediate loss of self-control, and thus that the
longer the delayed reaction of provocation and the stronger the evidence of
deliberation, the less likely it becomes for the defence to succeed, but a slowburn
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reaction does not preclude the. Also, planning/premeditation need not disqualify
leaving the defence to the jury – D had waited until husband fell asleep, and then set
the bed alight. Ultimately D’s appeal on DR grounds was successful.
Dawes (2013): the fact that D was behaving badly and looking for/provoking trouble
does not per se necessarily lead to the disapplication of the qualifying trigger or
disqualification of the defence. In this case it was held that there was insufficient
evidence that D had incited the qualifying trigger by attacking his wife’s lover (which
would have disqualified the defence), but also insufficient evidence that there was
any LOSC at all to justify the judge’s leaving it to the jury.
Gurpinar (2015): Court of Appeal was asked to consider whether LOSC encompassed
a loss of temper and whether LOSC had to be total; declined to answer as these issues
were outside scope of the facts and the question of whether there had been a LOSC
was case-specific and fact-sensitive.
Thornton (1996): (Concerned old defence of provocation) Premeditation need not
disqualify the defence or leaving it to the jury. D declared her intention of killing her
brutal husband, went into another room to obtain and sharpen a knife, then returned
and when he made another comment she stabbed him. Also the couple’s entire history
of marital discord could be considered under aspect 3), but under the new law her
having battered woman’s syndrome would have to be excluded insofar as it relates to
her general powers of self-control/restraint.
Mohammed (2005): concerned old defence of provocation. Muslim father found
daughter in bed with a man; he killed her by stabbing 19 times. Question of whether
it was a qualifying trigger given his devout faith (honour killing) not raised, but he
was convicted of murder regardless. Prosecution brought evidence to show he was a
man of violent disposition and that this was a case of lost temper not loss of selfcontrol.
Voluntary Manslaughter – Diminished Responsibility
S.2 of Homicide Act 1957; referenced in sec 52 in CJA 2009.
Operates as partial defence to murder.
D not to be convicted as principal or secondary of murder if he was suffering from an
abnormality of mental functioning which:
a) Arose from a specified medical condition
b) Substantially impaired D’s ability to do one or more of the things mentioned in
subsection 1A:
(1A): i) to understand the nature of D’s conduct
ii) to form a rational judgement
iii) to exercise self-control
c) Provides an explanation for D’s acts and omissions in doing/being a party to the
killing (i.e. if it causes or is a significant contributory factor in causing D to carry out
the conduct)
- Burden of proof placed on defence; standard is balance of probabilities
- Need substantial impairment, not necessarily a complete impairment.
Relevant Cases
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R v Dowds (2012): upheld well-established rule from previous statutory formulation
that voluntary acute intoxication (from alcohol or otherwise) was not capable of
founding the partial defence of diminished responsibility.
R v Golds (2016): ‘substantial’ in context of DR (condition b)) means ‘important or
weighty’ and not ‘present rather than illusory or fanciful/having some substance’.
Triumph for traditional English legal principle of ‘ordinary language law’ – i.e. giving
words their ordinary meaning with control over the upshot of this concept in the
hands of juries.
Brennan (2014): on undisputed psychiatric evidence, D suffered from schizotypal
disorder and had a severely traumatic childhood. Murder for ritualistic killings
substituted for manslaughter on grounds of partial DR defence. Judge noted 2
potentially conflicting principles: 1) criminal trials are decided by juries, not experts,
and 2) juries must base their conclusions on evidence. Thus the trial judge held that
“a charge of murder should not be left to the jury if the trial judge’s considered view
is that on the evidence taken as a whole no properly directed jury could properly
convict of murder.”
Blackman (2017): D killed a prisoner while serving in Afghanistan. Conviction for
murder substituted for manslaughter on grounds of DR due to DSM-recognized
Adjustment Disorder and the severe (exceptional) stressors of his war environment.
Involuntary Manslaughter – Unlawful Act/Constructive Manslaughter
Common law crime.
Requires:
i)
A criminal act which causes death. (Not an omission – Lowe 1973).
ii)
An act which is criminal per se
iii)
An act which is dangerous.
Regarding i):
- Act, not omission – Lowe 1973. D found to have wilfully neglected child, who died for
lack of medical treatment; judge drew distinction between wilful neglect and parent
striking a fatal blow to a child. D not convicted of constructive manslaughter.
- The act need not be directed at the ultimate (i.e. killed) victim (Larkin 1942, AGR 3
1994, Mitchell 1983) or a person (Goodfellow 1986)
Regarding ii):
- All necessary elements of the criminal act must be present (Lamb 1967).
Regarding iii):
- Dangerousness: Church (1965) test
- Objective: the criminal “act must be such that all sober and reasonable people
would inevitably recognize must subject the other person to at least the risk
of some resultant harm albeit not serious harm.”
- Property of dangerousness need not be perceived by D.
- need not establish that ordinary person would foresee the risk of the type of harm
suffered by V, just that some harm would have been foreseen.
- Danger in question need not relate to a risk of death or even GBH, the risk of minor
physical harm is sufficient.
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Fright per se (i.e. short of psychiatric injury) not a form of harm within Church
(Dawson 1985).
Ordinary person is to be invested with the knowledge available to D at the time of his
act, no less, no more (Dawson, 1985).
Where the victim was perceived by V, whether the victim belongs to a class of people
susceptible to the risk of physical harm from D’s action is something the ordinary
person would be held to know (Watson 1989).
Relevant Cases
- Lowe (1973): for CM there must be an unlawful act. The offence could not be
committed by an omission. D was wilfully neglectful to her child in not getting
obviously needed medical treatment, but judge (Phillimore LJ) held that there was a
sharp distinction between death resulting from this type of wilful neglect and the
positive fatal act of striking a blow on a child.
- Lamb (1967): case of horseplay involving a gun but no assault. What is required is an
act that is criminally unlawful. Furthermore constructive manslaughter could not be
established unless prosecution proves at least the element of intent necessary for the
act to be unlawful. The defendant had pulled the trigger of the gun unaware of its
technical workings (i.e., that pulling the trigger would rotate the chamber and cause
a bullet to be fired) or any intent to fire a bullet.
- Church (1966): Test for dangerous: is throwing body into river dangerous? Yes. The
unlawful act must be such as all sober and reasonable people would inevitably
recognise must subject the other person to, at least, the risk of some (physical) harm
resulting therefrom, albeit not serious harm.
- DPP v Newbury and Jones (1977): A defendant is guilty of manslaughter if it is proved
that he intentionally did an act which was unlawful and dangerous, and that act
caused death; it is unnecessary that the defendant had known that the act in question
was unlawful or dangerous.
- Dawson (1985): Regarding test for determining whether or not the unlawful act is
dangerous: the reasonable man must be taken to know all and only the facts and
circumstances which the defendant knew. The victim (60-year-old with unknown-tothe-victim heart disease) was not of a class of persons that the reasonable man would
know to be at risk of physical harm from the defendant’s act of using an imitation
firearm. Regarding harm, emotional disturbance alone is not sufficient to constitute
harm. The defendant and two other men carried out an attempted robbery at a petrol
station. The cashier at the petrol station was a 60-year-old man who, unknown to the
defendants, suffered from a heart disease. Dawson had pointed a replica handgun at
the victim and his partner had banged a pick-axe handle on the counter. Money was
demanded, but the victim pressed the alarm button and the defendants fled empty
handed. Shortly afterwards the victim collapsed and died from a heart attack.
- Watson (1989): The unlawful act of burglary does not end with the offender crossing
the threshold of the premises, so that if in the course of the burglary he becomes
aware of the presence of a person of particular vulnerability, and the fact of his
presence causes that person's death, he may be guilty of manslaughter. The victim
was an 87-year-old man and thus of a class of persons that the ordinary person would
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realize is at risk of harm from the disturbances caused by burglary. Conviction was
overturned on additional facts unrelated to the above.
Ball (1989): appellant loaded shotgun with what he thought was a blank cartridge,
having both blank and live cartridges in his pocket. Appeal against manslaughter
charge, on grounds that on Dawson’s reasoning his assumption that the cartridge was
a blank would have to be imputed to the ordinary person in the Church test, was
denied on the grounds that in Ball the question was one of inherent danger and thus
the situation should be appraised on basis of all the actual circumstances, not just
those known to D.
- Bad reasoning. This would have the implication that, e.g. if the box of blanks
someone bought had a live cartridge due to factory error, and the D didn’t
know, and fired it, he should also be convicted on Ball reasoning.
- The court could have distinguished from Dawson instead by pointing out that
the D knew his pocket contained both live and blank cartridges and thus that
in pulling one out blindly there was a risk that it would be live.
Andrews (1937): for constructive manslaughter there has to be an underlying crime
intrinsically criminal and not just "a lawful act with a degree of carelessness which
the legislature makes criminal"
Larkin (1942): defendant was waving a razor around with the intention to scare his
mistress’s lover. He claimed that his mistress, drunk, and blundered, falling against
the razor and was killed when the razor cut her throat. Conviction upheld as the
unlawful act was the assault against the mistress’s lover. It was a dangerous act and
didn’t have to be directed at the ultimate victim.
AG’s Ref. 3 of 1994: For constructive manslaughter to be proven, it is not necessary
for the defendant to be a human (so that actus reus for murder/manslaughter can be
made out), as all that needs to be proven is the defendant acted to harm the mother,
and his act led to the death of the baby. Foetus, no matter how late, is not a human
while in the womb.
Defendant stabbed girlfriend - 17 days later, gave birth to baby - baby died 121 later
due to premature birth and complications - baby was not legal person at the time of
stabbing - no intention of killing baby, but intention to harm mother. Charged with
manslaughter of baby, not murder.
Mitchell (1983): D tried to skip the queue at the Post office. He got in a fight with an
old man who took issue; pushed old man who fell back into other people in the queue
including an old lady who fell and broke her leg, and ultimately died. D convicted of
manslaughter of the old woman; held that there is no requirement that the unlawful
act be directed at the victim.
Goodfellow (1986): defendant wanted to move from his council accommodation
where he was being harassed. He set fire to his house to make it look like it had been
petrol bombed so that he could be rehoused. His wife, son, and son’s girlfriend died
in the fire. Convicted for constructive manslaughter; no requirement that the
unlawful act be directed at the victims or at a person.
Hughes
(2013):
In
order
to
cause
death
by
driving,
an
unlicensed/uninsured/disqualified driver charged with strict liability offence under
RTA 1988 s.3B had to be shown to have done something other than simply putting
his vehicle on the road so that it was there to be struck. Some element of fault in his
driving must be present for him to have caused V’s death.
Gross Negligence Manslaughter:
Common law crime.
5 requirements:
i)
D must owe V a duty of care (a question of law for the judge, who directs jury that
a duty of care is owed if certain facts are established, the determination of which
is the jury’s job).
ii)
D must have breached the duty of care. (Decided under ordinary principles of tort
of negligence).
iii)
The negligent breach must have caused V’s death.
iv)
Jury must consider whether a reasonably prudent person would have foreseen
that the breach of duty would give rise to a serious and obvious risk of death, and
not merely a risk of serious injury or illness.
v)
The breach of duty was grossly negligent: whether D’s conduct, as regards the risk
of death, so bad in all circumstances of the case as to amount to a criminal act or
omission (Adomako test). Requires “truly exceptionally bad conduct.”
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Can result from an omission, where there was a positive duty to act on the defendant
and a duty of care owed; usually the duty of care will follow from the duty to act (e.g.
Pittwood (1902), where D had a duty to close the gate owed to his employer and a
general duty of care owed to the users of the crossing)
Re iv): “the test is objective and prospective with respect to what D knew at the time
of the breach, and not retrospective with reference to what D would have known had
an investigation been undertaken” (Simester/Sullivan’s Criminal Law).
Relevant Cases
- Adomako (1995): Upon the establishment of said breach of duty the next question is
that of establishing causation and, and if this could be so established, whether it
should be characterised as gross negligence and therefore a crime. This is ultimately
a question for the jury, having regard to the risk of death involved, asking themselves
‘was the defendant’s conduct so bad in all the circumstances that it ought to amount
to criminal?’
- Rose (2017): C.A: “the test of reasonable foreseeability simply requires the notional
objective exercise of putting a reasonably prudent professional in the shoes of the
person whose conduct is under scrutiny and asking whether, at the moment of breach
of the duty on which the prosecution rely, that person ought reasonably (i.e.
objectively) to have foreseen an obvious and serious risk of death.” So, in assessing
either the foreseeability of risk or the grossness of the conduct in question, the court
was not entitled to take into account information which would, could or should have
been available to a defendant following the breach of duty in question.
Facts – optometrist breached her statutory duty of care to examine the internal
structure of the patient’s eyes as part of a routine eye examination and consequently
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failed to identify an abnormality that ultimately led to his death. Could not be
convicted as although had a reasonably prudent professional conducted the
investigation, the abnormality would have been identified and his life likely saved, the
defendant had not done so, and thus her state of knowledge at the time of the breach
did not include knowledge of this abnormality.
Rudling (2016): D was a GP who received phone call of (child) V’s mother who
described V’s symptoms. D failed to follow up and examine the child which was
determined to be a breach of duty. If he had examined, he would have determined
that the child had a life-threatening disease and could likely have saved his life. Held
not to be guilty for GNM because at the time of the breach he hadn’t examined him
and thus the reasonably prudent person in his position would not have seen the risk
of life-threatening illness.
Winterton (2018): V died after a trench collapsed on a construction site. D was the
construction manager in charge of health and safety and breached his duty to ensure
V a safe work environment throughout construction of the trench. On the facts at the
time of the breach it was a question of when, not if, the trench would collapse and that
this was and should have been apparent to anyone. Convicted of GNM.
Jordan (1956): Exceptional medical negligence can constitute a novus actus
interviens breaking chain of causation for death. Defendant absolved of liability for
stab wound victim’s death from pneumonia because exceptional medical negligence
ruled to be the cause of death and stab wound no longer an operating cause as it was
healing.
Smith [1959]: If D’s act continues to be an operating cause of death, medical treatment
will not constitute an NAI absolving liability. D stabbed another soldier during a fight
in the barracks. Medical treatment was palpably wrong, and V died of punctured lung
which was not properly diagnosed. Had it been, he would not have died, but D’s act
was an operating cause of death.
Cheshire (1991): Intervening medical treatment could only be regarded as excluding
the responsibility of the defendant if it was so independent of the defendant's act and
so potent in causing the death, that the jury regard the defendant's acts as
insignificant. Having shot the defendant originally is not insignificant. D shot V who
was operated on and developed breathing difficulties after tracheotomy and died as
a result of the complications from the tracheotomy. Wounds were healing and no
longer life-threatening, but V’s having been shot was not insignificant in contributing
to his eventual death.
Evans (2009): By supplying herion to V, her half-sister, D contributed to the creation
of the clearly life threatening state of affairs (overdose), and thus had a duty to take
action to reduce the risk of death. Following Miller, "when a person has created or
contributed to the creation of a state of affairs which he knows, or ought reasonably
to know, has become life threatening, a consequent duty on him to act by taking
reasonable steps to save the other's life will normally arise."
COMPARE: Kennedy (2007): V died of heroin overdose after freely and voluntarily
administering heroin given to him by D at V’s request, and after D left the room. D was
held not guilty of manslaughter as the person to whom the drug was supplied freely
and voluntarily self-administered it, which constituted an NAI breaking chain of
causation.
NON-FATAL OFFENCES AGAINST THE PERSON
Common assault
Made into a summary offence s.39 Criminal Justice Act 1988
AR: D caused V to apprehend imminent unlawful force.
MR: D intended that or was (subjectively) reckless as to whether the victim would
apprehend imminent unlawful force.
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Words and silence can constitute assault (Ireland 1998)
Imminent = not far in the future; exact time not certain. Obiter in Ireland (1998) says
“within a minute or two” may be sufficient.
Must be a fear/apprehension of imminent violence/attack, not an imminent
fear/apprehension of harm in the future.
Relevant cases
- Ireland (1998): D made large numbers of silent calls to three women, who suffered
from psychological harm. Question raised is whether silence could suffice for a charge
of assault, and whether psychiatric harm is sufficient for ABH. Court held that silence
causing psychiatric injury could constitute assault occasioning ABH under s.47 OAPA
1861. Silence could act as a threat where it was done in a way which could induce fear
in the victim; where the victim is afraid that the threat will be acted on in the near
future, this could amount to an assault. Proximity of the Defendant to the victims is
irrelevant to this determination as fear could be induced equally easily over the
telephone as in person.
- Venna (1975): MR of assault requires that the defendant actually foresaw the
apprehension of imminent unlawful violence, not that he should have or could have.
i.e., MR is subjective recklessness, not objective.
- Fagan v Metropolitan Police Commissioner (1969): suggested that an assault requires
proof of positive act; cannot be committed by a mere omission. However, in this case,
battery was done by making the defendant’s failure to get off the police officer’s foot
part of a continuing act of driving on to his foot.
- Logdon v DPP (1976): D showed the victim a gun and told him he would keep V
hostage. Conviction for assault upheld despite D’s argument that it was an empty
threat because in doing so he had caused V to apprehend imminent violence.
- R (Kracher) v Leicester Magistrates’ Court (2013): conditional threat: ‘Fuck off. If you
come round the back I will beat you up’ held to be an assault despite the threat being
conditional.
cf. Blake v Barnard (1840): Conditional threat - words "shut up or I will blow your
brains out" whilst holding a gun to someone's head does not constitute assault: V was
able to negate the violence. Seems overruled/inconsistent, as there would have been
an apprehension of imminent violence
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Tuberville v Savage (1669): distinguish conditional threat from words that negate a
threat. Defendant while holding a sword said, “if it were not assize time, I would not
take such language.” D was making it clear that he was not going to attack victim,
though if conditions had been otherwise, he would have had the intention to. Held not
to be an assault because his words negated what otherwise could have been a threat.
Common Battery
Made a summary offence under s.39 Criminal Justice Act 1988
AR: D unlawfully touched or applied force to the victim
MR: D intended or was reckless as to the unlawful touching or applying force to the victim.
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Can be carried out via object (Fagan 1969 [car], Smith 1866 [spit], Savage 1992
[beer/glass]) or through clothes (Thomas 1985)
Can be carried out by omissions, in a sense
- Fagan – there was a positive initial act of driving onto the policeman’s foot; the
‘omission’ of failing to get off was held to be part of that continuing act
- DPP v Santana Bermudez – D had created a danger in keeping the syringe on
her and exposed the officer to it through her omission to tell
Battery can be carried out indirectly (Martin 1891 [barred exit], DPP v K 1990 [acid
in hand-dryer], Haystead v Chief Constable of Derbyshire [causing woman to drop
baby])
Needs to be physical force applied to victim – Lord Steyn in Ireland said that it could
not constitute a battery, if anything it was assault, because the silence over the phone
was too far from the ordinary meaning of battery to be tenable.
Everyday touchings (e.g. accidental contact on a crowded tube) not batteries insofar
as “they are impliedly consented to by all who move in society and so expose
themselves to the risk of bodily contact” and/or are an necessary/unavoidable part
of everyday life, within “the generally acceptable standards of contact” (Collins v
Wilcock )
Most supported view in case law is that the touching does not need to be hostile, rude,
or aggressive – Faulkner v Talbot. In Brown (1994) Lord Jauncey suggested that
battery must involve hostility, but in the context he seems to have interpreted ‘hostile’
as ‘unconsented to’, not necessarily aggressive.
Relevant Cases
- Fagan (1969): battery was carried out via intermediary of car, as part of a continuing
act of driving onto the police officer’s foot (and refusing to get off promptly once
aware)
- Smith (1866): battery carried out when D spat on V
- Thomas (1985): the weight attached to the right not to be touched without consent is
serious enough to justify intervention of the criminal law. Touching of someone’s
clothes (i.e. while they are wearing them) without their consent can constitute
battery. Battery need not be harming of the body; includes invasion of personal space,
and can take place even when the victim did not feel the touching.
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Martin (1881): indirect application of force was sufficient under s.20 (and, a fortiori,
for battery) – D placed iron bar across exit of a theatre with intention of obscuring
exit and shouted ‘fire’; several people were severely injured.
DPP v K (1990): D put acid in a hand-drier which splashed upon another student. Held
that this could constitute battery.
DPP v Santana Bermudez (2003): D had needle in pocket; police who planned to
search her clothing asked if he had any sharp objects, which D denied. Officer was cut
by a needle in D’s pocket; D charged with battery: "where someone creates a danger
and thereby exposes another to a reasonably foreseeable risk of injury which
materialises, there is an evidential basis for the actus reus of an assault occasioning
actual bodily harm.”
Haystead v Chief Constable of Derbyshire (2000): D struck woman who was holding a
baby; the woman dropped the baby as a result of the blows. D convicted of battering
the baby – caused unlawful force to be applied to baby when it hit the floor.
Collins v Wilcock (1984): cops suspected woman was soliciting for prostitution; V
refused to answer questions and walked away; one cop grabbed her arm, and V
responded by scratching the officer. V was convicted of assaulting a police officer in
execution of duty. Appealed on basis that cop was not acting in execution of her duty
and that the cop had battered her. Held that cop was not proceeding to arrest V when
she grabbed V and thus not acting in execution of duty but battering V, touching her
beyond the generally acceptable conduct of touching a person to engage her attention.
Assault Occasioning ABH – S.47
Statutory – Section 47 of the Offences Against the Person Act 1861
AR: D must commit an assault or battery which causes the victim to suffer actual bodily harm
MR: D must intend or be reckless as to the assault or battery. No need to show that D intended
or foresaw ABH specifically (Savage and Parmenter 1992).
Meaning of ABH:
- any hurt or injury calculated to interfere with the health or comfort of the victim
(Donovan 1934); need not be permanent but it should not be so trivial as to be wholly
insignificant (Chan-Fook 1994).
- Bruisings, grazes, causing of tenderness (R v Reigate Justices ex p Counsell [1984]),
temporary loss of consciousness (T v DPP 2003), non-consensual cutting of hair (DPP
v Smith 2006 – D cut V’s ponytail off).
- ABH need not require pain – harm included hurt or damage, so cutting off a ponytail
counts. Herring: if a small piece of hair had been cut off, this would likely just
constitute a battery.
