Criminal Law 4th Edition Updates September 2003
Chapter 1: Elements of a crime
Insert A p. 12 [new paragraph]
The decision of Bland was found to conform with the European Convention
on Human Rights by the High Court in NHS Trust A v M and NHS Trust B v H
(2000). In particular there was no violation of the right to life protected by article 2 of
the Convention. The High Court stated that the scope of article 2 was restricted to
positive acts, and did not apply to mere omissions.
Chapter 2: Strict liability
Insert p. 33
The European Convention on Human Rights
In R v Mithun Muhamad (2002) the Court of Appeal stated that strict liability
offences did not automatically breach the European Convention on Human Rights. In
Salabiaku v France the European Court of Human Rights stated:
“…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.”
Chapter 3: Murder
Insert A p. 52
The House of Lords intended less pressure to be put on the jury to find intention.
Despite this, in R v Matthews and Alleyne (2003) the Court of Appeal still stated
that a finding of indirect intention was ‘irresistible”. An 18 year old A’level student
had been robbed and then thrown over a bridge. He had told his attackers that he did
not know how to swim and he drowned. The two appellants appealed against their
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conviction for murder on the basis that the jury had been misdirected on the law of
intent. The guidance on indirect intention had been presented as a rule of law (the
jury was told they must find intention when foresight as a virtual certainty was
established) rather than as a rule of evidence (the jury should have been told that they
were entitled to find intention where foresight as a virtual certainty was established).
The Court of Appeal stated “there is very little to choose between a rule of evidence
and one of substantive law” and that on the facts a finding of intention was
“irresistible”.
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Insert p. 54
Sentence
Murder carries a mandatory sentence of life imprisonment under s. 1(1) of the Murder
(Abolition of the Death Penalty) Act 1965. In R v Lichniak the defendants argued
that the life sentence was disproportionate to the offence, in breach of article 3 of the
European Convention on Human Rights, and arbitrary, in breach of article 5 of the
Convention. These arguments were rejected by the House of Lords.
In practice most murderers are not required to stay in prison for the rest of
their life but are released on licence after spending some time in custody. They can
then be returned to prison if their behaviour upon release gives rise to concern.
Guidance given to the judges by the Lord Chief Justice has stated that following
conviction for a ‘normal’ murder a person should usually spend 12 years in prison. If
the murder was a mercy killing the person would only be required to spend eight
years in prison. In exceptionally grave cases, judges were told to state there was no
minimum period.
In the recent past, the final decision as to when murderers should be released
on licence lay with a politician, the Home Secretary. This was found to be in breach
of the European Convention in the case of R v Anderson (2002).
The Home
Secretary, however, seems anxious to retain some control in this area. Provisions
have been added to the Criminal Justice Bill which aim to promote consistency in the
sentencing of murderers. Under these provisions, judges will be required to slot
offenders into one of three categories according to the severity of their crime. For the
first category, actual life will be served by those convicted of the most serious and
heinous crimes: multiple murderers, child killers and terrorist murderers. For the
second category, there will be a starting point of 30 years. This category will include
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murders of police and prison officers and murders with sexual, racial or religious
motives. For the third category, the starting point will be 15 years. In addition, there
are 14 mitigating and aggravating factors which will affect the sentence imposed. It
seems that judges will be able to ignore these guidelines, provided they explain why.
There are presently 22 people serving whole-life tariffs in England and Wales,
none in Europe and 25,000 in America (along with 3, 500 men under sentence of
death).
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Chapter 4: Voluntary manslaughter
Insert p. 69
There still seems to be a difference in approach to the issue in the Court of
Appeal and the Privy Council, with the Court of Appeal giving a very generous
interpretation of R v Smith and the Privy Council taking a more restrictive approach.
