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Unit 3- In a nutshell
Establishing a Duty of care
Remember to prove liability if there is an omission to act or gross negligent manslaughter you must
prove a duty of care.
Omissions; was there a Duty to act?
Duty to Act
Parents/Child: Gibbons V Proctor (1918)
Duty due to contract
R V Pittwood (1902)
Duty due to public office
R V Dytham (1979)
Voluntary assumption of duty
R V Stone & Dobinson (1977)
Duty arising due to dangerous conduct
R V Miller
Causation
Factual (But for test)- R V White
Legal (Significant operative cause)
a) Only unreasonable actions from defendant will break chain of causation.
b) Actions of 3rd parties will only break chain if they are not reasonably foreseeable
R V Pagett (1983)
R V Jordan (1956)
R V smith (1959)
R V Cheshire (1991) Medical treatment can only break chain of causation if it is so independent of Ds
actions that it renders them insignificant.
R V Malcherek & Steel (1981) Switching off life support machine does not break causal link.
c) Thin skull rule
R V Blaue (1975)
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Mens Rea
Direct Intention
Moloney (1985) : ‘true desire to bring about the consequences’
Indirect/oblique intention: Subjective test
Inferred if the result was virtually certain to occur and the defendant continued with plan/actions.
Moloney (1985): Was death or serious injury a natural consequence of the defendant’s actions?
Hancock & Shankland (1986): The more probable the result, the more likely the defendant foresaw it
and therefore the more likely that it was intended.
R V Woollin (1998): Consequence must be a virtually certain result of the defendant’s actions and
the defendant must appreciate this.
Recklessness: Subjective Test
R V Cunningham: Did the defendant foresee the chance or possibility of the result occurring?
Transferred Malice
R V Latimer (1886)
The Mens rea of the offence towards a different person can be transferred to the victim of the actus
reus provided it is from the same offence.
R V Pembilton (1874)
Mens rea of a different crime will not be transferred eg. Throw stone to injure people but cause
criminal damage to building
Contemporaneity
Was there a continuing act? Fagan V MPC (1969)
Is it a single transaction- all part of the same series of events for the dame ultimate purpose/goal
Thabo Meli (1954)
Murder
MR: Intention to Kill or Cause GBH
If D realises that death or GBH would be a virtually certain result of his/her conduct intention may be
satisfied. (Nedrick (1986)- Rule of evidence rather than law (Matthews and Alleyne (2003).
Evaluation
A new Homicide Act for England and Wales? July 2005
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Identified the following:
Lack of Cohesion due to murder developing as a common law offence which has led to uncertainty
and ambiguities which have had to wait for a case to be sent to a higher appellate court to
change/clairify the law. For example the determination of what constitutes intention took 23 years
to definitively sort out! Hyam V Dpp, Moloney (1985), Hancock & Shankland (1986), Nedrick (1986),
Woollin (1998).
Intention Not right that D can be found guilty of murder when they did not foresee death could be a
consequence even if they though GBH may occur. Particularly since it is not particularly clear to a lay
person what GBH actually means!
Unfair sentencing: Judges should be afforded more discretion when sentencing rather than the
mandatory life sentence to enable judges to differentiate between cold blooded murder and
euthanasia for example.
Suggested murder reforms:
A New Homicide Act covering murder and both types of manslaughter.
1st degree- intention to kill, mandatory life sentence
2nd Degree- intended to cause serious harm, recklessness, partial defence applicable, discretionary
life sentence.
Voluntary Manslaughter
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AR and MR present but Partial defence is likely to be pleaded.
NB/ D will still be charged with Murder.
Diminished Responsibility Homicide Act 1957 s.2
Abnormality of the Mind (R V Byrne 1960).
Loss of Control: Coroners and Justice Act 2009
There must be evidence of a loss of self control (subjective)
Must be a qualifying trigger:
•
Fear of serious Violence
•
Things said or done of ‘grave character’
Justifiable sense of wrongdoing
Person of same age/sex would behave in a similar way.
Remember sexual infidelity is excluded as a trigger.
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Involuntary Manslaughter
Unlawful Act Manslaughter
Must be unlawful criminal act.
Must be a dangerous act: Church (1967)- would a reasonable person would see a risk of some harm?
Must be an act not an omission R V Lowe (1973)
Must have Mens rea for the unlawful and dangerous act R V Lamb (1967), R V Mitchell (1983)
Gross Negligence Manslaughter (Adomako, 1995)
Was there a duty of care? (R V Wacker, 2002)
Was there a breach that caused death? ( R V Becker, 2000)
Was there a risk of death? (R V Singh, 1999)
Mens Rea is Gross Negligence which is a question of fact for the jury to decide (Misra & Srivastava,
2004)
Non-Fatal Offences
Assault:
Common Law offence (R V Venna, 1976: ‘the intentional or reckless causing of an apprehension of
immediate unlawful personal violence’)
Actus reus: Any act that makes victim fear unlawful force may be applied.
Words can amount to an assault (R V Wilson, 1955)
Silent phone call can amount to assault (R V Ireland, 1997)
Victim must fear immediate threat of harm (Tuberville V Savage , 1669)
Mens Rea: Intention or Subjective recklessness
Battery:
Actus Reus: Application of unlawful force on another, a mere touch can be sufficient.
Fagan V MPC. 1969
Haystead V Dpp (2000): Indirect application of force.
Omission may amount to battery: (Santana- Bermudez, 2003)
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Mens Rea: Intention or Subjective recklessness
Common assault: Assault and battery occur at same time to cause minor bruising, grazing, small
cuts, swelling.