- Psychological injuries could be included under ABH, but only if they were medically
recognized conditions involving more than fear, panic, or distress (Chan-Fook)
Meaning of ‘occasioned’:
- Occasioned means ‘caused’ (Roberts 1972)
- The ABH must be occasioned by the assault or battery of the defendant.
- Test (Roberts 1972): not whether D actually foresaw the conduct of the victim which
resulted in the ABH, but whether that conduct could have reasonably been foreseen
as the consequence of what D was saying or doing.
Correspondence principle
- Adherents claim it is wrong to have an offence where the defendant is guilty even
though he did not intend/foresee the actus reus.
- MR requirement for s.47 infringes the correspondence principle.
Relevant Cases
- Roberts (1972): Proper test of causation for assault occasioning ABH not whether D
actually foresaw the conduct of the victim which resulted in the actual bodily harm,
but whether that conduct could have reasonably been foreseen as the consequence of
what D was saying or doing. Occasioned = caused. Assault (apprehension of unlawful
force) which results in ABH being suffered can be assault occasioning ABH.
- Donovan (1934): Swift J: ABH = any hurt or injury calculated to interfere with the
health or comfort of the victim
- Chan-Fook (1994): the hurt or injury need not be permanent, but it should not be so
trivial as to be wholly insignificant. ABH can include psychiatric injury where this is
proved by medical evidence, but it does not include emotions, such as fear or panic,
nor states of mind that were not themselves evidence of some identifiable clinical
condition. Any allegation of actual bodily harm based on psychiatric injury, which was
not admitted by the defence, should be supported by appropriate expert evidence. In
the absence of such evidence, the question of whether an assault had occasioned
psychiatric injury should not be left to the jury and there should be no reference to
the victim's mental state following the assault unless it was relevant to some other
aspect of the case.
- R v Reigate Justices ex p Counsell (1984): ABH includes, inter alia, bruisings, grazes,
causing of tenderness
- T v DPP (2003): ABH is to be accorded its everyday meaning. Loss of consciousness
amounts to an impairment of sensory function. Therefore, temporary loss of
consciousness constitutes ABH.
- DPP v Smith (2006): non-consensual cutting off of hair constitutes ABH (D cut V’s
ponytail off). No need to show pain; any hurt or damage to a part of the body may
count as relevant harm for ABH.
- Burstow (1998): following dicta in Chan-Fook, psychiatric injury can amount to
bodily harm under the OAPA 1861.
- AG’s Ref (No. 6 of 1980): where the harm caused is ABH or worse, consent does not
provide a defence (i.e., the victim cannot consent to ABH or worse) unless if falls
within one of the established categories of exception: properly conducted games and
sports, lawful chastisement, reasonable surgical interference, dangerous exhibitions,
cosmetic enhancements, or horseplay.
-
Boyea 1992: If ABH was a foreseeable result of the D's actions, victim's consent would
not provide defence. However, if ABH was not a foreseeable result, consent could
defend even if ABH actually resulted. D inserted hand into V's vagina and twisted it.
Judge directed consent irrelevant if actions likely/intended to harm. On appealAssault intended or likely to cause harm and is indecent is an offence irrespective of
consent, provided the injury is not merely 'transient or trifling.'
- Wilson [1997]: appellant branded his initials on his wife’s buttocks with a hot knife at
her request. Her skin became infected and she sought medical treatment; doctor
reported the matter to the police and the husband was charged with ABH under s.47.
Appeal allowed; distinguished from Brown based on:
- 1) where public interest is concerned (as was considered in Brown),
consensual activity between husband and wife in the privacy of the
matrimonial home is not a proper matter for criminal prosecution
- 2) Brand is similar to a tattoo which in Brown was said to be something to
which one can consent.
Richardson (1999): Dentist with suspended licence continued to practice without
informing her patients. She was sued for assault occasioning ABH. It thus fell to be
determined by the Court of Appeal whether a deception as to a person’s attributes, in this
case their qualifications, would suffice to negative the consent of the deceived party. Held
that fraud only negative consent in circumstances where the victim was deceived as to
either the nature of the act performed or the identity of those performing it. Deception as
to the identity of the person did not extend to the person’s qualifications or attributes. The
lesser deception occurrent here might suffice for damages in tort, however.
S.20 Malicious Wounding/Inflicting GBH
S.20 Offences Against the Person Act 1861
AR: Unlawfully wound or inflict GBH on another person.
MR: Intention or recklessness as to the causing of at least some harm albeit not serious harm.
-
-
‘Unlawful’ – i.e., not in lawful self-defence or prevention of crime or under the list of
established exceptions set out in AG’s Ref 6/1980.
Wound – a wound exists where there is a break in the continuity of (whole of) the
skin (Moriarty v Brookes 1834). An internal rupture of blood vessels will not
constitute a wound.
GBH – really serious harm (DPP v Smith 1961).
- If victim is particularly vulnerable (e.g. infant, pregnant woman, elderly
person) the jury is entitled to take that into account when assessing the
seriousness of the injury (Bollom 2004).
- The question of seriousness is to be objectively assessed according to the
ordinary standards of usage and experience and upon all the evidence, not
subjectively from victim’s standpoint (Brown and Stratton 1977)
- Includes e.g. broken jaw (Billinghurst 1978), broken nose (Saunders 1985),
brain damage (Ratnasabapathy 2009), and serious burns (Aitken 1992)
- Can include psychiatric injury (Burstow 1997, applying dicta in Chan-Fook)
-
Inflict – includes direct and indirect application of force (R v Wilson 1984); in the
context of psychiatric injury, simply means cause (Burstow 1997).
No need for prosecution to show that D intended or was reckless as to the causing of
GBH (Savage 1991); subjective recklessness applies (Parmenter 1991)
Relevant Cases
- C v Eisenhower (1984): wound means a break in the continuity of the whole skin;
epidermis and dermis. Internal rupture of blood vessels will not constitute a wound.
- Golding (2014): jury is to decide whether the harm is GBH based on “contemporary
social standards.” It does not need to be dangerous/life-threatening or permanent to
constitute GBH.
- Grundy (1989): jury is to consider the totality of injury to the victim in determining
whether GBH has been inflicted – i.e. small wounds can cumulatively lead to serious
injuries.
- ALSO: re: attempts/complicity: A person can withdraw until the acts of the
principal offender reaches the stage of an attempt. Once that act has started
and the person joins, he is secondarily liable for the totality of the offence.
- Bollom (2004): The Court held on appeal that a jury should be able to take into
account the unique circumstances of a victim and case in elevating a charge from ABH
to GBH. The mere fact that the same injuries on a healthy adult would be less serious
does not alter the fact that in determining the appropriate charge, due regard must
be had for the actual harm suffered by the victim. Per Fulford J: ‘We have no doubt
that in determining the gravity of these injuries, it was necessary to consider them in
their real context.’ HOWEVER, the context is taken into account in a sense objectively
– i.e. what matters isn’t how intensely the victim felt the injury, but how serious the
injury was to the victim qua person within that particular context.
- Rushmore (1992): Intent/Cunningham subjective recklessness as to causing of harm
sufficient for s.20. Breaches correspondence principle; Practical rationale –
impossible to retroactively calculate what the intended level of harm was.
- Brown (Anthony) [1993]: group of men consensually engaged in BDSM activities
which resulted consensually in GBH. None of the participants brought charges; the
men were recorded in a video operation by the police. Question at issue was whether,
in a case where A causes B ABH or GBH in a sado-masochistic encounter, prosecution
has to prove B’s lack of consent before charging A under s.47 and s.20.
- Held (3/2): no. Even with consent, unless the activity is lawful, the consent of the
victim to deliberate infliction of serious (or actual) bodily injury on him does not
provide the perpetrator any defence. Serious violence is not made lawful merely
because it enables the perpetrator and victim to achieve sexual gratification,
notwithstanding that those who suffered positively welcomed it. Also justified with
reference to public health concern.
- Majority – think they are being asked to decriminalise BDSM (i.e., that BDSM is illegal
to begin with given the infliction of ABH and GBH it involves).
- Lord Templeman: "Society is entitled and bound to protect itself against a cult
of violence. Pleasure derived from the infliction of pain is an evil thing. Cruelty
is uncivilised. I would answer the certified question in the negative and
dismiss the appeals of the appellants against conviction."
-
-
-
-
"What the appellants are obliged to propose is that the deliberate and painful
infliction of physical injury should be exempted from the operation of
statutory provisions the object of which is to prevent or punish that very thing,
the reason for the proposed exemption being that both those who will inflict
and those who will suffer the injury wish to satisfy a perverted and depraved
sexual desire. Sadomasochistic homosexual activity cannot be regarded as
conducive to the enhancement or enjoyment of family life or conducive to the
welfare of society. A relaxation of the prohibitions in sections 20 and 47 can
only encourage the practice of homosexual sadomasochism and the physical
cruelty that it must involve (which can scarcely be regarded as a "manly
diversion") by withdrawing the legal penalty and giving the activity a judicial
imprimatur."
Minority dissenting – believe they are being asked to criminalise BDSM, something
which though arguably morally repugnant is a matter of private morality not fit for
state criminal intrusion.
- Lord Mustill: "The issue before the House is not whether the appellants'
conduct is morally right, but whether it is properly charged under the Act of
1861. When proposing that the conduct is not rightly so charged I do not invite
your Lordships' House to endorse it as morally acceptable. Nor do I pronounce
in favour of a libertarian doctrine specifically related to sexual matters. Nor in
the least do I suggest that ethical pronouncements are meaningless, that there
is no difference between right and wrong, that sadism is praiseworthy, or that
new opinions on sexual morality are necessarily superior to the old, or
anything else of the same kind. What I do say is that these are questions of
private morality; that the standards by which they fall to be judged are not
those of the criminal law; and that if these standards are to be upheld the
individual must enforce them upon himself according to his own moral
standards, or have them enforced against him by moral pressures exerted by
whatever religious or other community to whose ethical ideals he responds.
The point from which I invite your Lordships to depart is simply this, that the
state should interfere with the rights of an individual to live his or her life as
he or she may choose no more than is necessary to ensure a proper balance
between the special interests of the individual and the general interests of the
individuals who together comprise the populace at large. Thus, whilst
acknowledging that very many people, if asked whether the appellants'
conduct was wrong, would reply "Yes, repulsively wrong", I would at the same
time assert that this does not in itself mean that the prosecution of the
appellants under sections 20 and 47 of the Offences against the Person Act
1861 is well founded."
Also restated exception cases where consent can act as a defence to ABH/GBH:
sporting activities, dangerous exhibitions and bravado, rough and undisciplined
horseplay, medically valid surgery, tattooing and body piercing, religious flagellation,
consensual intimate acts in which one party is infected with medical condition and
victim had consented to the risk of infection.
Emmett (1999): ruling in Brown held for heterosexual couples. The defendant
appealed against conviction after being involved in sexual activity which he said was
-
-
not intended to cause harm, and were said to be consensual, but clearly did risk harm.
On the first occasion he tied a plastic bag over the head of his partner. On the second,
he
poured
lighter
fluid
over
her
and
set
it
alight.
Held: These were not acts to which she could give lawful consent, and the conviction
was upheld: ‘Accordingly, whether the line beyond which consent becomes
immaterial is drawn at the point suggested by Lord Jauncey and Lord Lowry [in R v
Brown [1994] AC 212], the point at which common assault becomes assault
occasioning actual bodily harm, or at some higher level, where the evidence looked at
objectively reveals a realistic risk of a more than transient or trivial injury, it is plain,
in our judgment, that the activities [engaged] in by this appellant and his partner went
well beyond that line. The learned judge, in giving his ruling said: ‘In this case, the
degree of actual and potential harm was such and also the degree of unpredictability
as to injury was such as to make it a proper cause [for] the criminal law to intervene.
This was not tattooing, it was not something which absented pain or dangerousness
and the agreed medical evidence is in each case, certainly on the first occasion, there
was a very considerable degree of danger to life; on the second, there was a degree of
injury to the body.’ With that conclusion, this Court entirely agrees.’
Dica (2004): D charged with two counts of inflicting GBH under s.20 on the basis
that, while knowing he was HIV positive, he had unprotected sexual intercourse
with two women who allege they were unaware of his infection and who were
ultimately infected with HIV subsequently. D maintained that both claimants were
aware of his condition and decided to engage in unprotected sex anyway. Question
for the court was whether the complainants were consenting to the risk of HIV
transmission when they consented to unprotected sexual intercourse with D. The
Court of Appeal, upholding the ideal of protecting sexual autonomy and informed
risk-taking, ruled that although just as before under the existing jurisprudence one
cannot consent to the infliction of GBH, consent to the risk of transmission through
consensual sex is a valid defence to a charge of reckless transmission. Consent to the
risk of infection, however, would not provide a defence in cases of deliberate infection
or spreading of HIV with intent to cause grievous bodily harm (cases that would be
prosecuted under section 18 of the Offences against the Person Act 1871). Based on
the existing jurisprudence (i.e. Brown) the Court found that for public policy
reasons, violent conduct involving the deliberate and intentional infliction of bodily
harm is and remains unlawful, notwithstanding that its purpose is the sexual
gratification of one or both participants.
Konzani (2005): D was HIV positive and had unprotected sex with three
complainants without informing them of his condition. Convicted under s.20;
distinguished from Dica on the grounds that the ideals of sexual autonomy and
informed risk-taking were not applicable here since the concealment of his
condition was inconsistent with autonomous consent to the risk of transmission of
the victims. Distinction was drawn between “running the risk of transmission” (i.e.
of anything) and “willingly” or “consciously” consenting to the risk of transmission
of a particular infection (as was the case in Dica) thus establishing that consent
must be informed.
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-
Kimber 1983: Court of appeal ruled that lack of consent was a definitional
requirement of assault and that, consequently, D would lack the MR for assault if he
mistakenly believed that he had V’s consent.
Barnes (2004): appellant was an amateur footballer. During a match he went in for a
tackle and seriously injured the opponent’s leg. Originally charged under s.20;
appealed. Question was, ‘when is it appropriate for criminal proceedings to be
brought when an injury occurs in the course of sport by one player to another?’ Held
that participation in sports like football involves the giving of implicit consent to a
risk of injury and even grievous bodily harm. Where an injury or act occurs that
cannot reasonably be considered to be acceptable within the play of the sport, then
there is no implicit consent to that, and the conduct will not be covered by the defence
that the act/injury falls within the scope of sport as one of the established exceptions.
In the present case the actions of the appellant could not be reasonably considered to
have gone beyond what is reasonably acceptable in sport and thus did not require
criminal intervention and thus the appeal was allowed, and the conviction quashed.
Simon Slingsby (1995): D penetrated complainant’s vagina and rectum with his
fingers and accidentally cut her with his ring. She did not notice the cuts which later
became infected, fatally. D was convicted of constructive manslaughter under s.20
and 47. Conviction overturned. Judge J held that the activity of inserting fingers into
the vagina and rectum for sexual pleasure, and indeed vigorous sexual activity, was
not in itself assault and was therefore not an unlawful act inasmuch as consent had
been obtained. The defence of consent to injury had not arisen as there was no intent
or recklessness as to causing the complainant injury. It was an accidental and
unfortunate consequence of the activity that occurred because the D happened to be
wearing a ring. Only held to be assault because an injury had occurred, but the MR
was lacking.
Gillick v West Norfolk and Wisbeck AHA (1986): Gillick competence to medical
treatment. A girl under the age of 16 had the legal capacity to consent to medical
examination and treatment, including contraceptive treatment, if she had sufficient
maturity and intelligence to understand the nature and implications of the treatment;
doctors could in exceptional circumstances therefore give contraceptive advice and
treatments to such a patient only if satisfied that she met these conditions. The rights
of parents to determine such matters ended when a child achieved sufficient
intelligence and understanding to make her own decision.
REGARDING CONSENT:
H v CPS (2010): a young student suffering from ADHD assaulted a teacher in the
playground of a school designed for students with special needs. Held that this
situation could not be compared with implied consent in sports; there are no rules in
special needs schools saying that teachers should countenance being attacked. Even
in high risk working environments like special needs schools, teachers cannot be
reasonably expected to consent to being assaulted (and to have done so simply by
virtue of having undertaken to work there).
Tabassum (2000): appellant deceived numerous women into participating into what
he claimed was a breast cancer survey. Appellant induced the women to allow him to
demonstrate how to carry out a self-examination, requiring them to remove their
clothes and allow the appellant to feel their breasts. Each victim adamantly
maintained that their consent was predicated on the belief that the appellant
possessed the qualifications he claimed to hold and that the procedure was medical
in nature. Held that consent will be negatived if a person is deceived as to the nature
or quality of the act performed, and in this case there had been no true consent as the
nature of the act consented to was fundamentally different that it rendered any
apparent consent entirely inoperative.
S.18 Wounding/Inflicting GBH with Intent
S.18 OAPA 1861.
AR: D unlawfully wounded or caused GBH to any person.
MR: D either a) intended to wound/cause GBH to any person; or
b) intended to resist or prevent the lawful apprehension of any person.
-
Technically one could s.18 oneself
Relevant cases
- Bentley (1850): no defence if D thought a lawful arrest was unlawful, but there is a
defence if the arrest was in fact unlawful.
S.23 Maliciously administering poison, etc., so as to endanger life or inflict GBH
S.23 OAPA 1861.
AR: D administered or caused to be administered or taken by V a poison, noxious, or
destructive thing. As a result, D a) endangered V’s life, or b) inflicted GBH on V.
MR: Subjective recklessness as to administration of the poison. No need to prove intent or
recklessness as to endangerment of life or infliction of GBH.
S.24 Maliciously administering poison, etc., with intent to injure, aggrieve, or annoy any
other person
S.24 OAPA 1861.
AR: D administered or caused to be administered or taken by V a poison, noxious, or
destructive thing.
MR: D was reckless as to the administration AND intended to injure, aggrieve, or annoy the
victim.
Differences between s.23 and s.24:
-
Aggravating feature in 23 is effect of the poisoning  must be GBH or life
endangerment. There need be recklessness only to the administration.
-
Aggravating feature in 24 is intent of D with respect to the result  must be intent to
injure/aggrieve/annoy the victim.
Poison/noxious substance:
i)
Intrinsically poisoning or noxious (cyanide, heroin [Cato 1976], etc.) whatever
quantity used.
ii)
Not intrinsically harmful, must be shown to have been administered in a quantity
sufficient to be harmful.
Administer:
- Kennedy (2007): supplying drug at V’s request who then freely and informedly selfadministers does not constitute administration
- Gillard (1988): spraying CS gas onto V constitutes administration. Not necessary for
substance to enter V’s body, only to have contact with V’s body.
Threats to Kill
S.16 OAPA 1861
AR: D unlawfully makes a threat to kill another or a third party
MR: Intent that the other person (to whom the threat is made) fear that the threat would be
carried out.
Sexual Offences
Rape
Statutory - S1 Sexual Offences Act 2003
AR: D penetrated the vagina, anus, or mouth of V with his penis and V did not consent to the
penetration.
MR: D intended the penetration and did not reasonably believe that V consented to the penetration.
-
Reasonability of D’s belief in consent to be determined with regard to all the circumstances,
including steps D has taken to ascertain whether V consents.
Only men can rape; both men and women can be raped
After 1994 amendments to SOA 1956, husband can rape wife
Penetration is a continuing act from entry to withdrawal  can rape after revocation of initial
consent if not withdrawn within a (common-sense) reasonable time
Consent:
- S.74 SOA 2003: A person consents if he agrees by choice and has the freedom and capacity to
make that choice
Determining consent/lack of consent:
1) Is it a case where V is conclusively presumed to not have consented?
If YES: V did not consent.
If NO: go to 2).
2) Is it a case where there is an evidential presumption that V did not consent?
If YES: is the presumption rebutted?
If NO: V did not consent.
If YES: go to 3).
3) Did V consent under the s.74 meaning?
Yes/No
S.75 SOA 2003: Evidential Presumptions about Consent
- If in proceedings for rape (s1), assault by penetration (s2), sexual assault (s3), and causing
sexual activity without consent (s4)) it is proven that D did the relevant act, the necessary
circumstantial elements (other than consent) for the offence existed, and D knew that those
circumstances existed, then V is taken NOT to have consented to the relevant act UNLESS
sufficient evidence is adduced to raise an issue as to whether V consented, and D is to be taken
NOT to have reasonably believed that the complainant consented UNLESS sufficient evidence
is adduced to raise an issue as to whether D reasonably believed it.
- The circumstances are:
a) any person was, at the time of the relevant act or immediately before it began, using
violence against the complainant or causing the complainant to fear that immediate
violence would be used against him;
b) any person was, at the time of the relevant act or immediately before it began, causing
the complainant to fear that violence was being used, or that immediate violence
would be used, against another person;
c) the complainant was, and the defendant was not, unlawfully detained at the time of
the relevant act;
d) the complainant was asleep or otherwise unconscious at the time of the relevant act;
e) because of the complainant’s physical disability, the complainant would not have
been able at the time of the relevant act to communicate to the defendant whether the
complainant consented;
f) any person had administered to or caused to be taken by the complainant, without
the complainant’s consent, a substance which, having regard to when it was
administered or taken, was capable of causing or enabling the complainant to be
stupefied or overpowered at the time of the relevant act.
- In subsection a) and b), the reference to the time immediately before the relevant act began
is, in the case of an act which is one of a continuous series of sexual activities, a reference to
the time immediately before the first sexual activity began.
S.76 SOA 2003: Conclusive Presumptions about Consent
-
If in proceedings for rape (s1), assault by penetration (s2), or sexual assault (s3) the AR (act
and circumstances other than consent) is proven to have been done intentionally by D, then
if a) or b) are met, it is to be conclusively presumed that V did not consent, and D did not
believe V consented:
a) D intentionally deceived V as to the nature/purpose of the relevant act
b) D intentionally induced V to consent by impersonating a person known personally to
V.
Capacity to Consent
Special Groups
i) CHILDREN: law does not presume a cut-off age for children at which they become capable. If
child has sufficient maturity and understanding, she may be competent to consent.
ii) MENTAL DISORDER/LEARNING DIFFICULTIES: a person is unable to make a decision for
himself if he is unable:
a. To understand the information relevant to the decision
b. To retain that information
c. To use or weigh that information as part of a decision-making process, OR
d. To communicate his decision by whatever means
-
Information needed to be understood to have the capacity to consent to sex in general
(Southward v KA 2016):
- The mechanics of the act
- That sex can lead to pregnancy
- That there are health risks posed by sex
- Ability to understand the concept of and necessity of one’s own consent to sex
-
Conditional consent  consent only if X. If X not present, no consent.