In R v Weller the Court of Appeal interpreted Smith as laying down that it was
completely up to the jury to decide which of the defendant’s characteristics to take
into account when applying the objective test. The judge should never tell the jury to
ignore, as a matter of law, any aspect of the defendant’s character when applying the
objective test. A judge could give the jury some guidance as to the weight to be given
to certain characteristics, provided he or she made it clear that it was up to the jury to
choose which characteristics to take into account, and not the judge. Even the
characteristic of jealousy should be left to the jury to consider.
The Privy Council, however, still seems to be reluctant to accept the approach
taken in the House of Lords in R v Smith. In Paria v The State (2003) the Privy
Council found on the facts of the particular case that it was not necessary to decide
whether R v Luc Thiet Thuan or R v Smith should be followed, since on either
approach the defendant’s argument on provocation failed. It also gave a narrow
interpretation to the meaning of a ‘characteristic’ for the purposes of the objective
limb of the provocation defence. In the case, the defendant had been described as
depressed because his father was terminally ill with cancer. The Privy Council
described the defendant’s depression as a ‘normal and natural reaction’ to the illhealth of his father; ‘in the absence of any evidence that his reaction was pathological,
it did not constitute a characteristic within the ambit of R v Smith’. By contrast, in
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Smith there was psychiatric evidence that the defendant was suffering from clinical
depression, which made him less able to control his reactions. In that situation his
mental illness could properly be termed a “characteristic”.
Insert p. 72
Domestic violence
Every year 120 women and 30 men are killed by a current or former partner. The
Home Office has issued a consultation document Safety and Justice: The
Government’s Proposals on Domestic Violence which looks at the problem of
domestic violence. The Government is concerned about the operation of the partial
defences to murder. It considers that recent developments in the law have led to an
extension of the scope and availability of the partial defence of provocation beyond
what was envisaged by section 3 of the Homicide Act 1957, and that the partial
defence is often used in circumstances where the degree of provocation was minimal.
It is particularly worried about domestic homicides where the provocation relied on is
sexual jealousy or infidelity. In such cases, raising the partial defence of provocation
involves an attack on the victim’s reputation. This can be extremely traumatic for the
family, who will perceive that the success of the defence of provocation in such
circumstances means that the victim was to blame. As a result, the Home Secretary
has decided to ask the Law Commission to look at the operation of the defences of
provocation, self-defence and diminished responsibility in homicide cases, with
particular consideration of domestic violence cases.
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Sentencing
In its consultation document: Safety and Justice: The Government’s Proposals on
Domestic Violence, the Government states that it is concerned about the level of
sentencing for manslaughter by reason of provocation in domestic violence
homicides. It considers that the sentences imposed may not adequately reflect the
gravity of the cases, and are out of line with levels of sentencing in other cases of
homicide and serious violence. The Government has decided to refer the issue of
sentencing where there has been a finding of provocation to the Sentencing Advisory
Panel.
Insert p. 74
In R v Dietschmann (2003) the appellant killed his victim in a savage attack.
At the time of the killing he was very drunk and was also suffering from an
abnormality of mind (a form of depression following the death of his aunt, with whom
he had been in a relationship). At his trial for murder D relied on a defence of
diminished responsibility. The House of Lords found that the defence of diminished
responsibility could be successful even if the defendant would not have killed if he
had been sober. The abnormality of mind could still have been a substantial cause of
the killing, which impaired his mental responsibility for what had happened.
Chapter 5: Involuntary manslaughter
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Insert p. 83
In R v Rogers (2003), Rogers and his victim consumed a large quantity of
cider and then purchased heroin in syringes. Rogers held a tourniquet round the
victim’s arm to raise a vein in which the victim could inject himself. The victim had a
heart attack and died. Rogers’ appeal against conviction was rejected. By applying
the tourniquet, Rogers was playing a part in the mechanics of the injection which
caused the victim’s death. He was a secondary party to the supplying of the drug, and
the supplying of the drug had caused the death of the victim.