Relevant cases
- Jheeta (2007): V and D were in a relationship and broke up. D subsequently pretended to be
a cop and advised V to keep having sex with D as if she did not she may have to pay a fine. V
continued having sex. Question was whether there was an intentional deception as to the
nature and purpose of the act which would found a conclusive presumption against consent
under s76. Held that S.76 refers to the act of vaginal, anal, or oral penetration. Thus even if V
was deceived about the extraneous situation she was in she understood the nature and the
purpose of the sex act itself. There was therefore no basis for the s.76 conclusive
presumption. However, D had admitted that V was not truly consenting to many of their
sexual encounters and thus his conviction for rape was upheld as she had not consented
under the general meaning of consent in s.74 on the basis of that admission.
- Bree (2008): V was drunk; D penetrated her while she had temporarily lost consciousness;
Held that D raped her. Upshot: ‘If through drink or for any other reason, a complainant had
temporarily lost her capacity to choose whether to have sexual intercourse, she was not
consenting, and subject to the D’s state of mind, if intercourse took place, that would be rape.
However, where a complainant had voluntarily consumed substantial quantities of alcohol,
but nevertheless remained capable of choosing whether to have intercourse, and agreed to
do so, that would not be rape.’ Held that ‘it would be unrealistic to create a grid system that
-
-
-
-
-
-
-
would enable the answer to [the questions of the presence/capacity to consent] to be related
to some prescribed level of alcohol consumption as everyone’s capacity to cope with alcohol
was different and even varied day to day.’
Elbekkay (1995): D (appellant), V, and V’s boyfriend had been out drinking together. V went
to bed. Later, D climbed into V’s bed; V, thinking D was her boyfriend, whispered ‘I love you’.
D and V had sex. V later realized her error and fought D off. D convicted of rape; appealed on
basis that V had consented. At the time the statutory presumption concerning consent was
limited to impersonation of husbands. However judges upheld that this should apply equally
to boyfriends/partners. Conviction for rape upheld. (Later codified in s.76 – any person
known personally to the victim).
Olugboja (1982): D and D2 met two girls at a disco, and he offered them a lift home. Instead
of taking them home he took them to D2’s home. The girls refused to enter and started
walking away. D2 followed them and had sex with one. Both girls were then forced back to
the bungalow where D told one of the girls he would have sex with her. The girl asked him to
leave her alone but complied. Held (applied to now defunct SOA 1976): In cases where it is
suggested that the sexual intercourse was through force or fear of force, it is unlikely to be
necessary to direct the jury beyond explaining the meaning of the word. However, where the
issue is less clear the jury should be directed to consider the state of mind of the victim
immediately before the act and the events leading up to it. “The jury should be directed that
consent, or the absence of it, is to be given its ordinary meaning and if need be, by way of
example, that there is a difference between consent and submission; every consent involves
a submission, but it by no means follows that a mere submission involves consent.”
Kirk (2008): V (13 yo) had run away from home, was cold, hungry, and desperate, D offered
her money (3.25 pounds) for sex. Held that the desperate situation of V meant that she lacked
the freedom and capacity to give consent; she had ‘submitted to sexual intercourse rather
than consented to it.’ Convicted of rape.
Ali (2015): 3 Ds targeted young girls from troubled backgrounds and groomed them for
sexual purposes – e.g. ply with alcohol, drive them to remote locations, sexually assault/rape
them. As a result of the grooming the Vs would become sexually compliant and consented.
Held that grooming is “a factor that the jury could take into account in deciding whether or
not there was genuine consent.” Grooming may negative consent when it “has limited or
subverted V’s capacity to make free decision” or “created the risk that V submitted because
of the environment of dependency created by those responsible.”
Assange v Swedish Prosecution Authority (2011): deception as to the use of a condom was not
enough to vitiate consent under s.76 nature/purpose requirement. However, conviction was
held to be possible as consent was not valid under the general definition of consent in s.74.
Allowed conditional consent to become valid in English law – Assange was aware that it was
the express wish of the victim and a prerequisite of sex that a condom should be used, and
had unprotected sex anyway.
F v DPP (2013): D had ejaculated inside V having agreed not to do so. Held that, as underlined
by Assange, “V was deprived of choice relating to the crucial feature on which her original
consent to sexual intercourse was based. Accordingly her consent was negated,” and thus D’s
conduct fell “within the statutory definition of rape.”
OLD LAW:
- Flattery (1877): D professed to give medical and surgical advice for money. V
consulted him with respect to an illness she was suffering. He advised that a ‘surgical
operation’ be performed and under the pretense of performing it, had intercourse
with the victim. She submitted to what was, not with any intention of having sex, but
under the belief that he was treating her medically and performing a surgical
-
-
operation. Held: D guilty of rape; his deception as to the nature of the act vitiated the
consent she gave, which was to a surgical operation, not sex.
Williams (1923): Singing teacher to a 16-year-old had sex with V under pretence that
it would enable her to breathe properly for her singing. Girl submitted to what was
done but under the belief that she was being medically treated. D convicted of rape as
in Flattery. Where a woman is persuaded that what is being done to her is not the
ordinary act of sex but a necessary medical procedure then that is rape since although
she engaged sexual intercourse she did not consent to that act, but to what she
thought was a medical procedure.
Linekar (1995): V was a prostitute who agreed to have sex for payment with D, but D
failed to pay and indeed never intended to pay. Jury convicted D on grounds that V’s
consent was vitiated because it was obtained by D’s fraud. Appeal allowed, conviction
quashed – held that the only types of fraud which can negative consent to sexual
intercourse are frauds as to the nature of the act itself or as to the identity of the agent.
However Assange and F v DPP have since developed the law.
Assault by Penetration
S2 SOA 2003 – basically, rape that female can commit, and no mouth.
AR: D penetrates the vagina or anus of V with a part of his/her body or anything else, and the
penetration is sexual, and V does not consent to the penetration.
MR: D intended the penetration and does not reasonably believe that V consents.
‘Sexual’ (applies also to S3 sexual assault):
- S.78: A touching/penetration is sexual if a reasonable person would consider that:
- Whatever its circumstances or any person’s purpose in relation to it, it is BY
ITS NATURE sexual, OR
- Because of its nature it MAY be sexual AND because of the purpose of any
person in relation to it and/or its circumstances it is sexual.
 Thus a touching which is in its nature not sexual cannot be rendered so
by the defendant’s purposes.
Sexual Assault
S3 SOA 2003
AR: D touches V sexually and V does not consent to the touching.
MR: D’s touching was intentional, and D does not reasonably believe that V consented.
Touching: includes touching a) with any part of the body, b) with anything else, c) through
anything
Causing a Person to Engage in Sexual Activity Without Consent
S4 SOA 2003
AR: D causes V to engage in a sexual activity and V does not consent to engaging in that
activity.
MR: D intended to cause V to engage in a sexual activity, and does not reasonably believe that
V consents.
Relevant cases
- Tabassum (2000): appellant deceived numerous women into participating into what
he claimed was a breast cancer survey. Appellant induced the women to allow him to
demonstrate how to carry out a self-examination, requiring them to remove their
clothes and allow the appellant to feel their breasts. Each victim adamantly
maintained that their consent was predicated on the belief that the appellant
possessed the qualifications he claimed to hold and that the procedure was medical
in nature. Held that consent will be negatived if a person is deceived as to the nature
or quality of the act performed, and in this case there had been no true consent as the
nature of the act consented to was fundamentally different that it rendered any
apparent consent entirely inoperative.
- Devonald (2008): D, father of V’s ex-girlfriend, persuaded V to masturbate over
webcam by posing as a young woman, for the purpose of humiliating V, whom he
believed had treated his daughter wrongly. Convicted of S4 causing non-consensual
sexual activity on the grounds that the ‘purpose’ of the act encompassed more than
just personal sexual gratification in this instance: the victim’s purpose encompassed
sexual gratification of a non-existent woman, when the true purpose was his
humiliation. As s.76 applies to instances of deceit as to the nature or purpose of the
act, it did not matter that the victim was aware that the act was sexual in nature.
- B (2013): The defendant posed under different identities and threatened, over a
social network, the victim unless she sent him topless photographs. Question was
whether the requirements for the s.76 conclusive presumptions were met. Held: no.
D’s motive was held to be some form of sexual gratification. No evidence of deceit as
to purpose. B’s deception as to his identity, which was not an impersonation of
someone known personally to V, also did not vitiate consent under s.76.
- McNally (2013): Depending on circumstances, deception as to gender can vitiate
consent to sexual activity. D, born a female, pretended to be male and commenced an
online relationship with M, a girl, starting when they were 12. When they were 16 D,
still purporting to be male and wearing a prosthetic penis under her clothes to uphold
the deception, visited V and had sexual interactions (including penetration). On the
fourth visit, D admitted she was female. M told police she had only consented because
she thought D was male. Held that “M chose to have sexual encounters with a boy and
her preference (her freedom to choose whether or not to have a sexual encounter
with a girl) was removed by the defendant’s deception.” Held not to have consented
-
-
under s74 general meaning of consent, but not under s.76. D convicted of s.2 assault
by penetration
H (2005): D propositioned V sexually and attempted to pull her towards him and
place a hand over her mouth by grabbing her tracksuit pocket. D convicted of sexual
assault (s3). D argued that grabbing a tracksuit is neither touching the victim nor
something a reasonable person would consider a sexual touching. Court upheld
conviction for sexual assault, setting out a two-part test for cases where the touching
is not inherently sexual (i.e. what is adopted in s.78).
Bingham (2013): In considering an offence of causing sexual activity without consent
and the application of the conclusive presumption under the Sexual Offences Act 2003
s.76 that a defendant intentionally deceived a complainant as to the purpose of the
relevant act, the word "purpose" should not be construed too widely. Section 76 did
not apply where a defendant had used false identities to make his girlfriend perform
sexual acts on the internet for his sexual gratification where she had not been
deceived as to the purpose of the acts; his deception as to identity and threatened
consequences of the acts were not enough.
Property Offences
Theft
S1 Theft Act 1968
AR: Appropriating property belonging to another.
MR: Doing so dishonestly and with an intention to permanently deprive. (It is immaterial whether
the appropriation is made with a view to gain, or is made for the thief’s own benefit.)
Definitions:
i)
Property  money and all other property, real and personal, and things in action (i.e.
debts) and intangibles. Land generally cannot be stolen, except in 3 specific cases (Page
491-493 Case book). Information is not property (Oxford v Moss). Electricity has its own
offence (s13). Bodies, parts of bodies, bodily products, and corpses are not traditionally
property. There are 3 circumstances in which bodily matter could amount to property for
the purposes of theft (pg. 494). Wild animals cannot be stolen unless they are tamed or
ii)
iii)
iv)
v)
ordinarily kept in captivity, and carcasses only if they have been reduced into someone’s
possession. (s4(4))
Belonging to another  property is to be regarded as belonging to any person having
possession or control of it, or having in it any proprietary right or interest. (s5(1))
Appropriates  any assumption by a person of the rights of an owner, including where
he came by the property (innocently or not) without stealing it, as well as any later
assumption of a right to it by keeping or dealing with it as owner. (s3(1)) Bona fide
purchaser will not have committed theft by virtue of defect in the transferor’s title.
Intention to Permanently Deprive  borrowing does not normally amount to theft. D
must intend to permanently deprive V of the item. D need not be shown to have intended
to acquire the property, or to have intended to make a gain. Can still be convicted of theft
even if there was an intention to replacing the thing with a similar/equivalent-value item
(Vedlumyl 1989). Need not be shown that D intended to deprive the owner of the
property by the act of appropriation (e.g. if D moves a can of beans near to the door,
intending to return later and take them away permanently, the act of appropriation
(putting them by the door) can count as theft, as he intends to permanently deprive the
owner of the thing at some point in the future). Conditional intention?
Dishonestly  Ivey v Genting (i.e., the objective limb of Ghosh test): test is whether the
conduct was dishonest by the lay objective standards of ordinary reasonable and honest
people.
 Statute (s2 TA 1968) outlines dishonesty negatively: a person’s
appropriation of property is NOT to be regarded as dishonest a) if he
appropriates it in the belief that he has the right in law to do so on behalf of
himself or another person; b) if he appropriates it in the belief that he would
have the other’s consent if the other knew of the appropriation and the
circumstances of it; c) if he appropriates the property in the belief that the
person to whom the property belongs cannot be discovered by taking
reasonable steps.
 A person’s appropriation of property belonging to another may be dishonest
notwithstanding that he is willing to pay for the property.
Relevant Cases
Morris 1984 –
Defences
Intention as volitional
- Don’t need to
Recklessness as an awareness
-
Heather keating – try telling bride that the groom is not culpable for missing the wedding
because it didn’t cross his mind
Bryce – old law for complicity, unforeseen additional events
Sca 44 and 45 – difference between regular and woollin intent
Conditional intent?
Jogee doesn’t fit with Cogan and Leek
- R Williams: Procuring is just a different set of offences, jogee (d2 must intend d1 to act with
the nec mens rea) can’t apply
Squaring Hinks and (Briggs?)
Williams argument re: complicity
- Civil liberties  argues exception should be made for sellers of an ordinary marketable
commodity who sell the commodity to a customer despite realizing that by doing so he is
enabling the customer to commit a crime. The shopkeeper is not his buyer’s keeper.
- i.e. ‘Why should a man who is pursuing his ordinary and lawful vocation and takes
no special steps to assist illegalities become involved as a third party to a crime
committed by a customer merely because he realises that his customer will be
enabled to commit a crime?’
- what Williams says makes sense, but misses the point? The issue with the shopkeeper is not
when he realises that his customer will be enabled to commit a crime, but when he realises
that his customer will be assisted in actually committing one. A sharp enough shopkeeper
will realize that by selling virtually anything to anyone he will thereby enable the buyer to
commit some type of crime – i.e., a crime with that thing – he will have enabled the buyer of
potatoes to batter someone with those potatoes etc.
- what is problematic is when the shopkeeper knows or has a settled belief that the buyer
intends to commit a crime and that the thing he is buying is being bought for the purpose of
furthering/committing that crime. The shopkeeper then doesn’t merely realize that he is
enabling the commission of a crime, but he believes that the thing is being bought in order
to commit a crime. When he believes/knows this, how can he not be said to have intended
assistance?
GENERAL PART – mr, ar, causation, omissions, etc.
Topics
1.
2.
3.
4.
5.
6.
Some basic concepts
Offences and actus reus
Causation
Omissions
Intention
Recklessness and strict liability
1.
Some Basic Concepts
A.
Criminal Law
1.
characterisation of criminal law
‘Criminal law connotes only the quality of such acts or omissions as are prohibited under
appropriate penal provisions by authority of the State. The criminal quality of an act
cannot be discerned by intuition, nor can it be discovered by reference to any standard
but one: is the act prohibited with penal consequences?’ (Proprietary Articles Trade
Association v A-G for Canada ]1931] AC 310, 324 per Lord Atkin [Privy Council])
‘A crime must be defined by reference to the legal consequences of the act. We must
distinguish, primarily, not between crimes and civil wrongs but between criminal and
civil proceedings. A crime then becomes an act that is capable of being followed by
criminal proceedings, having one of the types of outcome (punishment etc.) known to
follow these proceedings.’ (Glanville Williams, ‘The Definition of Crime’ [1955] CLP
107, 123)
Three elements: (a) prohibition; (b) conviction; and (c) liability to punishment (Simester &
Sullivan, ch 1)
European Convention on Human Rights: ‘criminal charge’ under art 6 has an ‘autonomous’
meaning under the Convention, to be determined by reference to:
(1) classification in domestic law;
If classified as non-criminal under domestic law, then consider:
(2) nature of the offence;
and/or
(3) the severity of the penalty that party risks incurring
Engel v Netherlands (1976) 1 EHRR 706
Distinguish wide and narrow concepts of ‘crime’:
i. wide = all of the legal wrongs that fall under the preceding characterisations
 covers both serious wrongdoing and mere regulatory infractions
ii. narrow = communicates censure for both the conduct and the perpetrator, i.e. that D is
culpable for acting in a blameworthy way
 restricted to serious wrongdoing
 common non-legal understanding of ‘crime’
2. Sources of criminal law
 statute—e.g. Theft Act 1968
 common law—e.g. murder, manslaughter, assault
Article 7 European Convention on Human Rights
(1)
No one shall be held guilty of any criminal offence on account of any act
or omission which did not constitute a criminal offence under national or
international law at the time when it was committed. Nor shall a heavier penalty
be imposed than the one that was applicable at the time the criminal offence was
committed.
Ԥ36. However clearly drafted a legal provision may be, in any system of law, including
criminal law, there is an inevitable element of judicial interpretation. There will always be a
need for elucidation of doubtful points and for adaptation to changing circumstances. Indeed,
in the United Kingdom, as in the other Convention States, the progressive development of
the criminal law through judicial law-making is a well entrenched and necessary part of legal
tradition. Article 7 (art. 7) of the Convention cannot be read as outlawing the gradual
clarification of the rules of criminal liability through judicial interpretation from case to case,
provided that the resultant development is consistent with the essence of the offence and
could reasonably be foreseen.’
S.W. v UK (1996) EHRR 363 (ECtHR)
B.
The ‘General Part’
“The general part is comprised of rules and principles of the criminal law whose importance and
application can be analysed and debated without necessarily referring to a specific crime.”
(Ashworth & Horder)

general defences (e.g. infancy, self-defence, duress)

derivative liability (inchoate offences, complicity)

basic terms
C.
Offence and Defence
Criminal Damage Act 1971
1. Destroying or damaging property
(1)
A person who without lawful excuse destroys or damages any property belonging to another
intending to destroy or damage any such property or being reckless as to whether any such property
would be destroyed or damaged shall be guilty of an offence.
…
5.
“Without lawful excuse”
(2)
A person charged with an offence to which this section applies shall,
whether or not he would be treated for the purposes of this Act as having a lawful
excuse apart from this subsection, be treated for those purposes as having a lawful
excuse—
(a) if at the time of the act or acts alleged to constitute the offence he believed
that the person or persons whom he believed to be entitled to consent to
the destruction or damage to the property in question had so consented,
or would have so consented to it if he or they had known of the
destruction or damage and its circumstances;
…
(c) For the purposes of this section it is immaterial whether a belief is justified
or not if it is honestly held.
Campbell, ‘Offence and Defence’ in I. Dennis (ed), Criminal Law and Criminal Justice (1987)
D.
Actus reus and mens rea
Theft Act 1968:
1. (1)
A person is guilty of theft if he dishonestly appropriates property
belonging to another with the intention of permanently depriving the other of it; and
‘thief’ and ‘steal’ shall be construed accordingly.
The ‘elements’ of an offence
e.g. elements of the offence of theft (s.1(1) Theft Act 1968)
1. dishonest
2. appropriation
3. property
4. belonging to another
5. intention to permanently deprive the other of it
2, 3, 4 = actus reus
1, 5 = mens rea
1.
actus reus =
‘external element of the offence’ (Smith & Hogan)
‘that part of the definition [of an offence] that does not refer to the defendant’s mental state’ (Simester
& Sullivan)
‘conduct elements’ (Ashworth & Horder)
2.
mens rea =
‘state of mind’ ‘mental element’ (Smith & Hogan)
‘generally speaking, that part of the offence which refers to the defendant’s mental state’ (Simester &
Sullivan)
‘fault elements’ (Ashworth & Horder)
Elements of the offence of sexual assault of a child under 13?
Sexual Offences Act 2003
7.—(1) A person commits an offence if—
(a) he intentionally touches another person,
(b) the touching is sexual
(c) the other person is under 13.
Principle: actus non facit reum nisi mens sit rea
‘an act does not make a man guilty of a crime unless his mind is also guilty’
(Lord Hailsham, Haughton v Smith [1975] AC 476)
G [2008] UKHL 37
Corran [2005] EWCA Crim 192
Topic 2 / Offences and actus reus
A.
the relationship between actus reus and mens rea
1. all of the elements must be present for an offence to be committed
2. all of the elements must be present at the same time for the offence to be committed
(‘contemporaneity’)
a. actus reus followed by mens rea:
Fagan [1969] 1 QB 439
‘… a distinction is to be drawn between acts which are complete - though results may
continue to flow - and those acts which are continuing.
‘It is not necessary that mens rea should be present at the inception of the actus reus;
it can be superimposed upon an existing act. On the other hand the subsequent
inception of mens rea cannot convert an act which has been completed without mens
rea into an assault’
Miller [1983] 2 AC 161 (HL)
‘I see no rational ground for excluding from conduct capable of giving rise to criminal
liability, conduct which consists of failing to take measures that lie within one’s power
to counteract a danger that one has oneself created, if at the time of such conduct one’s
state of mind is such as constitutes a necessary ingredient of the offence.’ (per Lord
Diplock)
b. mens rea followed by actus reus
Thabo Meli [1954] 1 All ER 373 (PC)
‘It appears to their Lordships impossible to divide up what was really one series of
acts in this way. There is no doubt that the accused set out to do all these acts in order
to achieve their plan and as parts of their plan; and it in much too refined a ground of
judgment to say because they were under a misapprehension at one stage and thought
that, their guilty purpose had been achieved before, in fact, it was achieved, therefore
they are to escape the penalties of the law.’ (per Lord Reid)
Le Brun [1992] QB 61 (CA)
‘It seems to us that where the unlawful application of force and the eventual act
causing death are parts of the same sequence of events, the same transaction, the fact
that there is an appreciable interval of time between the two does not serve to
exonerate the defendant from liability. That is certainly so where the appellant’s
subsequent actions which caused death, after the initial unlawful blow, are designed
to conceal his commission of the original unlawful assault.’

‘transaction’ principle

‘causation’ principle
3. so long as the elements of an offence are present at the same time, it is irrelevant that the conjunction
is unanticipated by the defendant (‘transferred malice’)
Latimer (1886) 17 QBD 359
‘… a man who has an unlawful and malicious intent against another, and, in attempting to
carry it out, injures a third person, is guilty of what the law deems malice against the person
injured, because the offender is doing an unlawful act, and has that which the judges call
general malice, and that is enough’
A-G’s Reference (No 3 of 1994) [1997] 3 All ER 936
Gnango [2011] UKSC 59, [16], [52], [60–1]
Pembliton (1874) LR 2 CCR 119
‘The question is, whether under an indictment for unlawfully and maliciously injuring the
property of the owner of the plate-glass window, these facts will support the indictment when
coupled with the other facts found by the jury, that the prisoner threw the stone at the people
intending to strike one or more of them, but not intending to break a window.’
Grant [2014] EWCA Crim 143
On these facts a finding of intention to kill (count 1) leads inevitably to a finding of intention
to cause grievous bodily harm (counts 2 and 3)—the consequence of the hierarchy of intent,
with intention to kill at the top. It is impossible to kill without causing really serious harm.
Ashworth, ‘Transferred Malice’ in Glazebrook (ed) Reshaping the Criminal Law (1978)
Horder, ‘Trasnferred Malice and the Remoteness of Unexpected Outcomes from Intention’ [2006]
Crim LR 383
B.
Analysis of the actus reus
Offences require actus reus: no ‘thought crimes’.
But note offences such as s.6 Fraud Act 2006:
6 Possession etc. of articles for use in frauds
(1) A person is guilty of an offence if he has in his possession or under his control any
article for use in the course of or in connection with any fraud.
i. conduct
ii. consequences/outcome/results
iii. circumstances
Road Traffic Act 1988:
Causing death by dangerous driving.
1.
A person who causes the death of another person by driving a mechanically propelled
vehicle dangerously on a road or other public place is guilty of an offence.
Dangerous driving.
2.
A person who drives a mechanically propelled vehicle dangerously on a road or other
public place is guilty of an offence.
C.
Automatism
Burns v Bidder [1967] 2 QB 227 (CA)
i. types of automatism
ii. approaches to automatism
Hill v Baxter [1958] 1 QB 277 (CA)
Issues:
1.
degree of loss of control
A-G’s Ref (No 2 of 1992) [1993] 4 All ER 683 (CA)
Quick [1973] QB 910 (CA)
Coley [2013] EWCA Crim 223 (CA)
Cf Draft Criminal Code (1989) [not enacted]
Automatism and physical incapacity
Automatism
33.–(1)
A person is not guilty of an offence if—
(a) he acts in a state of automatism, that is, his act—
(i) is a reflex, spasm or convulsion; or
(ii) occurs while he is a condition (whether of sleep, unconsciousness,
impaired consciousness or otherwise) depriving him of effective control
of the act; and
(b) the act or condition is the result neither of anything done or omitted with
the fault required for the offence nor of voluntary intoxication.
Physical incapacity
(2) A person is not guilty of an offence by virtue of an omission to act if—
(a) he is physically incapable of acting in the way required; and
(b) his being so incapable is the result neither of anything done or omitted
with the fault required for the offence nor of voluntary intoxication.
b.
insanity
Sullivan [1984] AC 156 (HL)
Hennessy (1989) 89 Cr App R 10 (CA)
Burgess [1991] 2 All ER 769 (CA)
Art 5 European Convention on Human Rights:
(1) Everyone has the right to liberty and security of a person. No one shall be
deprived of his liberty save in the following cases and in accordance with a
procedure prescribed by law: …
(e) the lawful detention of persons … of unsound mind …
Wintertwerp v Netherlands (1979-80) 2 EHRR 387
R Mackay, ‘Righting the Wrong?—Some Observations on the second limb of the M’Naghten Rules’
[2009] Crim LR 56
c.
d.
intoxication
Lipman [1970] 1 QB 152
prior fault
I Emrahim et al, ‘Violence, Sleepwalking and the Criminal Law’ [2005] Crim LR 614
R Mackay & B Mitchell, ‘Sleepwalking, Automatism and Insanity’ [2006] Crim LR 901
D.
Status offences?
Larsonneur (1933) 24 Cr App R 74 (CCA)
Winzar (The Times, 28/03/83)
Robinson-Pierre [2013] EWCA Crim 2396
Dangerous Dogs Act 1991
3. Keeping dogs under proper control
(1) If a dog is dangerously out of control in a public place—
(a) the owner; and
(b) if different, the person for the time being in charge of the dog
is guilty of an offence, or if the dog while so out of control injures any person, an
aggravated offence, under this sub-section.
‘… we have no doubt that the supremacy of Parliament embraces the power to create ‘state
of affairs’ offences in which no causative link between the prohibited state of affairs and the
defendant need be established. The legal issue is not, in our view, whether in principle such
offences can be created but whether in any particular enactment Parliament intended to create
one. [38]
‘On analysis of section 3, we do not consider that it was Parliament’s intention to create an
offence without regard to the ability of the owner (or someone to whom he had entrusted
responsibility) to take and keep control of the dog. There must, in our view, be some causal
connection between having charge of the dog and the prohibited state of affairs that has
arisen. In our view, section 3 (1) requires proof by the prosecution of an act or omission of
the defendant (with or without fault) that to some (more than minimal) degree caused or
permitted the prohibited state of affairs to come about.’ [42]
Topic 3 / Causation
For D to be legally liable for an outcome/consequence/result, D must (1) have caused the outcome in fact,
but must also (2) be regarded as legally responsible for the outcome
1.
‘Factual’ causation
A.
ordinary concept
Courts use the ‘ordinary concept’ of causation
White [1910] 2 KB 124
D put poison in V’s tea to kill her; V died before drinking of unrelated heart attack
B.
‘but for’ cause (sine qua non, necessary condition, …)
‘but for’ = test for causation, usually adequate
(cf cases of causal ‘over-determination’)
McKechnie (1992) 94 Cr App R 51
D attacked V who had pre-existing stomach ulcer; doctors unable to operate on ulcer due to
injuries; ulcer burst and V died
Watson [1989] 1 WLR 684
D verbally abused V in course of burglary of her house; V died soon after of heart attack
Dear [1996] Crim LR 595
D wounded V; V later removed bandages re-opening wounds, and died
2.
‘Legal’ causation
For D to be a cause in law of the outcome, D’s causal contribution must have been more than de
minimis and there must not have been another cause that constitutes a novus actus interveniens
A.
more than de minimis
Cato [1976] 1 All ER 260
cause ‘of substance’; a cause ‘outside the de minimis range’
Dias [2002] Crim LR 490 ([2001] EWCA Crim 2986)
‘substantive’ cause
Pagett (1983) 76 Cr App R 279 (CA)
‘significant’ (or ‘not insignificant’) cause
B.
novus actus interveniens
A new ‘intervening’ cause that ‘breaks the chain of causation’ (in law)
Concurrent causation: there can be more than one cause of any event
i.
D’s actions lead to V injuring him/herself
Roberts (1971) 56 Cr App R 96 (CA)
‘The test is: Was it the natural result of what the alleged assailant said and did, in the
sense that it was something that could reasonably have been foreseen as the consequence
of what he was saying or doing? As it was put in one of the old cases, it had got to be
shown to be his act, and if of course the victim does something so “daft,” in the words of
the appellant in this case, or so unexpected, not that this particular assailant did not
actually foresee it but that no reasonable man could be expected to foresee it, then it is
only in a very remote and unreal sense a consequence of his assault, it is really occasioned
by a voluntary act on the part of the victim which could not reasonably be foreseen and
which breaks the chain of causation between the assault and the harm or injury.’
Marjoram [2000] Crim LR 372 (CA)
‘When the issue is causation, the law is concerned with the effect of the defendant’s
conduct on the victim’s mind; whether a reasonable person would foresee the victim
acting as the victim did as a result of the defendant’s conduct.’
Kennedy [2007] UKHL 38
‘The criminal law generally assumes the existence of free will. The law recognises certain
exceptions, in the case of the young, those who for any reason are not fully responsible
for their actions, and the vulnerable, and it acknowledges situations of duress and
necessity, as also of deception and mistake. But, generally speaking, informed adults of
sound mind are treated as autonomous beings able to make their own decisions how they
will act, and none of the exceptions is relied on as possibly applicable in this case. Thus D
is not to be treated as causing V to act in a certain way if V makes a voluntary and
informed decision to act in that way rather than another.’
Jones, ‘Causation, homicide and the supply of drugs’ (2006) 26 Legal Studies 139–54
ii. D’s actions lead to a third party (TP) injuring V
a.
innocent agency
Michael (1840) 9 C&P 356; 173 ER 867
D gave TP some ‘medicine’ to give to the child V
b.
voluntary intervention
Pagett (1983) 76 Cr App R 279 (CA)
‘The criterion which they [Hart and Honoré, Causation in the Law] suggest should be
applied in such circumstances is whether the intervention is voluntary, i.e. whether it
is “free, deliberate and informed.” We resist the temptation of expressing the judicial
opinion whether we find ourselves in complete agreement with that definition; though
we certainly consider it to be broadly correct and supported by authority.’
c.
TP’s actions not reasonably foreseeable
Girdler [2009] EWCA Crim 2666
‘… a person will not have caused something to have happened if a natural event which
is not reasonably foreseeable was the immediate cause of the event’
iii. D injures V, but V’s death could have been avoided
a.
refusal of treatment by V
Blaue [1975] 1 WLR 1411 (CA)
‘It has long been the policy of the law that those who use violence on other people
must take their victims as they find them. This in our judgment means the whole man,
not just the physical man. It does not lie in the mouth of the assailant to say that his
victim's religious beliefs which inhibited him from accepting certain kinds of
treatment were unreasonable. The question for decision is what caused her death. The
answer is the stab wound. The fact that the victim refused to stop this end coming
about did not break the casual connection between the act and death.’
Dear [1996] Crim LR 595
‘It would not, in our judgment, be helpful to juries if the law required them, as Mr
Solley’s submissions suggest, to decide causation in a case such as the present by
embarking on an analysis of whether a victim had treated himself with mere
negligence or gross neglect, the latter breaking but the former not breaking the chain
of causation between the defendant’s wrongful act and the victim’s death.’
b.
negligent medical treatment
Jordan (1956) 40 Cr App R 152 (CCA)
‘It is sufficient to point out here that this was not normal treatment. Not only one
feature, but two separate and independent features, of treatment were, in the opinion
of the doctors, palpably wrong and these produced the symptoms discovered at the
post-mortem examination which were the direct and immediate cause of death,
namely, the pneumonia resulting from the condition of oedema which was found.’
Smith [1959] 2 QB 35 (CMAC)
‘It seems to the court that if at the time of death the original wound is still an operating
cause and a substantial cause, then the death can properly be said to be the result of
the wound, albeit that some other cause of death is also operating. Only if it can be
said that the original wounding is merely the setting in which another cause operates
can it be said that the death does not result from the wound. Putting it in another
way, only if the second cause is so overwhelming as to make the original wound
merely part of the history can it be said that the death does not flow from the wound.’
Malcherek [1981] 1 WLR 690 (CA)
‘There is no evidence in the present case that at the time of conventional death, after
the life support machinery was disconnected, the original wound or injury was other
than a continuing, operating and indeed substantial cause of the death of the victim,
although it need hardly be added that it need not be substantial to render the assailant
guilty. There may be occasions, although they will be rare, when the original injury
has ceased to operate as a cause at all, but in the ordinary case if the treatment is given
bona fide by competent and careful medical practitioners, then evidence will not be
admissible to show that the treatment would not have been administered in the same
way by other medical practitioners. In other words, the fact that the victim has died,
despite or because of medical treatment for the initial injury given by careful and
skilled medical practitioners, will not exonerate the original assailant from
responsibility for the death.’
Cheshire [1991] 3 All ER 670 (CA)
‘In a case in which the jury have to consider whether negligence in the treatment of
injuries inflicted by the defendant was the cause of death we think it is sufficient for
the judge to tell the jury that they must be satisfied that the Crown have proved that
the acts of the defendant caused the death of the deceased adding that the defendant's
acts need not be the sole cause or even the main cause of death it being sufficient that
his acts contributed significantly to that result. Even though negligence in the
treatment of the victim was the immediate cause of his death, the jury should not
regard it as excluding the responsibility of the defendant unless the negligent
treatment was so independent of his acts, and in itself so potent in causing death, that
they regard the contribution made by his acts as insignificant.’
3.
General principles of causation?
Empress Car v National Rivers Authority [1999] 2 AC 22 (HL)
Water Resources Act 1991
s.85(1) A person contravenes this section if he causes or knowingly permits any
poisonous, noxious or polluting matter or any solid waste matter to enter any
controlled waters.
‘… one cannot give a common sense answer to a question of causation for the purpose of
attributing responsibility under some rule without knowing the purpose and scope of the rule.
Does the rule impose a duty which requires one to guard against, or makes one responsible
for, the deliberate acts of third persons? …
‘Before answering questions about causation, it is therefore first necessary to identify the
scope of the relevant rule. This is not a question of common sense fact; it is a question of law.
…
‘What, therefore, is the nature of the duty imposed by section 85(1)? Does it include
responsibility for acts of third parties or natural events and, if so, for any such acts or only
some of them? This is a question of statutory construction, having regard to the policy of the
Act. …
‘The true common sense distinction is, in my view, between acts and events which, although
not necessarily foreseeable in the particular case, are in the generality a normal and familiar
fact of life, and acts or events which are abnormal and extraordinary. Of course an act or
event which is in general terms a normal fact of life may also have been foreseeable in the
circumstances of the particular case, but the latter is not necessary for the purposes of liability.
There is nothing extraordinary or abnormal about leaky pipes or lagoons as such: these
things happen, even if the particular defendant could not reasonably have foreseen that it
would happen to him. There is nothing unusual about people putting unlawful substances
into the sewage system and the same, regrettably, is true about ordinary vandalism. So when
these things happen, one does not say: that was an extraordinary coincidence, which
negatived the causal connection between the original act of accumulating the polluting
substance and its escape. In the context of section 85(1), the defendant's accumulation has
still caused the pollution. On the other hand, the example I gave of the terrorist attack would
be something so unusual that one would not regard the defendant's conduct as having caused
the escape at all.’
(per Lord Hoffmann)
Hughes [2013] UKSC 56
Road Traffic Act 1988
s.3ZB Causing death by driving: unlicensed, disqualified or uninsured drivers.
A person is guilty of an offence under this section if he causes the death of another
person by driving a motor vehicle on a road and, at the time when he is driving, the
circumstances are such that he is committing an offence under(a) Section 87(1) of this Act (driving otherwise than in accordance with a licence);
(b) Section 103(1)(b) of this Act (driving while disqualified), or
(c) Section 143 of this Act (using a motor vehicle while uninsured or unsecured
against third party risks).
‘It is trite law, and was common ground before us, that the meaning of causation is heavily
context-specific and that Parliament (or in some cases the courts) may apply different legal
rules of causation in different situations. Accordingly it is not always safe to suppose that
there is a settled or “stable” concept of causation which can be applied in every case. …
‘… in order to give effect to the expression “causes...death...by driving” a defendant charged
with the offence under section 3ZB must be shown to have done something other than simply
putting his vehicle on the road so that it is there to be struck. It must be proved that there
was something which he did or omitted to do by way of driving it which contributed in a
more than minimal way to the death. The question therefore remains what can or cannot
amount to such act or omission in the manner of driving. …
‘Juries should thus be directed that it is not necessary for the Crown to prove careless or
inconsiderate driving, but that there must be something open to proper criticism in the
driving of the defendant, beyond the mere presence of the vehicle on the road, and which
contributed in some more than minimal way to the death.’
Topic 4 / Omissions
The default rule in the common law is that D is liable for her acts, not her omissions, unless (1) the failure
to perform some action is itself an offence or (2) D was under a duty to V to take some action.
1.
Omission offences
Road Traffic Act 1988
14.— Seat belts: adults.
(1) The Secretary of State may make regulations requiring, subject to such exceptions as
may be prescribed, persons who are driving or riding in motor vehicles on a road to
wear seat belts of such description as may be prescribed.
…
(3) A person who drives or rides in a motor vehicle in contravention of regulations
under this section is guilty of an offence;
Children and Young Persons Act 1933
1 Cruelty to persons under sixteen
(1) If any person who has attained the age of sixteen years and [has responsibility for]
any child or young person under that age, wilfully assaults, ill-treats, neglects,
abandons, or exposes him, or causes or procures him to be assaulted, ill-treated,
neglected, abandoned, or exposed, in a manner likely to cause him unnecessary
suffering or injury to health (including injury to or loss of sight, or hearing, or limb,
or organ of the body, and any mental derangement), that person shall be guilty of [an
offence] …
…
(2) For the purposes of this section—
(a) a parent or other person legally liable to maintain a child or young person [, or
the legal guardian of a child or young person,] shall be deemed to have neglected
him in a manner likely to cause injury to his health if he has failed to provide
adequate food, clothing, medical aid or lodging for him, or if, having been unable
otherwise to provide such food, clothing, medical aid or lodging, he has failed to
take steps to procure it to be provided under [the enactments applicable in that
behalf];
Brown (1841) 174 ER 522
‘It is no unimportant matter that the Queen's subjects should assist the officers of the law,
when duly required to do so, in preserving the public peace; and it is right that the state of
the law should be known, and that all parties violating the duty which the law casts upon
them should be fully aware of the very serious risk they ran in case of refusal.’
2.
Other offences
In the case of other offences, the courts have generally proceeded on the basis that unless the
characterisation of the offence is incompatible with omissions, omissions liability is possible. This is
often achieved by having regard to the course of D’s conduct, not simply an omission taken in
isolation.
The wording of some offences, on the other hand, may exclude the possibility of liability for omissions:
E.g.? s.21 Theft Act 1968
(1) A person is guilty of blackmail if, with a view to gain for himself or another or
with intent to cause loss to another, he makes any unwarranted demand with
menaces; …
A.
Duty situations:
a. assumption of responsibility
Instan [1893] 1 QB 450
‘There can be no question in this case that it was the clear duty of the prisoner to impart
to the deceased so much as was necessary to sustain life of the food which she from time
to time took in, and which was paid for by the deceased's own money for the purpose of
the maintenance of herself and the prisoner; it was only through the instrumentality of
the prisoner that the deceased could get the food. There was, therefore, a common law
duty imposed upon the prisoner which she did not discharge.’
Pittwood (1902) 19 TLR 37
‘… a man might incur criminal liability from a duty arising out of contract [Instan] …
the company had assumed the responsibility of protecting the public whenever they
crossed the road’
Stone & Dobinson [1977] QB 354
‘Whether Fanny was a lodger or not she was a blood relation of the appellant Stone; she
was occupying a room in his house; the appellant Dobinson had undertaken the duty of
trying to wash her, of taking such food to her as she required. There was ample evidence
that each appellant was aware of the poor condition she was in by mid-July. It was not
disputed that no effort was made to summon an ambulance or the social services or the
police despite the entreaties of Mrs. Wilson [a neighbor] and Mrs. West [a landlady at
a local public house]. A social worker used to visit Cyril [S’s son]. No word was spoken
to him. All these were matters which the jury were entitled to take into account when
considering whether the necessary assumption of a duty to care for Fanny had been
proved.’
Adomako [1995] 1 AC 171
A was anaesthetist at operation; failed to notice that the tube providing oxygen to the patient
(V) had become disconnected. V subsequently died of a cardiac arrest. A convicted of
manslaughter (by gross negligence).
b. special relationship to V
Gibbins & Proctor (1918) 13 Cr App R 134
G was living with P and had brought his seven year old daughter (the V) with him to live with
P’s children. V died of starvation, as P had withheld adequate food from her. G and P convicted
of murder: G as the father, P on the basis of Instan [above]
Russell [1933] VLR 59 (Supreme Court of Victoria)
R was convicted of the manslaughter of his wife and two children. R had stood by while his wife
drowned herself and the children. Held, by majority (2 vs 1), that R had a duty towards his wife,
as well as his children.
c.
creation of danger
Miller [1983] 2 AC 161
‘I see no rational ground for excluding from conduct capable of giving rise to criminal
liability, conduct which consists of failing to take measures that lie within one's power to
counteract a danger that one has oneself created, if at the time of such conduct one's state
of mind is such as constitutes a necessary ingredient of the offence.’
Evans [2009] EWCA Crim 650
‘The duty necessary to found gross negligence manslaughter is plainly not confined to
cases of a familial or professional relationship between the defendant and the deceased. In
our judgment, consistently with R v Adomako [1995] 1 AC 171 and the link between civil
and criminal liability for negligence, for the purposes of gross negligence manslaughter,
when a person has created or contributed to the creation of a state of affairs which he
knows, or ought reasonably to know, has become life threatening, a consequent duty on
him to act by taking reasonable steps to save the other's life will normally arise.’
B.
No general duty of rescue in English law
cf French Penal Code (1994) article 223:
(2)
[a sentence of five years imprisonment and a fine of 500,000 francs] may be
imposed on anyone who knowingly fails to give assistance to a person in danger
which, without risk to himself or to others, he has the ability to provide by his own
action or by calling for help.
3.
A.
B.
Omissions and causation
Factual causation
would the prohibited event have occurred but for the omission of the defendant?
Legal causation
a. ‘duty’ requirement
b. novus actus interveniens?
Blaue [1975] 1 WLR 1411
4.
‘pure’ omissions and continuing acts
Airedale NHS Trust v Bland [1993] AC 789 (at 865D–868E and 881B–885B)
Ms B v An NHS Hospital Trust [2002] EWHC 429 (Fam); [2002] 2 All ER 449
Fagan v MPC [1969] 1 QB 439, [1968] 3 All ER 442
Further reading:
Ashworth & Steiner, ‘Criminal Omissions and Public Duties: the French Experience’, (1990) 10 LS 153
Ashworth, ‘The Scope of Criminal Liability for Omissions’, (1989) 105 LQR 440
Williams, ‘The Scope of Omissions—the Conventional View’ (1991) 107 LQR 86
Alexander, ‘Criminal Liability for Omissions: An Inventory of Issues’ in Shute and Simester (eds)
Criminal Law Theory: Doctrines of the General Part (2002)
Topic 5 & 6 / Intention, Recklessness and Strict Liability
1.







The variety of mens rea
maliciously1
wilful2
dishonestly3
with a view to4
knowing5
believing6
for the purpose of7
2.
Intention
A.
Offences requiring intention, e.g.
Theft: Theft Act 1968:
1.(1)
A person is guilty of theft if he dishonestly appropriates property
belonging to another with the intention of permanently depriving the other of it; and
‘thief’ and ‘steal’ shall be construed accordingly.