Insert p. 87
In R v Wacker (2003) the Court of Appeal accepted that the “ordinary
principles of the law of negligence apply” but excluded one specific aspect of these
rules as being inappropriate in the criminal law context. The defendant was a lorry
driver who had been involved in a criminal conspiracy to bring illegal immigrants into
the United Kingdom. He was driving a lorry from Holland to the United Kingdom.
The lorry was designed to carry refrigerated goods and was airtight, with a vent that
could be opened to allow air to enter. Sixty Chinese citizens were hidden inside the
lorry. The defendant shut the vent for over five hours to try and prevent detection
during the Channel crossing. When the lorry was searched by Customs officials, 58
people were found to have died from suffocation. The defendant was convicted of
manslaughter. At his appeal he argued that under one of the ordinary principles of
negligence, a person did not owe a duty of care to another person when they were
both carrying out a joint unlawful activity (known in Latin as the principle of ex turpi
causa).
In this case he and his victims were both carrying out the joint unlawful
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activity of smuggling illegal immigrants into the country. He argued that on the basis
of the ordinary principles of negligence, and in particular the principle of ex turpi
causa, he should not be criminally liable for the deaths of the illegal immigrants.
The Court of Appeal rejected this argument. While the ordinary principles of
negligence applied, this did not extend to the principle of ex turpi causa. This was
because the civil law and the criminal law had different roles and as a matter of public
policy it would not be appropriate to apply this principle to the criminal law. When
Lord MacKay referred in Adomako to the ‘ordinary principles of the law of
negligence’ he did not have in mind the principle of ex turpi causa, which was not
relevant to the facts of the case before him. The duty of care for the people in the lorry
arose the moment the vent was shut, and it was a continuing duty which continued
until the vent was opened. The duty required the defendant to ensure that they had
sufficient air to breathe.
He had breached this duty and was liable for gross
negligence manslaughter.
Insert p. 98
A case that received a lot of media attention was R v Hart (2003). Hart had
caused the Selby railway crash in 2001, in which ten people were killed. It seems that
the night before he had been on the telephone to a woman he had met on the internet
and had not slept at all. He had then been driving along a motorway early in the
morning to go to work, when the prosecution case was that he fell asleep at the wheel,
and went off the road and onto the railway track. A tragic rail accident resulted, and
Hart was convicted of causing death by dangerous driving as it was dangerous to fall
asleep at the wheel.
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Chapter 9: Fraudulent property offences
Insert p. 196
Reform
The Law Commission has published a report in 2002 entitled simply Fraud which
proposes a radical reform of the fraud offences. The Commission has been working
on the law of fraud intermittently since the 1970s. It was keen to reform the law so
that the fraud offences are wide enough to convict fraudsters, without being too vague
or so wide as to impose unacceptable restrictions on personal freedom and amount to
a breach of the European Convention on Human Rights.
In the past, the Law Commission had rejected the idea of a general deception
offence, but this new report has now recommended that a general fraud offence
should be created. This would dramatically simplify the law of fraud. The general
offence would seek to encompass fraud in all its forms. It would not focus on
particular ways or means of committing frauds. All the eight existing fraud offences
in the Theft Acts 1968 and 1978 and the Theft (Amendment) Act 1996, along with the
common law offence of conspiracy to defraud, would be abolished. It is hoped that
by having this general fraud offence the law would be more comprehensible to juries.
To avoid any gaps in the law, a further offence of obtaining services dishonestly
would be created.
General offence of fraud
The general offence of fraud would be committed where a person dishonestly, with
intent to make a gain, or to cause loss, or to expose another to the risk of loss:
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(1) makes a false representation,
(2) wrongfully fails to disclose information, or
(3) secretly abuses a position of trust.
The offence would be triable either way, and on conviction on indictment would be
punishable with up to ten years’ imprisonment.
Obtaining services by deception
An additional offence of obtaining services dishonestly is proposed. This would be
committed where a person by any dishonest act obtains services in respect of which
payment is required, with intent to avoid payment. Deception is not an essential
element of the offence. It would therefore extend to the obtaining of services by
providing false information to computers and machines, which under the present law
may not amount to any offence at all. The offence would be triable either way, and
on conviction on indictment would be punishable with up to five years’
imprisonment.