GBH with intent: Offences Against the Person Act 1861
18. Whosoever shall unlawfully and maliciously by any means whatsoever wound or
cause any grievous bodily harm to any person with intent to do some grievous bodily
harm to any person or with intent to resist or prevent the lawful apprehension or
detainer of any person shall be guilty of an offence, and being convicted thereof shall be
liable to imprisonment for life.
B.
meaning of intention
Moloney [1985] AC 905
‘The golden rule should be that, when directing a jury on the mental element necessary in a
crime of specific intent, the judge should avoid any elaboration or paraphrase of what is meant
by intent, and leave it to the jury’s good sense to decide whether the accused acted with the
necessary intent, unless the judge is convinced that, on the facts and having regard to the
way the case has been presented to the jury in evidence and argument, some further
explanation or elaboration is strictly necessary to avoid misunderstanding. …
‘I do not, of course, by what I have said in the foregoing paragraph, mean to question the
necessity, which frequently arises, to explain to a jury that intention is something quite
distinct from motive or desire. But this can normally be quite simply explained by reference
to the case before the court or, if necessary, by some homely example. A man who at London
Airport, boards a plane which he knows to be bound for Manchester, clearly intends to travel
to Manchester, even though Manchester is the last place he wants to be and his motive for
boarding the plane is simply to escape pursuit. The possibility that the plane may have engine
ss.18, 20, 23, 24 Offences Against the Person Act 1861.
s.1 Infanticide Act 1938
3 s.1 Theft Act 1968
4 s.21 Theft Act 1968
5 s.12 Theft Act 1968
6 s.22 Theft Act 1968
7 s.67(1) Sexual Offences Act 2003.
1
2
trouble and be diverted to Luton does not affect the matter. By boarding the Manchester
plane, the man conclusively demonstrates his intention to go there, because it is a moral
certainty that that is where he will arrive.’
a.
ordinary term
b.
objective, aim, goal
c.
not ‘desire’
d.
e.
not motive
e.g. R (on the application of Pretty) v DPP [2002] 1 All ER 1
foreseen consequences?
Moloney
‘But looking on their facts at the decided cases where a crime of specific intent was under
consideration, including Reg. v. Hyam [1975] A.C. 55 itself, they suggest to me that the
probability of the consequence taken to have been foreseen must be little short of
overwhelming before it will suffice to establish the necessary intent. …
‘… the first fundamental question to be answered is whether there is any rule of substantive
law that foresight by the accused of one of those eventualities as a probable consequence of
his voluntary act, where the probability can be defined as exceeding a certain degree, is
equivalent or alternative to the necessary intention. I would answer this question in the
negative. …
‘I am firmly of opinion that foresight of consequences, as an element bearing on the issue of
intention in murder, or indeed any other crime of specific intent, belongs, not to the
substantive law, but to the law of evidence. …
‘I know of no clearer exposition of the law than that in the judgment of the Court of Criminal
Appeal (Lord Goddard C.J., Atkinson and Cassels JJ.) delivered by Lord Goddard C.J. in Rex
v. Steane [1947] KB 997 where he said, at p. 1004:
“No doubt, if the prosecution prove an act the natural consequence of which would be a certain result and no
evidence or explanation is given, then a jury may, on a proper direction, find that the prisoner is guilty of doing
the act with the intent alleged, but if on the totality of the evidence there is room for more than one view as to the
intent of the prisoner, the jury should be directed that it is for the prosecution to prove the intent to the jury’s
satisfaction, and if, on a review of the whole evidence, they either think that the intent did not exist or they are left
in doubt as to the intent, the prisoner is entitled to be acquitted.”
In the rare cases in which it is necessary to direct a jury by reference to foresight of
consequences, I do not believe it is necessary for the judge to do more than invite the jury to
consider two questions. First, was death or really serious injury in a murder case (or whatever
relevant consequence must be proved to have been intended in any other case) a natural
consequence of the defendant’s voluntary act? Secondly, did the defendant foresee that
consequence as being a natural consequence of his act? The jury should then be told that if
they answer yes to both questions it is a proper inference for them to draw that he intended
that consequence.’
Woollin [1999] AC 92
‘The effect of the critical direction [in Nedrick [1986] 1 W.L.R. 1025 (CA)] is that a result
foreseen as virtually certain is an intended result. …
‘In my view Lord Lane C.J.’s judgment in Nedrick provided valuable assistance to trial judges.
The model direction is by now a tried-and-tested formula. Trial judges ought to continue to
use it. On matters of detail I have three observations, which can best be understood if I set
out again the relevant part of Lord Lane’s judgment. It was:
“(A) When determining whether the defendant had the necessary intent, it may
therefore be helpful for a jury to ask themselves two questions. (1) How probable was
the consequence which resulted from the defendant’s voluntary act? (2) Did he foresee
that consequence? If he did not appreciate that death or serious harm was likely to
result from his act, he cannot have intended to bring it about. If he did, but thought
that the risk to which he was exposing the person killed was only slight, then it may
be easy for the jury to conclude that he did not intend to bring about that result. On
the other hand, if the jury are satisfied that at the material time the defendant
recognised that death or serious harm would be virtually certain (barring some
unforeseen intervention) to result from his voluntary act, then that is a fact from
which they may find it easy to infer that he intended to kill or do serious bodily harm,
even though he may not have had any desire to achieve that result . . . (B) Where the
charge is murder and in the rare cases where the simple direction is not enough, the
jury should be directed that they are not entitled to infer the necessary intention,
unless they feel sure that death or serious bodily harm was a virtual certainty (barring
some unforeseen intervention) as a result of the defendant’s actions and that the
defendant appreciated that such was the case. (C) Where a man realises that it is for
all practical purposes inevitable that his actions will result in death or serious harm,
the inference may be irresistible that he intended that result, however little he may
have desired or wished it to happen. The decision is one for the jury to be reached
upon a consideration of all the evidence.” (Lettering added.)
‘First, I am persuaded by the speech of my noble and learned friend, Lord Hope of Craighead,
that it is unlikely, if ever, to be helpful to direct the jury in terms of the two questions set out
in (A). I agree that these questions may detract from the clarity of the critical direction in (B).
Secondly, in their writings previously cited Glanville Williams, Professor Smith and Andrew
Ashworth observed that the use of the words “to infer” in (B) may detract from the clarity of
the model direction. I agree. I would substitute the words “to find.” Thirdly, the first sentence
of (C) does not form part of the model direction. But it would always be right for the judge
to say, as Lord Lane C.J. put it, that the decision is for the jury upon a consideration of all the
evidence in the case.’
[Effect of Woollin:] ‘Where the charge is murder and in the rare cases where the simple
direction is not enough, the jury should be directed that they are not entitled to find the
necessary intention, unless they feel sure that death or serious bodily harm was a virtual
certainty (barring some unforeseen intervention) as a result of the defendant’s actions and
that the defendant appreciated that such was the case.’
Matthews and Alleyne [2003] Crim LR 553 (CA)
‘In our judgment, however, the law has not yet reached a definition of intent in murder in
terms of appreciation of a virtual certainty. … we do not regard Woollin as yet reaching or
laying down a substantive rule of law. …
‘Having said that, however, we think that, once what is required is an appreciation of virtual
certainty of death, and not some lesser foresight of merely probable consequences, there is
very little to choose between a rule of evidence and one of substantive law. …
‘If the jury were sure that the appellants appreciated the virtual certainty of [V’s] death when
they threw him from the bridge and also that they then had no intention of saving him from
such death, it is impossible to see how the jury could not have found that the appellants
intended Jonathan to die.’
f.
contextual meaning
Woollin [1999] AC 92
‘I approach the issues arising on this appeal on the basis that it does not follow that “intent”
necessarily has precisely the same meaning in every context in the criminal law.’
? Exposure: s.66 Sexual Offences Act 2003
(1) A person commits an offence if—
(a) he intentionally exposes his genitals, and
(b) he intends that someone will see them and be caused alarm or distress.
C.
The Law Commission’s proposals:
The first model:
(1) Subject to the proviso set out below:
(a) A person acts “intentionally” with respect to a result when he or she acts either:
(i)
in order to bring it about, or
(ii)
knowing that it will be virtually certain to occur; or
(iii) knowing that it would be virtually certain to occur if he or she were to succeed in his or her
purpose of causing some other result.
(2) Proviso: a person is not to be deemed to have intended any result, which it was his or her specific
purpose to avoid.
The Law Commission’s conclusion (Law Com No.304):
(1) A person should be taken to intend a result if he or she acts in order to bring it about.
(2) In cases where the judge believes that justice may not be done unless an expanded
understanding of intention is given, the jury should be directed as follows: an intention
to bring about a result may be found if it is shown that the defendant thought that the
result was a virtually certain consequence of his or her action.
Further reading on intention:
Simester & Chan, ‘Intention Thus Far’, [1997] Crim LR 704
Williams, ‘Oblique Intent’, [1988] C.L.J. 417
Norrie, ‘After Woollin’, [1999] Crim LR 532
Simester & Shute, Letter, [2000] Crim LR 204
Norrie, ‘Beyond Orthodox Subjectivism and Moral Contextualism’ [2006] Crim LR 471
3.
Recklessness
A.
advertent recklessness
Cunningham [1957] 2 QB 396 (CA)
Stephenson [1979] QB 695 (CA)
‘A man is reckless when he carries out the deliberate act appreciating that there is a risk that
damage to property may result from his act. It is however not the taking of every risk which
could properly be classed as reckless. The risk must be one which it is in all the circumstances
unreasonable for him to take.’
B.
inadvertent recklessness
Caldwell [1982] AC 341
‘Nevertheless, to decide whether someone has been “reckless” as to whether harmful
consequences of a particular kind will result from his act, as distinguished from his actually
intending such harmful consequences to follow, does call for some consideration of how the
mind of the ordinary prudent individual would have reacted to a similar situation. If there
were nothing in the circumstances that ought to have drawn the attention of an ordinary
prudent individual to the possibility of that kind of harmful consequence, the accused would
not be described as “reckless” in the natural meaning of that word for failing to address his
mind to the possibility; nor, if the risk of the harmful consequences was so slight that the
ordinary prudent individual upon due consideration of the risk would not be deterred from
treating it as negligible, could the accused be described as “reckless” in its ordinary sense if,
having considered the risk, he decided to ignore it.
‘In my opinion, a person charged with an offence under section 1 (1) of the Criminal Damage
Act 1971 is “reckless as to whether any such property would be destroyed or damaged if” (1)
he does an act which in fact creates an obvious risk that property will be destroyed or
damaged and (2) when he does the act he either has not given any thought to the possibility
of there being any such risk or has recognised that there was some risk involved and has
nonetheless gone on to do it.’ (per Lord Diplock)
Lawrence [1982] AC 510
‘Recklessness on the part of the doer of an act does presuppose that there is something in the
circumstances that would have drawn the attention of an ordinary prudent individual to the
possibility that his act was capable of causing the kind of serious harmful consequences that
the section which creates the offence was intended to prevent, and that the risk of those
harmful consequences occurring was not so slight that an ordinary prudent individual would
feel justified in treating them as negligible. It is only when this is so that the doer of the act
is acting “recklessly” if before doing the act, he either fails to give any thought to the
possibility of there being any such risk or, having recognised that there was such risk, he
nevertheless goes on to do it.’ (per Lord Diplock)
C.
advertent recklessness (again)
G [2003] UKHL 50, [2004] 1 AC 1034
‘In the course of argument before the House it was suggested that the rule in R v Caldwell
might be modified, in cases involving children, by requiring comparison not with normal
reasonable adults but with normal reasonable children of the same age. This is a suggestion
with some attractions but it is open to four compelling objections. First, even this
modification would offend the principle that conviction should depend on proving the state
of mind of the individual defendant to be culpable. Second, if the rule were modified in relation
to children on grounds of their immaturity it would be anomalous if it were not also modified
in relation to the mentally handicapped on grounds of their limited understanding. Third,
any modification along these lines would open the door to difficult and contentious argument
concerning the qualities and characteristics to be taken into account for purposes of the
comparison. Fourth, to adopt this modification would be to substitute one misinterpretation
of section 1 for another. There is no warrant in the Act or in the travaux préparatoires which
preceded it for such an interpretation.
‘A further refinement, advanced by Professor Glanville Williams in his article “Recklessness
Redefined” [1981] CLJ 252, 270-271, adopted by the justices in Elliott v C [1983] 1 WLR
939 and commented upon by Robert Goff LJ in that case is that a defendant should only be
regarded as having acted recklessly by virtue of his failure to give any thought to an obvious
risk that property would be destroyed or damaged, where such risk would have been obvious
to him if he had given any thought to the matter. This refinement also has attractions,
although it does not meet the objection of principle and does not represent a correct
interpretation of the section. It is, in my opinion, open to the further objection of overcomplicating the task of the jury (or bench of justices). It is one thing to decide whether a
defendant can be believed when he says that the thought of a given risk never crossed his
mind. It is another, and much more speculative, task to decide whether the risk would have
been obvious to him if the thought had crossed his mind. The simpler the jury’s task, the
more likely is its verdict to be reliable. Robert Goff LJ’s reason for rejecting this refinement
was somewhat similar: Elliott v C, p 950. …
‘A person acts recklessly within the meaning of section 1 of the Criminal Damage Act 1971
with respect to—(i) a circumstance when he is aware of a risk that it exists or will exist; (ii) a
result when he is aware of a risk that it will occur; and it is, in the circumstances known to
him, unreasonable to take the risk.’
D.
Issues—subjectivism in criminal liability
Parker [1977] 1 WLR 600
‘… the appellant was plainly fully aware of all the circumstances of the case. He was fully
aware that what he was handling was a telephone handset made of Bakelite or some such
material. He was well aware that the cradle on to which he admittedly brought down the
handset was made of similar material. He was well aware, of course, of the degree of force
which he was using …
‘In those circumstances, it seems to this court that if he did not know, as he said he did not,
that there was some risk of damage, he was, in effect, deliberately closing his mind to the
obvious — the obvious being that damage in these circumstances was inevitable. In the view
of this court, that type of action, that type of deliberate closing of the mind, is the equivalent
of knowledge’
Elliott v C (1983) 77 Cr App R 103 (DC)
Sexual Offences Act 2003
1. Rape
(1) A person (A) commits an offence if —
(a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,
(b)
B does not consent to the penetration, and
(c)
A does not reasonably believe that B consents.
(2) Whether a belief is reasonable is to be determined having regard to all the
circumstances, including any steps A has taken to ascertain whether B consents.
Hart, ‘Negligence, Mens Rea, and Criminal Responsibility’ in his Punishment and Responsibility (1968)
Chan and Simester, ‘Four Functions of Mens Rea’ (2011) CLJ 381
4.
Strict Liability
A. What is ‘strict liability’?
B. Principle actus non facit reum nisi mens sit rea
C. ‘Correspondence’ principle?
D.
Law on strict liability
a. offence expressly using mens rea terms
b. offence silent on mens rea
i.
presumption of mens rea
Sweet v Parsley [1970] AC 132
‘Our first duty is to consider the words of the Act: if they show a clear intention to create
an absolute offence that is an end of the matter. But such cases are very rare. Sometimes
the words of the section which creates a particular offence make it clear that mens rea is
required in one form or another. Such cases are quite frequent. But in a very large number
of cases there is no clear indication either way. In such cases there has for centuries been
a presumption that Parliament did not intend to make criminals of persons who were in
no way blameworthy in what they did. That means that whenever a section is silent as to
mens rea there is a presumption that, in order to give effect to the will of Parliament, we
must read in words appropriate to require mens rea.’ (per Lord Reid)
B v DPP [2000] 2 AC 428
‘… the starting-point for a court is the established common law presumption that a mental element,
traditionally labelled mens rea, is an essential ingredient unless Parliament has indicated a contrary intention
either expressly or by necessary implication’ (per Lord Nicholls)
ii. statutory construction—context
Sweet v Parsley [1970] AC 132
‘It is also firmly established that the fact that other sections of the Act expressly require mens rea, for
example because they contain the word “knowingly,” is not in itself sufficient to justify a decision that a
section which is silent as to mens rea creates an absolute offence. In the absence of a clear indication in the
Act that an offence is intended to be an absolute offence, it is necessary to go outside the Act and examine
all relevant circumstances in order to establish that this must have been the intention of Parliament.’
iii. (some) relevant factors
 subject matter of offence
Sherras v De Rutzen [1895] 1 QB 918
‘There is a presumption that mens rea, an evil intention, or a knowledge of the
wrongfulness of the act, is an essential ingredient in every offence; but that presumption
is liable to be displaced either by the words of the statute creating the offence or by the
subject-matter with which it deals, and both must be considered …
One is a class of acts which … are not criminal in any real sense, but are acts which in
the public interest are prohibited under a penalty.’
Sweet v Parsley [1970] AC 132
‘… a stigma still attaches to any person convicted of a truly criminal offence, and the more serious or more
disgraceful the offence the greater the stigma. So he would have to consider whether, in a case of this
gravity, the public interest really requires that an innocent person should be prevented from proving his
innocence in order that fewer guilty men may escape.’
B v DPP [2000] 2 AC 428
‘The more serious the offence, the greater is the weight to be attached to the
presumption, because the more severe is the punishment and the graver the stigma
which accompany a conviction.’ (per Lord Nicholls)
‘… section 1(1) creates an offence of a truly criminal character. It was initially punishable on indictment by
a custodial term of up to two years and by subsequent amendment the maximum term has been increased
to 10 years’ imprisonment. Moreover, as Lord Reid observed in Sweet v. Parsley … “a stigma still attaches
to any person convicted of a truly criminal offence, and the more serious or more disgraceful the offence the
greater the stigma.”’ (per Lord Steyn)

punishment
Gammon v A-G for Hong Kong [1985] AC 1 (PC)
‘In their Lordships’ opinion, the law relevant to this appeal may be stated in the following
propositions … (1) there is a presumption of law that mens rea is required before a person
can be held guilty of a criminal offence; (2) the presumption is particularly strong where
the offence is “truly criminal” in character; (3) the presumption applies to statutory
offences, and can be displaced only if this is clearly or by necessary implication the effect
of the statute; (4) the only situation in which the presumption can be displaced is where
the statute is concerned with an issue of social concern, and public safety is such an issue;
(5) even where a statute is concerned with such an issue, the presumption of mens rea
stands unless it can also be shown that the creation of strict liability will be effective to
promote the objects of the statute by encouraging greater vigilance to prevent the
commission of the prohibited act.’

effectiveness
Lim Chin Aik [1963] AC 160 (PC)
‘But it is not enough in their Lordships’ opinion merely to label the statute as one dealing
with a grave social evil and from that to infer that strict liability was intended. It is
pertinent also to inquire whether putting the defendant under strict liability will assist in
the enforcement of the regulations. That means that there must be something he can do,
directly or indirectly, by supervision or inspection, by improvement of his business
methods or by exhorting those whom he may be expected to influence or control, which
will promote the observance of the regulations. Unless this is so, there is no reason in
penalising him, and it cannot be inferred that the legislature imposed strict liability
merely in order to find a luckless victim.’
E.
Strict liability and the European Convention on Human Rights
European Convention on Human Rights, article 6
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty
according to law.
Salabiaku v France (1988) 13 EHRR 379
27. As the Government and the Commission have pointed out, in principle the Contracting
States remain free to apply the criminal law to an act where it is not carried out in the normal
exercise of one of the rights protected under the Convention and, accordingly, to define the
constituent elements of the resulting offence. In particular, and again in principle, the
Contracting States may, under certain conditions, penalise a simple or objective fact as such,
irrespective of whether it results from criminal intent or from negligence. Examples of such
offences may be found in the laws of the Contracting States.
R v G [2008] UKHL 37, at §§ 1-6, 24-31
Sexual Offences Act 2003:
5. Rape of a child under 13
(1) A person commits an offence if—
(a) he intentionally penetrates the vagina, anus or mouth of another person with his
penis, and
(b) the other person is under 13.
‘I would simply endorse the remarks of Dyson LJ in R v G [2003] 1 Cr App R 343, para 33:
“The position is quite clear. So far as article 6 is concerned, the fairness of the
provisions of the substantive law of the contracting states is not a matter for
investigation. The content and interpretation of domestic substantive law is not
engaged by article 6.”
(per Lord Hoffman)
‘The article as a whole is concerned essentially with procedural guarantees to ensure that
there is a fair trial, not with the substantive elements of the offence with which the person
has been charged. As has been said many times, article 6 does not guarantee any particular
content of the individual’s civil rights. It is concerned with the procedural fairness of the
system for the administration of justice in the contracting states, not with the substantive
content of domestic law …’ (per Lord Hope)
Further reading
Horder, ‘A Critique of the Correspondence Principle in Criminal Law’ [1995] Crim LR 759
Horder, ‘Strict Liability, Statutory Construction and the Spirit of Liberty’, (2002) 118 LQR 458
Simester (ed), Appraising Strict Liability (OUP, 2005)
Law Commission, Criminal Liability in Regulatory Contexts (LCCP 195, 2010), parts 3, 4 and 6
CASE
TOPIC
Larsonneur
(1933) 149 LT
142
Actus
Reus/Situational
liability
AG’s R (n. 2 of
1992) [1994]
QB 91
Actus Reus,
Voluntariness,
Automatism
Pittwood
(1902) 19 TLR
37
Assumed Duties
/Omissions
UPSHOT
Even if you are physically forced
to commit the actus reus of an
offence against your will, you have
still committed it for legal
purposes. (not really applicable
anymore?)
Whether ‘driving without
awareness’ due to long exposure
sufficed as defence of automatism.
NO, because he retained some
amount of voluntariness and
ability to steer the vehicle and
react to stimuli. Automatism
requires complete destruction of
voluntary control.
Omissions in breach of contractual
duty causing death of another
renders D liable for manslaughter.
NOTES
Larsonneur, French national previously
deported from UK, was brought back
against her will by the police and charged
with being an alien for whom entry was
not permitted.
Long-haul truck driver crashed and killed
someone charged with causing death with
reckless driving after long exposure
caused him to drive without awareness
and crash
D employed as gatekeeper on railway line;
forgot to close the gate when required; led
to a cart crashing and a man dying. D
charged with manslaughter.
Sheppard
(1862) Le &
Ca 147
Gibbons and
Proctor
(1919) 13 Cr
App R 134;
Lowe [1973] 1
QB 702 (CA);
Emery (1993)
14 Cr App R
(S) 294 (CA)
Assumed
Duties/
Parental Duties
Assumed
Duties/Parental
Duties
R v Nicholls
(1874) 13 Cox
CC 75
Barass (2011)
EWCA Crim
2629
Evans
(Gemma)
(2009) EWCA
Crim 650
Assumed
Duties/
Grandparents
Assumed
Duties/Children
Ruffell (2003)
EWHC 1049
(Admin)
Assumed
Duties/Friends
R v Stone & R v
Dobinson
(1977) QB 354
CA
Assumed
Duties/
Relatives
Fagan v Met.
Police
Commissioner
Assumed
Duties/Parents/
Creation of
dangerous
situation; gross
negligence
manslaughter
Omissions/
Continuing Act
Theory
No duty owed by a parent to a
child who has reached the age of
majority.
Parent is automatically
responsible for caring for a child.
If a parent fails to feed a child and
the child dies of starvation, then
the parent might be liable even
though the failure was an
omission. A parent who stands by
and lets another person harm his
child might be guilty of an offence
(Emery).
Grandmother said not necessarily
to owe a duty to care for a
grandchild.
An adult who had taken on caring
for his elderly mother owed her a
duty of care
Mother who failed to summon
help for her 16-year-old daughter
who collapsed after taking heroin
supplied by her half-sister
convicted of manslaughter.
Half-Sister held not to be under a
duty of care by virtue of blood
relation, but convicted of
manslaughter because under a
duty of care arising from her
creation of the dangerous
situation.
Duty of care can arise when
deceased is a guest of the
defendant in the defendant’s home
D can voluntarily assume duty of
care by taking victim into house,
caring for them/feeding
them/washing them, and
establishing positions of care that
they have to uphold over the
person by doing so.
CA did not address (still
unresolved) issue of whether
defendant is required to do what
is reasonable for ordinary person
in D’s shoes, or reasonable for D to
do, but ignored Ds’ disabilities.
D can be guilty when the mens rea
and actus reus do not begin at the
same time but come to overlap
At the time age of majority was 21; now it
is 18.
Domestic Violence, Crime, and Victims Act
2004, s.5 creates a specific offence of
causing or allowing the death of a child
D’s conviction for failing to help the
deceased upheld in CA; deceased collapsed
from drug overdose at friend’s house and
friend failed to summon help.
Stone and Dobinson were of below
average intelligence and took in Stone’s
sister’s daughter who was anorexic. They
tried to find her old doctor and did feed
her and wash her but did not keep up this
standard and eventually the girl died in an
appalling condition. Conviction for
manslaughter upheld; held that they had
voluntarily taken on a duty of care over
her.
Fagan drove car onto police
commissioner’s foot accidentally; realized
he had done so but intentionally failed to
(1969) 1 QB
439
when the act is a continuing one
that started innocently but
continues when the mens rea
kicks in.
R v Miller
(1983) 2 AC
161 (HL)
Omissions/
Duty of care
arising from
creation of
dangerous
situation
Khan and
Khan (1998)
Crim LR 930
CA
Singh (Gurpal)
(1999) Crim
LR 582 (CA)
Omissions/Duty
of care
R Jenkins v
HM Coroner
for
Portsmouth
etc (2009)
EWHC 3229
Admin
Dalloway
(1847) 2 Cox
CC 273
Omissions/pers
onal beliefs
St George’s v
S(1999) Fam
26
Mental
Capacity Act
2005
Medical law
Airedale NHS
Trust v BLAND
(1993) AC 789
HL
Omissions/Duty
of care
Omissions/
standard of
causation
Omissions/end
of
life/discontinuat
ion of treatment
D who has created a dangerous
situation (even if unintentionally)
has a duty to try and prevent harm
from occurring as a result of it
once aware of having done so. So
even though mens rea may not be
present when the dangerous
situation is created, a later failure
to uphold the duty to prevent
occurrent harm once aware
constitutes the actus reus which
coincides with mens rea.
get off for a while. Court held that the
driving onto the foot was a continuing act
that continued until and past when he
realized what he had done and stayed
there guiltily.
Miller accidentally caused a fire in a house
he was squatting in by falling asleep with a
lighted cigarette; realized the fire once he
awoke but moved to another room and did
nothing. Charged under 1(1) of Criminal
Damage Act 1971 (intending to damage
property belonging to another or being
reckless whether such property would be
damaged) because he created a dangerous
situation and did nothing to prevent harm
from occurring once aware.
Reasonable thing to do given duty
of care need not be direct action to
prevent harm by D, but
summoning of help by D.
Duty of care to a competent (nonchild, non-mentally disabled)
person will not be breached if the
person makes a voluntary choice
to refuse to accept help which is
respected
Landlord failed to get expert help on
resolving carbon monoxide issue, held
responsible.
Held that if D is to be convicted it
must be shown that had he not
omitted to do as he should have
the harmful outcome would not
have occurred.
Doctor must not force treatment
on a patient who is competent and
refuses to consent, even if without
the care the patient will die (St
George’s)
D was driving without keeping proper grip
on the reins; child died; ruled that it had to
be shown that had he not been driving
improperly the child would not have died.
If a patient is unable to express a
view a doctor must act in the best
interests of the patient (MCA)
Principle of sanctity of life does
not compel a medical practitioner
on pain of criminal sanctions (i.e.
duty of care will not be breached
upon failure) to treat a patient
who will die if he does not,
Lawful to omit to continue giving medical
treatment and care to a PVS (persistent
veg. state) patient who has been in that
state for a long time (3 years) considering
that to do so involves invasive
manipulation of the patient’s body to
Roberts [1972]
56 Cr. App. R.
95; [1972]
Crim LR 27
Causation for
ABH
Jordan (1956)
40 Cr App R
152
Causation,
medical
negligence NAI
(positive)
contrary to the express wishes of
the patient and which would
confer no benefit.
Proper test of causation for assault
occasioning ABH not whether D
actually foresaw the conduct of
the victim which resulted in the
actual bodily harm, but whether
that conduct could have
reasonably been foreseen as the
consequence of what D was saying
or doing.
Exceptional medical negligence
can constitute a novus actus
interviens breaking chain of
causation for death
Smith [1959] 2
QB 35
Causation,
medical
negligence NAI
(negative)
If D’s act continues to be an
operating cause of death, medical
treatment will not constitute an
NAI absolving liability
Malcherek
[1981] 2 All ER
422
Causation,
discontinuation
of medical
treatment as
NAI (negative);
test of death
Cheshire
[1991] 3 All ER
670
Causation,
operative cause
of death,
significant
contribution
Blaue [1975] 3
All ER 446
Causation,
religious
rejection of
treatment not
NAI, thin skull
The discontinuance of an attempt
by treatment to save a murder
victim's life does not break the
chain of causation between the
initial injury and the death. Test of
death is brain stem death.
Intervening medical treatment
could only be regarded as
excluding the responsibility of the
defendant if it was so independent
of the defendant's act and so
potent in causing the death, that
the jury regard the defendant's
acts as insignificant. Having shot
the defendant originally is not
insignificant.
The fact that the victim of
wounding declines on religious
grounds a blood transfusion which
would have saved his life does not
break the causal connection
between the act of wounding and
death. It does not lie in the mouth
of an assailant to say that his
victim's religious beliefs which
inhibited him from accepting
certain kinds of treatment were
unreasonable; that the judge
which he has not consented, and which
confers no benefit upon him.
A young girl who was a passenger in the
appellant's car injured herself by jumping
out of the car while it was in motion.
Accused D of assaulting and threatening
her. Conviction held.
Defendant absolved of liability for stab
wound victim’s death from pneumonia
because exceptional medical negligence
ruled to be the cause of death and stab
wound no longer an operating cause as it
was healing.
D stabbed another soldier during a fight in
the barracks. Medical treatment was
palpably wrong, and V died of punctured
lung which was not properly diagnosed.
Had it been, he would not have died, but
D’s act was an operating cause of death.
D stabbed his wife. Doctors turned off life
support once V was determined to be
brain dead. Conviction for murder upheld.
D shot V who was operated on and
developed breathing difficulties after
tracheotomy and died as a result of the
complications from the tracheotomy.
Wounds were healing and no longer lifethreatening, but V’s having been shot was
not insignificant in contributing to his
eventual death.
The victim of a stab wound inflicted by the
defendant when taken to hospital declined
a blood transfusion, which would have
saved her life, on religious grounds, she
being a Jehovah's Witness. The defendant
was acquitted of murder but convicted of
manslaughter on the grounds of
diminished responsibility, the judge
having directed the jury that they might
think that they had little option but to
conclude that the stabbing was an
operative or substantial cause of death.
Pagett (1983)
76 Cr App R
279
Causation,
actions in selfdefence against
D as NAI
(negative);
constructive
manslaughter
Kennedy
(Simon)
[2007] UKHL
38, (2008)
Crim LR 222
Causation,
manslaughter,
supply of drugs,
free and
voluntary fatal
selfadministration
as NAI
Causation,
death resulting
from faultless
but uninsured
and illegal
driving, strict
liability
R v Hughes
[2013] UKSC
56, [2014]
Crim LR 234
Steane [1947]
KB 997,
(1948) 32 Cr.
App. R. 61
Mens Rea,
Specific Intent,
Burden of Proof
Gillick v West
Norfolk and
Wisbech AHA
[1986] AC 112,
[1986] Crim.
L.R. 113
Consent,
capacity of
minors, Gillick
capacity,
capacity to
consent to
medical
treatment
would have been entitled to tell
the jury that the stabbing was an
operative cause of death.
Neither a reasonable act taken for
the purpose of self-preservation,
nor an act done in the execution of
a legal duty, could constitute a
novus actus interveniens for the
purposes of the causal chain in
homicide.
The supplier of a Class A
controlled drug would not be
guilty of manslaughter if the
person to whom the drug was
supplied freely and voluntarily
self-administered it.
In order to cause death by driving,
an
unlicensed/uninsured/disqualifie
d driver charged with strict
liability offence under RTA 1988
s.3B had to be shown to have done
something other than simply
putting his vehicle on the road so
that it was there to be struck.
Some element of fault in his
driving must be present for him to
have caused V’s death.
Where the essence of an offence or
a necessary constituent of an
offence is a particular intent, that
intent must be proved by the
Crown just as much as any other
fact necessary to constitute the
offence and the burden of proving
that intent remains throughout on
the prosecution.
A girl under the age of 16 had the
legal capacity to consent to
medical examination and
treatment, including contraceptive
treatment, if she had sufficient
maturity and intelligence to
understand the nature and
implications of the treatment;
doctors could in exceptional
circumstances therefore give
contraceptive advice and
treatments to such a patient only if
satisfied that she met these
D shot at police officer trying to arrest him,
and attempted to use a pregnant girl as a
human shield against retaliation from the
officer. The officer shot and the girl died.
Conviction for manslaughter upheld;
officer’s actions not NAI.
Victim died of heroin overdose after freely
and voluntarily administering heroin given
to him by D at V’s request, and after D left
the room.
D was an uninsured driver driving
faultlessly other than his lack of insurance
and V who was high on heroin crashed
into him and died. D on appeal not held to
be liable for V’s death.
D charged with doing acts likely to assist
the enemy with intent to assist the enemy,
for broadcasting, after initially refusing,
but relenting for fear of his family’s fate, in
English on Germany’s behalf as directed by
Joseph Goebbels. Appealed conviction,
allowed on grounds that prosecution had
failed to prove that he had the particular
intent required for the conviction.
A judgement had to be made of what was
best for a particular child. Parents were
the best judges of that in the majority of
cases but there might be circumstances
where it was desirable, in a girl's best
interests, that a doctor was entitled to give
contraceptive advice and treatment
without the permission or even knowledge
of the parents. In such circumstances the
doctor had to be satisfied that (a) the girl
understood his advice; (b) he could not
persuade her to tell or allow him to tell her
parents; (c) she was likely to have sexual
Moloney
[1985] AC 905,
[1985] 1 All ER
1025
Mens rea;
Specific Intent;
Foreseeability;
Murder
R v Belfon
[1976] 1 WLR
741
Mens rea;
specific intent
(GBH s18)
Woollin [1999]
1 AC 82,
[1998] Crim.
L.R. 890
Intention; Jury
directions;
Murder;
Woollin
Direction
conditions. The rights of parents
to determine such matters ended
when a child achieved sufficient
intelligence and understanding to
make her own decision.
intercourse with or without contraceptive
treatment; (d) unless she received such
advice or treatment her physical or mental
health was likely to suffer; and (e) her best
interests required such advice or
treatment without the knowledge or
consent of her parents.
Where specific intent is necessary
(as in murder) the probability of
the accused having foreseen the
consequences must be little short
of overwhelming if the intent is to
be established. Judges should
generally refrain from giving
elaborate directions to the jury on
the meaning of intent. If,
exceptionally, a case calls for
directions as to foresight of
consequences the judge need do
no more than pose two questions:
(1) was death or really serious
injury a natural consequence of
the acts of the accused? (2) did he
foresee that consequence as being
a natural consequence of his act? If
both questions are answered in
the affirmative then the jury may
properly infer that the accused
intended that consequence.
defendant slashed the victim with
a razor, inflicting severe wounds
on their face and chest. The Court
of Appeal decided that proof of
specific intent for such wounds
would have to be proven if the
defendant was to be charged with
section 18 assault.
Woollin direction: "Where the
charge is murder and in the rare
cases where the simple direction
is not enough, the jury should be
directed that they are not entitled
to find the necessary intention,
unless they feel sure that death or
serious bodily harm was a virtual
xurdercertainty (barring some
unforeseen intervention) as a
result of the defendant's actions
and that the defendant
appreciated that such was the
case.
M killed his stepfather with whom he had
a positive relationship with a shotgun in
circumstances which he alleged were "just
a lark." He and the victim had been
drinking heavily. His case was that he had
no idea firing the gun would injure his
stepfather. He was convicted of murder
and appealed. Appeal held, allowing the
appeal and substituting a convi ction for
manslaughter.
The trial judge had directed the jury that
they could infer D’s intention to cause his
baby serious harm by throwing him onto a
hard surface after losing his temper if they
were satisfied that, in throwing his son, W
appreciated that there was a substantial
risk of causing serious injury. W
contended that, by using the phrase "a
substantial risk" rather than "a virtual
certainty", the judge had enlarged the
mental element of murder to an
unacceptable extent. Held, allowing the
appeal, that, in departing from the Nedrick
direction and using the phrase "a
The decision is one for the jury to
be reached upon a consideration
of all the evidence."
Re A
(conjoined
twins: surgical
separation)
[2000] 4 All ER
961 pp. 1012,
pp. 1027-1030
and pp. 10621063 [2001]
Crim. L.R. 400
Mens rea;
intention;
murder;
parental rights;
right to life;
omissions;
necessity
Matthews and
Alleyne [2003]
EWCA Crim
192, [2003] 2
Cr. App. R. 30
Mens rea;
Intention;
Murder;
Certainty;
Foreseeability;
Jury Direction
Cunningham
Mens rea;
recklessness;
subjective/Cun
ningham
recklessness;
maliciousness;
foresight
[1957] 2 QB
396, [1957] 2
All E.R. 412
Operation to separate conjoined
twins which would result in the
death of one twin and the (likely)
survival of the other, and the
absence of which would lead to
both twins’ deaths, could be
legally carried out and would not
constitute murder. Different
justifications from each judge:
Lord Justice Alan Ward invoked
the concept of self-defence
suggesting that "If [Gracie] could
speak she would surely protest,
Stop it, [Rosie], you're killing me”;
Lord Justice Brooke relied upon R
v Dudley and Stephens and
invoked necessity as a defence;
Lord Justice Robert Walker
focused upon the intention of the
surgeons in concluding that
surgery could go ahead.
Whilst a defendant's appreciation
of the virtual certainty of the
victim's death was insufficient in
itself to establish the mens rea for
murder, if the defendant
appreciated that death was a
virtual certainty unless some
attempt was made to save the
victim, and the defendant had no
intention of saving him, this would
found the necessary intention for
murder.
In a statutory crime the word
"maliciously" postulates foresight
of the consequences and the
prosecution has to prove either an
intention on the part of the
accused to do the particular kind
of harm in fact done or, the
possibility of the particular type of
harm done having been foreseen,
recklessness as to whether such
substantial risk", the judge had blurred the
distinction between intention and
recklessness and thus between murder
and manslaughter. Conviction of murder
quashed and substituted for manslaughter.
M and A appealed against their convictions for the murder
of J, who had been killed by being thrown into a river and
drowning after telling his attackers he could not swim.
Appellants contended that the judge's direction on intent,
which was his amended form of a Woollin direction, was
put as a substantive rule of law rather than as a rule of
evidence and was therefore a misdirection.
Held, dismissing the appeals, that the law had not yet
reached a definition of intent in murder in terms of
appreciation of virtual certainty. Woollin was not regarded
as yet reaching or laying down a substantive rule of law; but
whilst the judge's direction had amounted to a rule of
substantive law, that was a misdirection, that misdirection
was immaterial, since if the jury were sure that the
appellants appreciated the virtual certainty of J's death
when they threw him off the bridge and also that they then
had no intention of saving him from such death, it was
impossible to see how a jury could not have found that the
appellants intended J to die. The jury could not possibly
have misunderstood the judge's directions to them.
The accused had entered a house and wrenched out the
gas meter, stealing the contents. He left the supply pipe
discharging coal gas, although there was a tap he could
have turned off. The gas percolated into the adjoining
house and endangered the life of a woman living there.
Oliver J. held, on a charge of unlawfully and maliciously
causing to be taken a noxious thing so as to endanger
life, contrary to the Offences against the Person Act
1861s.23 , that "malicious" meant "wicked" in this
context, and that it was unnecessary for the prosecution
to prove that the accused intended the gas to be taken.
The accused was convicted.
Held, on appeal, "maliciously" in a statutory crime
postulates foresight of consequence; as it was
Caldwell
[1982] AC
341, [1981]
Crim. L.R. 392
Mens rea;
recklessness;
objective/Caldw
ell recklessness;
maliciousness;
foresight
harm should occur or not. Gave
rise to ‘Cunningham recklessness’
which asks: did the defendant
foresee the harm that in fact
occurred, might occur from his
actions, but nevertheless continue
regardless of the risk?
House of Lords upheld D’s
conviction and formulated what
has become known as Caldwell
recklessness:
A person is reckless as to whether
property is destroyed or damaged
where:
(1) he does an act which in fact
creates an obvious risk that
property will be destroyed or
damaged and
(2) when he does the act he either
has not given any thought to the
possibility of there being any such
risk or has recognised that there
was some risk involved and has
nonetheless gone on to do it.
impossible to say that a reasonable jury, properly
directed as to the meaning of the word "maliciously" in
the context of s.23 would, without doubt, have
convicted, the conviction must be quashed.
The appellant had been working at a hotel
and had a grudge against his employer. One
night after consuming a large quantity of
alcohol he went to the hotel and started a
fire. The hotel had 10 guests sleeping in the
hotel at the time. Fortunately the fire was
discovered and distinguished early and no
people were actually harmed. The appellant
was convicted of aggravated criminal
damage under s.1(2) Criminal Damage Act
1971 and appealed in relation to the
required level of recklessness. The
defendant argued that he had given no
thought as to the possible endangerment of
life due to his intoxicated state.
NB this test of recklessness no
longer applies see R v G & R
[2003] 3 WLR
G and R
[2003] UKHL
50, [2004]
Crim LR 369
Mens rea;
recklessness;
subjective/Cun
ningham
recklessness;
capacity;
criminal
damage
Dismissal of Caldwell /objective
recklessness and upholding of
Cunningham/subjective
recklessness as the only type of
recklessness in the criminal law.
Held that a person acts recklessly
within the meaning of the Criminal
Damage Act 1971 s.1 in respect of
a result when he is aware of a risk
that it will occur, and it is, in the
circumstances known to him,
unreasonable to take that risk; and
answered in the negative the
question of whether a defendant
could properly be convicted under
s.1 of the 1971 Act on the basis
that he was reckless as to whether
property was damaged when he
gave no thought to the risk and by
reason of his age and/or personal
characteristics the risk would not
The appellants, who were then aged 11 and
12 respectively, went camping without their
parents' permission. During the night they
set fire to newspapers in the yard at the back
of a shop and threw the lit newspapers
under a wheelie bin. They left the yard
without putting out the fire. The burning
newspapers set fire to the bin and
subsequently spread to the shop.
Approximately GBP 1 million worth of
damage was caused to the shop and
adjoining buildings. The appellants' case at
trial was that they expected the newspapers
to burn themselves out on the concrete floor
of the yard and it was accepted that neither
of them appreciated the risk of the fire
spreading in the way that it did. The trial
judge had directed the jury in accordance
with the objective test given in R. v Caldwell
(James) [1982] A.C. 341, [1981] 3 WLUK
124. Objective test overruled and subjective
recklessness upheld as recklessness.
Parker [1977]
2 All ER 37,
[1977] Crim.
L.R. 102
Mens rea;
recklessness;
criminal
damage;
foresight
Stephenson
[1979] QB 695,
[1979] Crim.
L.R. 590
Mens rea;
subjective
recklessness;
foreseeability;
mental illness
Morgan [1976]
AC 182
Mistakes of fact;
consent; rape;
honest belief in
consent
K [2002] 1 AC
462
Mistakes of fact;
age of consent;
reasonable
belief
have been obvious to him, even if
he had thought about it.
Cunningham Recklessness
modified to clarify that wilfully
ignoring the potential for risk does
not protect one from a conviction
under the recklessness limb of s.1
CDA 1971, so that a defendant
would be reckless in the necessary
sense if he carried out a deliberate
act either with the knowledge that
there is some risk of damage
flowing from his act or while
closing his mind to that obvious
risk and carrying out the act
anyway. Closing one’s eyes to an
obvious risk is not a sufficient
defence. In the present case, the
damage to the phone was an
obvious, even inevitable, outcome
of the appellant’s actions.
Deliberately closing his mind to
the risk in these circumstances
was tantamount to knowledge in
the eyes of the court.
A person charged under the
Criminal Damage Act 1971 s.1
must be proved actually to have
foreseen the risk of some damage
resulting from his actions and
nevertheless to have run the risk.
Jury must be left to decide
whether D’s mental illness (in the
case, schizophrenia) might have
prevented the idea of danger
entering his mind at all.