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Chapter 10: Inchoate offences
Insert p. 204
The recent case of R v Dagnall (2003) may reflect a shift in the courts’
approach to this issue. The Court of Appeal found an attempted rape, emphasising the
fact that the victim had been convinced by the defendant’s conduct that she was going
to be raped. It seems that the victim had spoken to the defendant at a bus stop. When
she started to walk away he had followed her and put his arms around her. He told
her that he wanted to have sexual intercourse with her, and said that no one would
hear if he took her into a dark road and raped her. The victim started to run away
screaming, but the defendant ran after her and pulled her backwards by the hair. He
held her in an arm lock, covered her mouth and dragged her to another bus stop. At
that point a police car arrived and the defendant was arrested. The defendant was
convicted of attempted rape and appealed. At his appeal he argued that his acts had
not been more than merely preparatory, as he had not touched the victim in a sexual
way. The appeal was rejected and the Court of Appeal pointed to the fact that the
victim had been convinced that she was going to be raped.
Chapter 13: General Defences
Insert A p. 285
Up to this point, we have been looking at mistakes where the mistaken facts
suggest there is a defence when the true facts suggest there is not. We now need to
consider the reverse situation, where the true facts suggest there is a defence but the
mistaken facts suggest there is not. In the former situation the mistake will be taken
into account, in the reverse situation it will not. Thus in both situations the most
favourable interpretation is given for the defendant. In R v McKoy (2002) a
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policeman restrained the defendant by holding his arm but without arresting him. The
defendant may have mistakenly believed that he was being arrested. He pushed the
policeman who fell through a window and was prosecuted for an assault occasioning
actual bodily harm and for causing criminal damage. Usually people are entitled to
use reasonable force against a police officer who is not carrying out a lawful arrest, in
order to free themselves. But the trial judge directed the jury that this defence would
not be available to the defendant if he mistakenly thought the police officer was
carrying out a lawful arrest. This was found to be a misdirection. The defendant had
the right to use reasonable force to free himself, regardless of whether he had a
mistaken belief that he was under a lawful arrest.
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Insert p. 294
Mistake
There may not be any actual imminent threat. If the defendant believes there is an
imminent threat this will be sufficient for the purposes of duress. In R v Safi & Ors
(2003) the appellants had been convicted of hi-jacking an Afghan aircraft.
In
February 2000, the appellants had hijacked the plane, armed with guns and grenades.
They had forced the pilot to fly from Afghanistan to Stansted where they threatened to
blow up the plane. They eventually surrendered to the British authorities after a three
day siege.
In their defence, the appellants said they acted under duress of circumstances.
They were members of an Afghan organisation opposed to the Taliban regime. As
four members of the organisation had been arrested and tortured, the appellants
believed that their names were known to the regime. This would have exposed them
and their families to the risk of capture, torture and death. They argued that the duress
continued on landing at Stansted, as there then arose an imminent threat of being
returned to Afghanistan.
At the first trial the jury failed to reach a verdict. At their retrial the trial judge
ruled that for the defence of duress to apply, there had to be an imminent peril.
Following their conviction the defendants appealed to the Court of Appeal. The Court
of Appeal held that the judge had made an error of law. There did not need to be an
imminent peril. What was required was that the appellants believed that there was an
imminent peril. This belief probably needs to be reasonable. The Court of Appeal
stated that the issue of whether the belief needed to be reasonable did not need to be
decided on the facts of the case, but it seemed to prefer this approach. The appeal was
allowed.
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The acquittal of the defendants in these two high profile hijacking cases, lead
to suggestions in the media that the law amounts to a ‘hijackers’ charter’ and that
Britain had become a ‘soft touch’ for hijackers. However, it should be born in mind
that the appeals were only allowed because the trial judges had made an error of law.