Decided that an honest belief by a
man that a woman with whom he
was engaged with sexual
intercourse was consenting was a
defence to rape, irrespective of
whether that belief was based on
reasonable grounds. NEGATED: it
remained the law until the
enactment of the Sexual Offences
Act 2003.
For the purposes of a charge
under the Sexual Offences Act
1956 of indecent assault of a girl
under the age of 16, the Crown
had to establish that the defendant
did not genuinely believe that the
The appellant had tried (and failed) to place a telephone
call in a street telephone booth. This infuriated him and in a
rage, he slammed the handset onto the telephone, causing
damage to the latter. He had argued that he had not, at all,
contemplated the risk of damage to the telephone.
Convicted under s.1 CDA 1971.
S went into a large straw stack in a field and tried to go to
sleep. He was cold so he lit a fire of twigs and straw in a
hollow in the side of the stack. The stack caught fire and he
was charged, inter alia, with arson. S did not give evidence
at the trial, but an experienced consultant psychiatrist gave
evidence that S had a long history of schizophrenia and that
S was capable of lighting a fire in a straw stack to keep
warm without taking the danger into account. S was
convicted, and appealed on the ground, inter alia, that the
judge had failed to direct the jury that the test of whether a
man was reckless or not was a subjective test.
Sweet v
Parsley [1970]
AC 132, [1969]
2 W.L.R. 470
Strict liability;
drugs; faultless
crime; mens rea
girl was 16 or over at the time of
the incident.
Sexual implications of the
substantive offence repealed by
SOA 2003.
IMPORTANT POINT:
- MR to be read into statute
as a requirement for
liability unless
1. Clear wording in the
statute indicating the
offence is to be one of
strict liability, or
2. Clear and compelling
inference that the
crime is to be one of
SL
A person cannot be guilty of the
offence of being concerned in the
management of premises used for
the purpose of smoking cannabis
or cannabis resin or of dealing in
cannabis or cannabis resin (under
the Dangerous Drugs Act 1965
s.5(b) ) unless (a) (per Lords Reid,
Wilberforce and Diplock) it is
shown to be that person's
intention that the premises be so
used; (b) (per Lord Morris of
Borth-y-Gest and Pearce) it is
shown that that person knew of
the purpose to which the premises
were being put.
UPSHOT:
Unless it is the clear intention of
Parliament that an offence is an
absolute or regulatory offence
(imposing strict liability), the
presumption of mens rea prevails
for ‘true’ crime offences. The
words ‘being concerned in the
management’ under Section 5(b)
had to be read as importing a
mens rea of knowledge as to the
use of the premises for the
prohibited purpose, therefore the
offence was a ‘true crime,’ not a
regulatory crime.
R v G [2008]
UKHL 37 at
Strict liability;
mens rea; child
Issue: had D’s right to fair trial
been denied (i.e. because strict
G was 15 at time of offence; complainant was 12. They had
sex, G believing and having been told by complainant that
she was 15.G was charged with rape of child under 13.
para 1-6, 2431, [2008]
Crim. L.R. 818
R v Latimer
[1886] 17
Q.B.D 359
sex offences;
young
offenders;
proportionality;
right to respect
for private and
family life
Transferred
Malice;
Coincidence of
Actus Reus and
Mens Rea;
liability of s.5 argued to be
incompatible with right to
presumption of innocence)?
Decision: no
Compatible with a child’s rights
under ECHR art.8 to convict of
rape contrary to SOA 2003 art.8
(rape of child under 13) in
circumstances where the agreed
basis of the plea established that
offence also fell within ambit of
s.13; s.5 is strict liability offence
requiring intent to penetrate but
not intent to penetrate child under
13 specifically. Act designed to
protect children against
pedophilia and to prevent children
under 13 from engaging in sexual
activity with others. If you have
sex with a child you take it at your
own risk whether they are under
13 and what offence you are liable
for regardless of what age you
justifiably think they are.
The issue in the case was whether
it was possible to convict the
defendant of the s.20 OAPA 1861
offence in a situation where he
had intended to harm another and
only accidently harmed his actual
victim. In effect, the question was
whether the mens rea of the
offence could be transferred from
the intended victim to the actual
victim (with the actus reus) being
already directed at the actual
victim.
Held
The court held that it is possible to
use the doctrine of transferred
malice outside of the bounds of
murder cases. It was therefore
possible to rely upon in in cases
such as for a s.20 OAPA situation
of inflicting of bodily injury.
Pembliton ((1874) LR 2 CCR
119was distinguished on the
grounds that it applied only to a
particular kind of malice –
G also argued that being charged under s.5 and not s.13 was
disproportionate.
G argued that strict liability offences create a presumption
that the accused had done something of which he was
innocent, and that he had done something which was
morally blameless as the complainant had willingly agreed
to have sex with him.
Response: The article as a whole is concerned essentially
with procedural guarantees to ensure that there is a fair
trial, not with the substantive elements of the offence with
which the person has been charged. As has been said many
times, article 6 does not guarantee any particular content of
the individual’s civil rights. It is concerned with the
procedural fairness of the system for the administration of
justice in the contracting states, not with the substantive
content of domestic law.
And anyway the offence is to protect children from
pedophilia and prevent them from having sexual activity
(though this may be debatable as to morality of it).
Thabo Meli
[1954] 1 WLR
228, [1954] 1
All E.R. 373
Coincidence of
Actus Reus and
Mens Rea;
murder;
continuing act
malicious injury to property
(there transferring malice was not
allowed, but this was because
there was an attempt to transfer
malice from an offence against
property to an offence against the
person, which are completely
different offences). Therefore, the
Defendant was held to be liable for
the injuries of his actual victim
despite having no intention to
injure her.
Defendants planned to kill victim
and make it seem like an accident.
They struck victim in a hut, and
thinking he was dead, left him
outside where he ultimately died
of exposure, not the blows. They
then threw him off a cliff.
“"It appears to their Lordships impossible to divide up what
was really one transaction in this way. There is no doubt
that the accused set out to do all these acts in order to
achieve their plan and as parts of their plan; and it is much
too refined a ground of judgment to say that, because they
were under a misapprehension at one stage and thought
that their guilty purpose and been achieved before in fact it
was achieved, therefore they are to escape the penalties of
the law."
They appealed against their
convictions on the grounds that
the actus reus and mens rea of the
crime did not coincide. That is to
say when they formed the
intention to kill, there was no
actus reus as the man was still
alive. When they threw him off the
cliff, there was no mens rea as
they can intend to kill someone
they believed was already dead.
Conviction upheld; the act of
beating him and throwing him off
the cliff held to be a continuing act.
The actus reus of causing death
started with the victim being
struck on the head and
continueduntil he died of exposure.
It was sufficient for the
prosecution to establish that at
some time during that chain of
events the defendants had acted
with the requisite mens rea.
Church [1966]
1 QB 59,
[1965] 2
W.L.R. 1220
Coincidence of
Actus Reus and
Mens Rea; test
for constructive
manslaughter;
continuing/seri
es of act(s)
It is not the law that whenever any
unlawful act is committed in
relation to a human being which
resulted in death there must be, at
least, a conviction for
manslaughter. There must be a
degree of mens rea. Leaving aside
Sylvia Notts mocked the appellant's ability to satisfy her
sexually and slapped his face. A fight developed during
which the appellant knocked her unconscious. He tried to
wake her for 30 mins to no avail. He believed she was dead
and threw her body into a river. Medical evidence revealed
that the cause of death was drowning, and she therefore
had been alive when he threw her into the river. The trial
judge made several errors in his direction to the jury and in
the event they convicted of manslaughter rather than
Le Brun [1992]
QB 61, [1991]
3 W.L.R. 653
Coincidence of
Actus Reus and
Mens Rea;
manslaughter;
A-G’s
Reference (no.
3 of 1994)
Coincidence of
Actus Reus and
Mens Rea;
manslaughter;
murder;
transferred
malice; fetus
cases of criminal negligence,
provocation and diminished
responsibility, an unlawful act
causing the death of another
cannot, simply because it is an
unlawful act, render a
manslaughter verdict inevitable.
For such a verdict inevitably to
follow, the unlawful act must be
such as all sober and reasonable
people would inevitably recognise
would subject the other person to,
at least, the risk of some harm
resulting, albeit not serious harm.
Where the assault and eventual
acts causing death are part of the
same sequence of events, the act
which causes death and the
necessary mental state to
constitute manslaughter need not
coincide in point of time for the
offence to be established.
B could be convicted of
manslaughter but not of murder.
An intention to harm the mother
could not be equivalent to intent
to harm the foetus, since they
were two distinct organisms living
symbiotically. There was no basis
for extending the doctrine of
transferred malice to a case where
there had been no intention to
injure the foetus. The mens rea for
murder was not, therefore,
present. However, B could be
guilty of manslaughter resulting
from an unlawful and dangerous
act, for which it was unnecessary
for the act to have been directed
against the person who died as a
result of it or for B to have known
that his act was likely to injure
that person. All that was needed
was proof that B intentionally
stabbed the mother, that the act
murder. The appellant appealed on the grounds of
misdirection.
Held:
Whilst there were several errors in the judge's direction the
conviction for manslaughter was safe; the course of A's
conduct could rightly, in relation to manslaughter as to
murder, be viewed as a series of acts culminating in V's
death, and, on that basis, it did not matter in the present
case whether A believed her to be alive or dead at the time
of the immersion, and accordingly this was a proper case in
which to apply the proviso to s.4(1) of the Criminal Appeal
Act, 1907, and the appeal would be dismissed
A had an argument with his wife in the street outside their
home, during which he struck her unlawfully, without
intending to do her really serious harm, and she fell
unconscious on the highway. He then moved her in an
attempt to conceal the assault. Whilst he was doing this her
head hit the pavement, causing a fatal injury. A was charged
with murder. The jury were directed that they could convict
A of murder or manslaughter (depending on the intention
with which he had first struck his victim) if they were sure
that he had accidentally dropped her, causing her death,
while attempting to move her in order either to get her into
the house against her will or to cover up the previous
assault. The jury acquitted A of murder and convicted him
of manslaughter.
Held, dismissing the appeal, that where the assault and the
eventual act causing death are part of the same sequence of
events, the act which causes death and the necessary
mental state to constitute manslaughter need not coincide
in point of time. The judge's direction, read against the
background of facts and viewed as a whole, was satisfactory
in relation to manslaughter.
B stabbed a pregnant woman, who later gave birth to a
premature child, S, who died after 121 days. Although S had
been wounded in the stabbing, it could not be proved that
the wound contributed to her death. B, convicted of
wounding the mother with intent, was, after S's death,
charged with her murder, but his acquittal was ordered
after it was held that he could not in law be convicted of
murder or manslaughter, even if causation was proved. A
reference was made by the Attorney General under the
Criminal Justice Act 1972 s.36 for a ruling on whether (1)
murder or manslaughter could be committed where
unlawful injury was deliberately inflicted on a mother
carrying a child in utero, where the child was born alive but
subsequently died and the injuries inflicted caused or
contributed to death, and (2) liability for murder or
manslaughter could be negated where death was caused
solely as a result of injury to the mother, as opposed to
direct injury to the foetus.
R v Clinton
[2012] EWCA
Crim 2, [2012]
Crim. L.R. 539
R v Asmelash
[2013] 1 Cr
App R 33,
[2013] Crim.
L.R. 599
R v Dowds
[2012] EWCA
Crim 281
Murder;
Voluntary
manslaughter;
loss of control;
sexual infidelity
caused the death, and that
reasonable people would have
appreciated the risk that some
harm would result. Although the
foetus was not a living person at
the time, it was not unreasonable
on grounds of public policy to
regard S, when she became a living
person, as within the scope of B's
mens rea when he stabbed her
mother, and the actus reus for
manslaughter was completed
when S died.
Issue: whether sexual infidelity
must be wholly excluded from
consideration where features of
the individual case constituted
permissible qualifying triggers.
Murder;
voluntary
manslaughter;
loss of control;
voluntary
intoxication
Held: sexual infidelity might
property be taken into
consideration by virtue of the CJA
2009 s.54 where it was integral to
the facts as a whole, being one of a
number of factors which caused
the defendant to lose control. Act
was designed to prohibit misuse of
sexual infidelity as a qualifying
trigger; so where sexual infidelity
is the only potential trigger,
prohibition is to be applied.
Otherwise it can be taken into
consideration as part of the
background context and entirety
of facts.
Voluntary consumption of alcohol
does not form part of the
circumstances for consideration
under s.54 CJA 2009 in the context
of the partial defence of loss of
self-control.
Murder;
voluntary
manslaughter;
diminished
responsibility;
voluntary
intoxication
The re-formulation of the
statutory conditions for
diminished responsibility within
the Homicide Act 1957 s.2 had not
been intended to reverse the wellestablished rule that voluntary
acute intoxication, whether from
alcohol or any other substance,
D killed wife because of her sexual infidelity. Convicted of
murder. Verdict returned by the jury after the defence
considering diminished responsibility. The judge ruled that
there was insufficient evidence of loss of control for this
issue to be considered by the jury. Clinton appealed.
Appeal allowed, because judge had misdirected herself as to
the relevance of infidelity and wrongly did not leave the
matter of LOSC to the jury.
D argued that the fact that he was drunk at the material
time of the attack was one of the circumstances that had to
be considered in accordance with s.54c (‘a person of D’s sex
and age, with a normal degree of tolerance and selfrestraint and in the same circumstances of D, might have
reacted in the same or similar way to D’); and that he
should not be precluded from advancing the partial defence
of LOSC simply because, entirely coincidentally, he
happened to be intoxicated.
Appeal dismissed; although voluntary intoxication does not
deprive a defendant from the defence of LOSC, a jury is to
ignore it when applying the reasonableness test of s.54c.
The defendant, Dowds (D), killed his partner with a knife by
inflicting 60 wounds on her. He sought to rely on the partial
defence of diminished responsibility for ‘recognised
medical conditions’ under s. 2(1) Homicide Act 1957 as
substituted by s. 52(1) Coroners and Justice Act 2009.
Dowds claimed that he was a binge drinker and was so
drunk at the time of the killing that he could not remember
any of it. According to him, acute intoxication amounted to
‘recognised medical condition’ under s. 2(1)(a) Homicide
Act 1957 as substituted by the Coroners and Justice Act
was not capable of founding the
partial defence of diminished
responsibility.
2009. Therefore, it was capable of causing abnormality of
mental functioning and thus, to found a partial defence.
Issue: Is voluntary acute intoxication capable of founding a
partial defence of diminished responsibility under s. 2(1)
Homicide Act 1957?
Held:
R v Golds
[2016] UKSC
61
Murder;
voluntary
manslaughter;
diminished
responsibility;
jury directions
Lamb [1967] 2
QB 981, [1967]
3 W.L.R. 888
Involuntary
manslaughter;
constructive/
unlawful act
manslaughter;
mens rea
DPP v
Newbury and
Jones [1977]
AC 500, [1977]
Crim. L.R. 359
Involuntary
manslaughter;
constructive/
unlawful act
manslaughter;
mens rea
Dawson
(1985) 81 Cr
Involuntary
manslaughter;
‘Substantial’ in the context of
diminished responsibility defence
means ‘important or weighty’ and
not ‘present rather than illusory or
fanciful, rather than having some
substance’. I.e., substantial means
significant, not more than merely
trivial/having at least some
substance.
Overall, the case can be seen as a
triumph for the traditional English
legal principle of giving words
their ordinary meaning and has
firmly placed control of this
concept in the hands of juries.
Constructive manslaughter could
not be established unless the
prosecution proves at least the
element of intent necessary for the
act to be unlawful
A defendant is guilty of
manslaughter if it is proved that
he intentionally did an act which
was unlawful and dangerous, and
that act caused death; it is
unnecessary that the defendant
had known that the act in question
was unlawful or dangerous.
Regarding test for determining
whether or not the unlawful act is
(1) Voluntary acute intoxication cannot by itself found a
partial defence of diminished responsibility to
manslaughter.
Before the Court of Appeal, G argued that the judge should
have directed the jury that the "substantially impaired" test
would be met if the impairment was more than merely
trivial. The Court of Appeal rejected that submission,
holding that the judge had been correct to direct the jury as
he had.
Held
Appeal dismissed by SC.
D had in jest pointed a revolver at his friend. The revolver
had five chambers in two of which there were live bullets.
Neither were in the chamber opposite the barrel when D
pulled the trigger, still having no intention to fire the
revolver. But, unbeknownst to D who was unfamiliar with
the technical working of the gun, by pulling the trigger the
chamber rotated causing a bullet to be fired, killing V
accidentally. The defence of accident was, however,
withdrawn from the jury by the trial judge, who directed
them that it was manslaughter if death resulted from either
(a) an unlawful and dangerous act of the accused or (b) an
extreme degree of carelessness, negligence, on his part. The
jury found L guilty on both grounds.
On appeal against conviction, held (1) that, mens rea being
an essential ingredient, manslaughter could not be
established in relation to the first ground except by proving
that element of intent without which there could be no
assault; and that the whole statement of the law on the
point was vitiated by misdirections based on an erroneous
concept of the law; and (2) that, since the jury had also been
told the two grounds overlapped and the defence of
accident had not been left to them, the conviction must be
quashed.
The defendants, both teenage boys, had thrown a piece of
paving stone from a railway bridge onto a train which had
been passing beneath them. The object struck and killed the
guard who had been sitting in the driver’s compartment.
The defendants were convicted of manslaughter, and
unsuccessfully appealed, on the ground that they had not
foreseen that their actions might cause harm to any other
person.
The defendant and two other men carried out an attempted
robbery at a petrol station. The cashier at the petrol station
was a 60-year-old man who, unknown to the defendants,
App R 150,
[1985] Crim
LR 383
Watson [1989]
1 W.L.R. 684,
[1989] Crim
LR 733
Adomako
[1995] 1 AC
171, [1994]
Crim. L.R. 757
constructive/
unlawful act
manslaughter;
reasonable
person test
Involuntary
manslaughter;
constructive/
unlawful act
manslaughter;
burglary
Gross
negligence
manslaughter;
medical law
dangerous: the reasonable man
must be taken to know all and
only the facts and circumstances
which the defendant knew.
Regarding harm, emotional
disturbance alone is not sufficient
to constitute harm.
The unlawful act of burglary does
not end with the offender crossing
the threshold of the premises, so
that if in the course of the burglary
he becomes aware of the presence
of a person of particular
vulnerability, and the fact of his
presence causes that person's
death, he may be guilty of
manslaughter.
Adomako test
In cases of manslaughter by
criminal negligence involving a
breach of duty the ordinary
principles of the law of negligence
applied to ascertain whether the
defendant had been in breach of a
duty of care to the victim. On the
establishment of said breach of
duty the next question was that of
establishing causation and, and if
this could be so established,
whether it should be characterised
as gross negligence and therefore
a crime. This is ultimately a
question for the jury, having
regard to the risk of death
involved, asking themselves ‘was
the defendant’s conduct so bad in
all the circumstances that it ought
to amount to criminal?’
suffered from a heart disease. Dawson had pointed a replica
handgun at the victim and his partner had banged a pickaxe handle on the counter. Money was demanded, but the
victim pressed the alarm button and the defendants fled
empty handed. Shortly afterwards the victim collapsed and
died from a heart attack.
The defendants were convicted and successfully appealed
to the Court of Appeal, following a misdirection by the trial
judge. Watkins LJ held that
(a) if the jury acted upon the basis that emotional
disturbance was enough to constitute harm then, they
would have done so upon a misdirection. A proper direction
would have been that the requisite harm is caused if the
unlawful act so shocks the victim as to cause him physical
injury. (b) Regarding the test for determining whether or
not the unlawful act was dangerous, he stated: “This test
can only be undertaken upon the basis of the knowledge
gained by a sober and reasonable man as though he were
present at the scene of the crime and watched the unlawful
act being performed … he has the same knowledge as the
man attempting to rob and no more.”
The defendant had burgled a house occupied by an 87-yearold man who suffered from a heart condition. The
defendant disturbed the victim, and verbally abused him,
but made off without stealing anything. The police were
called shortly afterwards, and a local council workman
arrived to repair the windows broken by the defendant in
gaining entry. An hour and a half after the burglary the
victim had a heart attack and died. The defendant was
convicted of manslaughter but appealed on two grounds i)
that the jury was misdirected since at the time of the
unlawful act of burglary D did not have knowledge of the
victim’s frailty; and ii) in answer to a question on a different
point after retirement were given a direction which
introduced a fresh dimension into their task.
First ground of appeal rejected; second ground accepted;
conviction overturned.
The defendant, an anaesthetist, was acting as such during
an eye operation, which involved paralysing the patient,
when a tube became disconnected from a ventilator. The
patient suffered a cardiac arrest and subsequently died. The
defendant was convicted of the manslaughter of the patient
by breach of duty.
On appeal against conviction the Court of Appeal (Criminal
Division) dismissed the appeal.
Honey Rose
[2017] EWCA
Crim 1168
Winterton
[2018] EWCA
Crim 2435
H [2005]
EWCA Crim
732
Gross
negligence
manslaughter;
foreseeability;
reasonably
prudent person
test; medical
law
In assessing either the
foreseeability of risk or the
grossness of the conduct in
question, the court was not
entitled to take into account
information which would, could or
should have been available to a
defendant following the breach of
duty in question. The test was
objective and prospective. Were
the situation otherwise, it would
fundamentally undermine the
established legal test of
foreseeability in gross negligence
manslaughter which required
proof of a "serious and obvious
risk of death" at the time of the
breach.
Gross
negligence
manslaughter;
reasonably
prudent person
test;
foreseeability
Reaffirmed prospective objective
nature of the reasonably prudent
person test to be applied by jury in
determining whether a reasonably
prudent person would have
foreseen that the breach of duty
would give rise to a serious and
obvious risk of death.
Sexual assault;
touching
Touching includes touching of V’s
clothing.
Where the touching isn’t
automatically/necessarily sexual,
it is appropriate for the judge to
direct the jury to determine
whether it in fact sexual by
answering in the affirmative i)
whether the touching could be
sexual, and ii) whether,
considering as reasonable persons
An optometrist was not guilty of the gross negligence
manslaughter of a young boy where she had breached her
statutory duty of care to examine the internal structure of
his eyes as part of a routine eye examination and
consequently failed to identify an abnormality on the optic
nerve which ultimately led to his death. That was not
enough to found a case of gross negligence manslaughter as
there had not been a "serious and obvious risk of death" at
the time of the breach.