If the trial judges had got the law right the juries might still have been prepared to
convict on the basis that the objective part of the test for duress had not been satisfied,
as the defendants’ conduct was disproportionate to their perceived danger.
Self induced duress
The defence will not be available if defendants have voluntarily associated with
criminals knowing that they are likely to be subjected to threats to commit a crime of
the type of which they were charged. They may, for example, have joined a terrorist
organisation or the Mafia. There was a conflict of Court of Appeal cases on the issue.
Some cases, such as R v Harmer suggested the defence would not be allowed if
defendants had merely voluntarily and knowingly exposed themselves to the risk of
being subjected to violence. It did not matter that they had not foreseen that they
would be required to commit crimes. The matter was reconsidered by the Court of
Appeal in R v Z., and R v Harmer is no longer good law on the point. The defence
will now only be disallowed if defendants have voluntarily associated with criminals
knowing that they were likely to be subjected to threats to commit a crime of the type
of which they were charged. A crime is of the same type if it is of the same level of
seriousness. The concept of ‘seriousness’ is in reality too vague to provide clarity for
future cases.
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Insert p. 310
The English law on euthanasia conforms with the European Convention on Human
Rights. In Pretty v UK (2002), Diane Pretty was terminally ill with motor neurone
disease. She was physically incapable of killing herself.
She wished instead to
commit suicide with help from her husband, so that she could die with dignity at a
time of her choosing. The Director of Public Prosecutions (DPP) refused to undertake
not to prosecute her husband if he assisted her suicide. Diane Pretty applied for
judicial review of this refusal, claiming that the law violated the European Convention
on Human Rights. The case went up to the European Court of Human Rights where
she argued that the criminalisation of the acts of assisting suicide amounted to a
violation of article 8, which protects the right to a private life. This article provides:
“(1) Everyone has the right to respect for his private and family life….
(2) There shall be no interference by a public authority with the exercise of this
right except such as is in accordance with the law and is necessary in a
democratic society in the interests of national security, public safety or the
economic well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the rights and
freedoms of others.”
Diane Pretty said this gave her a right to self-determination, including a right to
decide how to live and, a right to decide when and how to die.
The European Court of Human Rights accepted that the English law did
intrude on a person’s private life, but considered that this was allowed under article 8.
States are entitled to regulate through the operation of the general criminal law
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activities which are detrimental to the life and safety of other individuals. Many
terminally ill people are vulnerable and the law seeks to protect them from abuse.
If a person is physically capable of taking their own life, then the issue of
consent need not arise, because they can carry out the suicide themselves without any
criminal sanction. The issue of consent arises more frequently where the person is
physically incapable of taking their own life and therefore wants to give their consent
to someone else taking their life for them.
Diane Pretty argued that the law
discriminated between those who were physically able to take their own lives who
could commit suicide without any criminal sanction being imposed, and those who
were not physically able to do so, and who required assistance from someone else on
whom a criminal sanction could subsequently be imposed. She argued that this
constituted a breach of article 14 of the European Convention, which provides for the
right to enjoy Convention rights without discrimination. This argument was rejected
by the European Court.
Note, however, that competent adults are entitled to refuse medical treatment,
even if the absence of treatment will inevitably lead to their death. A decision to
refuse medical treatment by a patient capable of making the decision does not have to
be sensible, rational or well-considered. This situation is viewed by the courts as
simply allowing nature to take its natural course, so that no individual is treated as
being responsible for the patient’s death. It is not technically euthanasia. The issue
arose in Ms B v An NHS Trust (2002). Following a rare illness, Ms B was left
paralysed from the neck down and was dependent on a mechanical ventilator to
breathe. She remained conscious, intelligent, and highly articulate. Having given
much thought to the subject, she decided that she wanted her ventilator switched off,
which would cause her to die from suffocation shortly afterwards. Her doctors did
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not wish to carry out her instructions and she went to court for an order telling them to
follow her wishes to stop medical treatment. The order was granted and she was
allowed to die shortly afterwards.
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