The judge had confused or elided two separate matters: the
appellant's actual knowledge at the time of the breach, and
the putative knowledge of the reasonably prudent
optometrist in the appellant's position at the time. They
were different concepts; the first being subjective and the
second objective. The test of reasonable foreseeability was
objective. It simply required the notional exercise of putting
a reasonably prudent professional in the shoes of the
person whose conduct was under scrutiny and asking
whether, at the moment of the breach of the duty relied on,
that person ought reasonably to have foreseen an obvious
and serious risk of death.
At its highest, what a reasonably prudent optometrist
would or should have known at the time of the instant
breach was that, if he or she did not carry out a proper
examination of the back of V's eyes, there remained the
possibility that signs of potentially life-threatening disease
or abnormality might be missed. That was not enough to
found a case of gross negligence manslaughter since there
had to be a "serious and obvious risk of death" at the time of
the breach (paras 84-86).
(3) The court did not condone the negligence that the jury
found to have been established in relation to the way that
the appellant examined V and failed to identify the defect
which ultimately led to his death. That serious breach of
duty was a matter for her regulator. However, it did not
constitute the crime of gross negligence manslaughter
(para.95).
A construction site manager's conviction for gross
negligence manslaughter following a labourer's death after
a trench that he was either standing in or at the edge of
collapsed was upheld. The manager had argued that there
was no evidence that he had seen the trench being dug in an
unsafe manner, but the factual matrix was that it was a
question of when, not if, the trench would collapse, and that
was, or should, have been apparent to anybody.
https://www.kennedyslaw.com/tho
ught-leadership/article/appealcourt-makes-important-ruling-onthe-concept-of-foreseeability/
D after having made an unsuccessful sexual proposition to V
grabbed her by the pocket on the side of her pants and
attempted to pull her towards him and also attempted to
place a hand over her mouth but V escaped.
Olugboja
[1982] QB 320
SOA
amendment
1976; definition
of rape;
consent; OLD
LAW
Bree [2007]
EWCA Crim
804, [2007]
Crim LR 900
Consent;
voluntary
intoxication;
capacity to
consent; rape
Ciccarelli
[2011] EWCA
Crim 2665,
[2012] 1 Cr.
App. R. 15
Sexual assault;
reasonable
belief in
consent;
evidence;
burden of
proof;
presumptions
Ali [2015]
EWCA Crim
1279
Consent; sexual
activity
all the circumstances of the case,
the purpose/circumstances of the
touching had in fact been sexual.
Since the amendment of section 1
of the Sexual Offences Act 1956 by
section 1 of the Sexual Offences
(Amendment) Act 1976, the
offence of rape was having sexual
intercourse against the woman's
consent; that the offence was not
limited to cases where sexual
intercourse had taken place as a
result of force, fear or fraud and,
therefore, the judge had properly
directed the jury and left to them
the question whether the
complainant had consented to
having sexual intercourse with the
defendant.
If, through drink, or for any other
reason, a complainant had
temporarily lost her capacity to
choose whether to have sexual
intercourse, she was not
consenting, and subject to the
defendant's state of mind, if
intercourse took place, that would
be rape. However, where a
complainant had voluntarily
consumed substantial quantities
of alcohol, but nevertheless
remained capable of choosing
whether to have intercourse, and
agreed to do so, that would not be
rape.
In a case involving a sexual
offence, the issue of whether a
defendant had reasonably
believed that the complainant was
consenting could only be left to
the jury pursuant to the Sexual
Offences Act 2003 s.75 if there
was some evidence that the
defendant's belief was reasonable.
The simple fact that the defendant
believed the complainant to be
consenting was not, without more,
sufficient to enable the question to
go to the jury.
When dismissing an appeal
against conviction for sexual
activity involving children,
As a matter of practical reality, capacity to consent could
evaporate well before a complainant became unconscious.
However, whether that was so depended on the actual state
of mind of the individuals involved on the particular
occasion. It would be unrealistic to create a grid system that
would enable the answer to those questions to be related to
some prescribed level of alcohol consumption as everyone's
capacity to cope with alcohol was different and even varied
from day to day.
involving
children
Flattery
(1877) 2 QBD
410
Williams
[1923] 1 KB
340, (1924)
17 Cr. App. R.
56
OLD LAW; rape;
consent;
deception
(medical)
OLD LAW; rape;
consent;
submission;
deception
(medical)
including rape and trafficking
within the UK for sexual
exploitation, the court considered
the issue of consent. Where a
vulnerable or immature individual
had allegedly been subjected to
grooming for sexual purposes, the
question of whether real or proper
consent had been given would
usually be for the jury to decide,
unless the evidence clearly
indicated that proper consent had
been given.
Mixed decision; conviction for
rape affirmed.
For conviction: the deception
rendered the consent consent to
something other than sex, thereby
rendering the doctor’s act rape.
Although she consented to what
amounted to sex, she was deceived
as to the nature of the act as she
thought it was a surgical operation
as told to her by the doctor and
assented to by her mother.
Against (1): consent was obtained
by fraud, but she nevertheless
consented to the act of sex the
doctor had with her, and ‘with
regard her age’ it is clearly not a
case where she didn’t know the
nature of the act being done.
For conviction (upheld):
Where a woman is persuaded that
what is being done to her is not
the ordinary act of sex but a
necessary medical procedure then
that is rape since although she
engaged sexual intercourse she
did not consent to that act, but to
what she thought was a medical
procedure.
Against conviction (1):
The only case of rape that doesn’t
involve violence is where a man
induces a married woman to
permit him to have sex with her by
impersonating her husband.
The prisoner professed to give medical and surgical advice
for money. The prosecutrix, a girl of nineteen, consulted
him with respect to illness from which she was suffering. He
advised that a surgical operation should be performed, and
under pretence of performing it, had carnal connection with
the prosecutrix. She submitted to what was done, not with
any intention that he should have sexual connection with
her, but under the belief that he was merely treating her
medically and performing a surgical operation, that belief
being wilfully and fraudulently induced by the prisoner:—
Held, that the prisoner was guilty of rape.
The appellant, who was engaged to give lessons in singing
and voice production to a girl of sixteen years of age, had
sexual intercourse with her under the pretence that her
breathing was not quite right and that he had to perform an
operation to enable her to produce her voice properly. The
girl submitted to what was done under the belief, wilfully
and fraudulently induced by the appellant, that she was
being medically and surgically treated by the appellant and
not with any intention that he should have sexual
intercourse with her:Held, that the appellant was properly convicted of rape.
Linekar
[1995] 3 All
ER 69, [1995]
Crim. L.R. 320
OLD LAW; rape;
consent;
vitiation of
consent;
deception;
fraud;
Otherwise, as per Reg v Barrow it
is not rape where consent is
induced under false pretences.
The only types of fraud which can
negative consent to sexual
intercourse are frauds as to the
nature of the act itself or as to the
identity of the agent. L appealed
against conviction of rape.
The complainant, a prostitute, had agreed
to sexual intercourse for payment but L
had failed to pay. The jury convicted L on
the basis that the complainant's consent
was rendered ineffective because it was
obtained by L's fraud.
Appeal against conviction allowed.
Jheeta [2007]
EWCA Crim
1699, [2008]
Crim. L.R. 144
NEW LAW;
rape; consent;
deception;
presumptions;
Bingham
[2013] EWCA
Crim 823,
[2013] 2 Cr.
App. R. 29
Causing sexual
activity without
consent;
consent;
deception
McNally
[2013] EWCA
Consent;
deception;
In circumstances where an
offender had deceived a
complainant and pressured her
into having sexual intercourse
more frequently than she would
have done otherwise, the
conclusive presumption under the
Sexual Offences Act 2003 s.76 had
no application as the complainant
had not been deceived as to the
nature or purpose of sexual
intercourse.
In considering an offence of
causing sexual activity without
consent and the application of the
conclusive presumption under the
Sexual Offences Act 2003 s.76 that
a defendant intentionally deceived
a complainant as to the purpose of
the relevant act, the word
"purpose" should not be construed
too widely. Section 76 did not
apply where a defendant had used
false identities to make his
girlfriend perform sexual acts on
the internet for his sexual
gratification where she had not
been deceived as to the purpose of
the acts; his deception as to
identity and threatened
consequences of the acts were not
enough.
It was incumbent on the judge to
attempt an analysis of the word
"purpose" if s.76 was to be put to
the jury.
Depending on the circumstances,
deception as to gender could
vitiate consent to sexual activity.
Appeal partially allowed as initially had been charged with
rape because of the deception; however as he had admitted
that some occasions had taken place where V was not fully
consenting the conviction was safe anyway.
B submitted that the judge had been wrong to apply
Devonald, because in that case the true purpose was the
complainant's humiliation rather than the defendant's
sexual gratification. He contended that the judge's direction
was wrong in law because X had never been asked at trial
what she believed B's purpose was and presumably if she
had been asked she would have said sexual gratification, in
which case she had not been misled. Further, he argued that
if the judge was satisfied that s.76 was triggered he should
have directed the jury on the meaning of the word
"purpose" and that the judge had failed to explain that
deceit as to the consequences (that was whether B would
have carried out his threat) and identity were not enough
for the presumption to apply.
It was incumbent on the judge to attempt an analysis of the
word "purpose" if s.76 was to be put to the jury. Not only
was there no analysis, but the jury were not informed that
deception as to identity and consequence were not enough.
Although in a physical sense the acts of assault by
penetration were the same whether perpetrated by a male
or a female, the sexual nature of the acts was, on any
common-sense view, different where the complainant was
Crim 1051;
[2014] QB 593
nature/purpose
of an act
R v Devonald
2008
Consent,
causing sexual
activity without
consent,
deception
Accordingly, a girl who had
engaged in sexual activity with
another girl while claiming to be a
boy was guilty of assault by
penetration.
The defendant, believing the
victim to have treated his
daughter badly during their
relationship, posed as a young
woman to correspond with the
victim online. Using this persona,
the defendant tricked the victim
into masturbating in front of a
webcam with the purpose of
embarrassing the victim. The
defendant was convicted of the
offence of causing activity without
consent under s.4 of the Sexual
Offences Act 2003.
deliberately deceived by a defendant into believing that the
latter was male.
The Court of Appeal upheld the
conviction. The ‘purpose’ of the act
encompassed more than just
personal sexual gratification in
this instance: the victim’s purpose
encompassed sexual gratification
of a non-existent woman, when
the true purpose was his
humiliation. As s.76 applies to
instances of deceit as to the nature
or purpose of the act, it did not
matter that the victim was aware
that the act was sexual in nature.
Lawrence v.
Metropolitan
Police
Commissioner
[1972] AC 626,
[1971] 3
W.L.R. 225
Theft; consent
of owner
On a charge of theft contrary to
the Theft Act 1968s.1(1) , it is not
necessary for the prosecution to
show that the taking was without
the consent of the owner; further,
the provisions of ss. 1 (1) and 15
(1) are not mutually exclusive.
Oxford v Moss
(1979) 68 Cr
App R 183
Theft; property;
confidential
information
Confidential information is not
property which can be stolen.
O, an Italian student, arrived at Victoria Station and went to
a taxi driven by L. He showed L a piece of paper with an
address in Ladbroke Grove. L told him that it was very far
and expensive, and with O's permission took GBP 7 from his
wallet. He then drove O to his destination, a journey for
which the proper fare was about 52 1/2 p. L was charged
with and convicted of theft under s. 1 (1) of the Theft Act
1968.
Held, L was rightly convicted under s.1(1), since the four
required elements were present, namely, (i) a dishonest (ii)
appropriation (iii) of property belonging to another (iv)
with the intention of permanently depriving the owner of it.
(Decision of the Court of Appeal affirmed).
A university student obtained a proof of his examination
paper. It was accepted that he was going to put it back, and
at no time intended to steal any tangible element of the
paper. He was charged with theft of the intangible property,
namely the confidential information. The stipendiary
magistrate dismissed the charge, on the ground that
confidential information could not amount to intangible
property within s.4(1) of the Theft Act 1968. On appeal by
the prosecution, held, dismissing the appeal, that
confidential information was not property capable of being
stolen.
Turner [1971]
1 W.L.R. 901,
[1971] 2 All
E.R. 441
Theft,
‘belonging to
another’
Ghosh 1982
Theft,
dishonesty
Ivey v Genting
Casinos 2017
Theft,
dishonesty
Collins [1973]
QB 100, [1972]
Crim. L.R. 498
Burglary,
trespassing
Jones and
Smith [1976] 1
W.L.R. 672,
[1976] 3 All
E.R. 54
Burglary,
permission,
trespass
R v Valujevs
[2014] EWCA
Crim 2888
Smith 1974
Fraud, abuse of
position,
‘expectation’ to
safeguard
Criminal
Damage
Owner can steal from
himself/herself if item is in lawful
possession/control of someone
else
If partial ownership like a charge
can be taken away by owner at
will, owner cannot steal. Only can
if the V have a independent right
to the thing against the owner.
Dishonesty standard:
1. was the act dishonest by the
reasonable and honest person's
standard (OBJECTIVE TEST)
2. if yes, did D realise that the act
was dishonest according to the
reasonable person's standard
(SUBJECTIVE TEST)
Dishonesty standard:
Scraps 2) of Ghosh. Only need to
determine whether the act was
dishonest by reasonable person
standards, not whether he
appreciated this.
To be a trespasser under s.9(1)(a)
Theft Act 1968 a person must
enter either knowing that he is
trespassing, or acting recklessly as
to whether he is a trespasser or
not. For the purposes of criminal
liability an accused should be
judged on the facts as he believed
them to be and this should include
mistake as to his liabilities under
civil law.
A person who has general
permission to enter a premises
may still be a trespasser if he
enters knowing he is acting in
excess of the permission given or
being reckless as to whether he is
so acting.
For fraud by dishonest abuse of a
position, where a person has been
expected by virtue of that position
‘to safeguard, or not to act against,
the financial interests of another
person,’ the expectation is that of
the reasonable person.
No offence is committed,
therefore, if a person destroys or
‘Part of the point of criminal law is to set standards of
behaviour’ – rule 2 of Ghosh meant that the less someone’s
idea of dishonesty conformed with society’s standards, the
less likely they would be to be charged, but criminal law
should set standards of behaviour that people have to
conform to and should believe in, one being dishonesty.
Clarkson 1971
Complicity,
abetting
Calhaem 1985
Complicity,
counselling
A-G’s
Reference (No.
1 of 1975)
[1975] QB 773,
[1975] 2 All ER
684
Bainbridge
[1960] 1 QB
129, [1959] 3
W.L.R. 656,
Complicity,
procuring
DPP NI v
Maxwell 1978
Complicity,
mens rea
Bryce [2004]
EWCA Crim
1231. [2004] 2
Cr. App. R. 35
Complicity,
mens rea
R v Jogee
[2016] UKSC 8,
[1]-[17], [36][38], [46] and
[61]-[100]
Complicity,
mens rea, joint
enterprise
Complicity,
mens rea
damages property belonging to
another if he does so in the honest
though mistaken belief that the
property is his own, and, provided
that the belief is honestly held, it is
irrelevant to consider whether it is
justifiable.
Mere presence does not usually
constitute an accessory act unless
proven that it itself served to
encourage
Counselling does not need to have
a causal connection with the act
(but must be connected). Need not
have positive influence on the
outcome.
Surreptitiously spiking a driver’s
drink with alcohol and thereby
causing him to commit a drunk
driving offence constitutes
procuring the offence.
Defendant does not need to know
the specific time and date and
location of the principal offence in
advance in order to be found
guilty of being an accessory before
the fact.
Not necessary for the defendant to
have knowledge of the actual
offence committed when he
already aided and abetted the
commission of the offence.
Instead, it was enough if the aider
knew what the type of offence
could be committed or the
essential matters constituting the
offence.
All that was necessary in the
secondary party was foresight of
the real possibility that an offence
would be committed by the
principal, not knowledge that the
principal had actually formed the
intention to do so.
1. Where act involves specific
circumstances, MR requires A to
have knowledge of the existing
facts necessary for act to be
criminal
2. Specific intent: if crime requires
specific intent, MR is intention to
R v Anwar
[2016] EWCA
Crim 551
Complicity,
mens rea
Sadique 2013
Inchoate,
assisting/encou
rage, MR
Anderson
[1986] AC
27, [1985]
Crim. L.R.
651
Conspiracy,
mens rea
Siracusa
(1990) 90 Cr
App R 340,
[1989] Crim
LR 712
SAIK 2006
Gullefer 1990
Conspiracy,
knowledge of
facts required
to make out
offense
Attempt,
merely
preparatory vs
embarking on
crime
assist or encourage act with the
intent required
3. Foresight and intent: foresight
as evidence to infer intent, not
intent itself.
Affirmed Jogee rules; added that
conditional intent is also valid
mens rea.
D need not believe all or which
particular offence of many will be
committed, just believe that his act
will encourage/assist one or more
of them.
‘[B]eyond the mere fact of
agreement, the necessary mens
rea of the crime is, in my opinion,
established if, and only if, it is
shown that the accused, when he
entered into the agreement,
intended to play some part in the
agreed course of conduct in
furtherance of the criminal
purpose which the agreed course
of conduct was intended to
achieve. Nothing less will suffice;
nothing more is required.’
?
Knowledge means awareness that
the property was in fact the
proceeds of crime or intention that
it should be. (money laundering
conspiracy)
Set of actions necessary for attempt
begins, in our view, when the
merely preparatory acts come to an
end and the defendant embarks on
the crime proper. When that is will
depend on the facts in any
particular case. D had not reached
that point by climbing on the fence
to distract dogs and get race
cancelled, he would have had to go
to the bookkeepers to demand his
money back to attempt theft.
Geddes 1996
Attempt,
merely
preparatory
Jones 1990
Attempt,
merely
preparatory
Campbell 1991
Attempt,
merely
preparatory
Tosti 1997
Attempt,
merely
preparatory
Attempt, mens
rea
Khan 1990
Pace and
Rogers 2014
Attempt, mens
rea
Shivpuri 1987
Attempt,
impossible
(mistake of
fact)
M’Naghten
(1843) 10 Cl &
Fin 200
Defence,
disease of mind.
R v Johnson
[2007] EWCA
Crim 1978,
[2008] Crim
LR 132
Majewski
[1977] AC 443,
[1976] Crim.
L.R. 374
Defense, not
knowing nature
of act/that it is
wrong
Intoxication
D had necessary intention for false
imprisonment, but lacking contact
with the pupil he intended to
imprison he had not gone past
mere preparation
‘last act’ test not valid. i.e. act does
not have to be the final act leading
to the commission in order to be
more than merely preparatory.
Having failed to gone to the place
where the crime is intended to be
committed, it is unlikely D could
be said to have more than merely
prepared.
Going to the place of intended
burglary and examining the lock is
more than merely preparatory
Recklessness fine if mens rea of
the offence is recklessness
(attempted rape in that case back
then)
Need intention as to every
element of actus reus.
Recklessness or suspicion
insufficient.
No defence that D was mistaken as
to fact in such a way as to have
made his attempt impossible to
succeed. (thought something was
a drug, attempted to sell, but it
was not a drug)
M’Naghten rule – D presumed to
be sane unless/until clearly
proven that D was at the time of
the act suffering from a defect of
reason caused by a disease of the
mind which meant that either i) he
didn’t know the nature or quality
of his act, or ii) that his act was
wrong (Windle case – means
illegal)
Affirmed that knowledge of
illegality of actions renders D
unable to use insanity defence.
‘wrong’ means ‘legally wrong’ not
‘morally’
Voluntary intoxication no defence
to crimes of basic
intent/recklessness
Can be a defence to crimes of
specific intent but only if D was so
intoxicated that he was unable to
form the specific intent necessary
for the mens rea. Where this
occurs it is irrelevant whether the
intoxication was voluntary or
involuntary since it is being
denied that there was any MR.
Unintentional
intoxication
It was held that Hardie’s state of mind
had to be considered under s 1(2) of the
CDA. Only when he performed the
relevant act (i.e. burning the wardrobe)
could the requirements of an intention
to destroy and or recklessness be
established. Any incapacity resulting
from the taking of Valium should have
been considered and put to the jury as
its effects were relevant. It was held that
the self-administration of a drug does
not necessarily give rise to the
assumption that it could not negatively
affect the mens rea in the same way
illegal drugs or alcohol could. The
conviction was quashed on the basis
that by taking the drug, Hardie could not
have appreciated the risks to property
and persons from his actions. It could
not reasonably be determined that
taking Valium was reckless either.
Heard [2007]
Voluntary
intoxication
Richardson
and Irwin
(1999)
Drunken
mistake
Voluntary intoxication not a
defence to D’s sexual assault
despite having specific intent
(intent to touch). Appeal
dismissed because Parliament in
passing the Sexual Offences Act
2003 can not be taken to have
changed the previous law which
denied a defendant from relying
on voluntary intoxication as a
defence.
Court allowed jury to consider the
effect of drunkenness on their
being mistaken as to consent of
victim (horseplay) when they
threw victim 12ft off balcony after
drinking at student union.
Jaggard v
Dickinson
1981
Drunken
mistake –
exceptionally
allowed for
criminal
damage
Hardie [1985]
1 W.L.R. 64,
[1984] 3 All ER
848
The defendant was entitled to rely on
mistake as a defence under s5(2)(a)
Criminal Damage Act 1971 which
provides that it is a lawful excuse for a
person committing criminal damage
that they believed the person who
owned the property in question would
have consented. This was even so
considering the defendant’s state of
intoxication. As such, this formed a
special statutory exception to the
general rule set down in DPP v Majewski
"no universally logical test for distinguishing between
crimes in which voluntary intoxication can be advanced as a
defence and those in which it cannot; there is a large
element of policy; categorisation is achieved on an offence
by offence basis."
[1976] UKHL 2 which provides that
voluntary intoxication was no excuse for
crimes of basic intent. Whilst voluntary
intoxication is not a defence to criminal
damage, the statutory defence available
under s5(2)(a) Criminal Damage Act
applied regardless of the defendant’s
state of voluntary intoxication.
What if A believes B doesn’t consent (she says stop and is continuously trying to push him off) and
he intends to have sex with her without her consent as he is turned on by rape, but in reality,
unbeknownst to A, B does consent – she is pretending not to consent to play out a strange sexual
fantasy of non-consensual sex, but has not told A this. A has sex with B, believing he raped her.
- Attempted rape?
Seems yes