ABH (Offences Against the Person Act 1861 s.47)
Minor fractures eg. broken nose, severe bruising, loss of consciousness, small cuts requiring stiches,
psychiatric injury.
Actus Reus: Assault or Battery causing ABH.
‘any hurt or injury calculated to interfere with the health or comfort of the victim’ (R
V Miller,1954)
ABH can include psychiatric injury and nervous shock if it is an identifiable clinical
condition but not fear, distress or panic.
Mens Rea: of either assault or batter (Intention or subjective recklessness) R V Roberts
(1978)
Grevious Bodily Harm s.20 OAPA’1861
Serious injuries, broken bones, dislocated joints and injury causing permanent disability or
disfigurement.
Actus Reus: Unlawfully and maliciously wounding or inflicting GBH (DPP V Smith)
Inflict can mean cause> R V Martin, 1881
Wound > Break in the skin so there is normally bleeding > Eisenhower, 1984
Mens Rea: Intention or Subjective recklessness in causing some physical damage (R V
Grimshaw,1984)
Grevious Bodily Harm s.18 OAPA’1861
Actus Reus: Same as section 20
Mens Rea: Intention to cause GBH or subjective recklessness
Evaluation
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Inconsistent sentencing
Old fashioned
Assault and battery are still common law offences
Reforms
Clause 1: Intentional Serious injury (Life imprisonment)- may be committed by omission
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Clause 2: Reckless serious injury (7 years)
Clause 3: Intentional or reckless injury (5 Years)
Clause 4: Assault (6 Months)
Defences: Consent
General rule that no liability is incurred if a person inflicts minor harm with the consent of the victim.
Consent may be available to non-fatal, manslaughter and sexual offences, it is not available for
murder. Pretty V UK (2002)
Once defence is raised prosecution may to prove that victim did not consent.
Consent must be valid
V must understand nature of act and what they are consenting to, children are not able to give valid
consent.
Burrell V Harmer (1967)- Tattoist charged with ABH after tattooing 12 & 13 year old> consent invalid
as they had not understood the nature of the act- that pain was involved!
Consent must be informed
R V Dica (2004): V consented to unprotected sex but not the transmission of HIV
Consent by fraud
Will invalidate if V is deceived about D’s identity or nature/quality of the act.
R V Tabassum (2000) D pretended he had medical qualifications and carried out a medical
examination of 3 women’s breasts. Convicted for indecent assault.
Limitations
Victim may consent to assault (including common assault) and battery (Collins and Wilcock, 1984)
Victim cannot consent to ABH or GBH unless:
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Surgery
Tatooing/Piercing
o Extended to branding also (Wilson, 1996)
Sports
o R V Billinghurst, 1978: Consent is only for injuries inflicted during the course of the
game which could be reasonably be expected to occur in the game.
o R V Barnes,2004 Consent to injury occurred within the rules of the game as long as
it is a legitimate sport
Horseplay
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o
o
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R V Jones, 1986: Victim thrown into air by classmates- sustained broken arm and
ruptured spleen.
R V Aitken,1992: Suffered burns after RAF initiation ceremony.
Sexual Acts
o R V Brown, 1993: Activities not conducive to welfare of society, not an exception to
general rule that V cannot consent to injury beyond Common Assault.
o R V Wilson, 1996: Branding no more serious than tattooing and therefore an
exception to general rule.
o R V Slingsby, 1995: Consensual undertaking of sexual activities during which
defendants ring caused internal injuries of which V later died due to Septicaemia.
Evaluation
Irrational distinctions: Compare Brown & Wilson
The law should not determine limits of personal autonomy
Euthanasia
Reform
Law Commission 1995 Consent in Criminal Law: Only serious disabling injury should not be allowed.
Defences: Self-Defence
Prosecution have to prove that D did not act in self defence or that the force used was
unreasonable.
Private Defence (Common Law)
Defence of Property (Criminal Damage Act 1971)
Prevention of Crime (Criminal Law Act 1967)
Force must be necessary
Can be pre-emptive: R V Beckford, 1998
Force must be reasonable
For the jury to determine in relation to the facts of the case taking into account, the threat of harm,
urgency of situation and options available to D. R V Martin (2002)
Excessive Force
R V Clegg, 1995
Mistake
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If D makes an honest mistake and thinks Self- defence is necessary they will be judged on the facts as
they believed them to be even if they may be unreasonable. R V Williams (Gladstone), 1984
However if mistake is made due to voluntary intoxication there will not be a defence R v
O’Grady,1987
Evaluation
All or nothing effect: If D uses too much force renders defence inoperable
Reform
If excessive force used enable Self-defence to be a partial defence reducing conviction to
manslaughter
Defences: Insanity
Defendant must prove that he/she was suffering from insanity on balance of probabilities.
Defect of reason, caused by a disease of the mind, that he or she either did not know the nature and
quality of the act or did not know that what he/she was doing was legally wrong (M’Naughten).
Defect of reason
R V Clarke,1972: a defendant who has reasoning powers but failed to use them cannot rely on
defence.
Disease of Mind
R V Kemp, 1957: May be a physical disease rather than a mental condition- Arteriosclerosis
R V Sullivan, 1984: Epilepsy constitutes a disease of the mind
R V Hennessy, 1989: Hyperglycaemia: Lack of insulin
R V Burgess,1991: Sleepwalking
Did not know the nature and quality of the act was wrong
R V Windle, 1952: Admission after act of possible legal consequences would negate this defence.
Effect
Not guilty by reason of insanity. If charged with murder- indefinite hospital stay Criminal Procedure
Act 1991, if another crime: Supervision order, hospital order, absolute discharge.
Evaluation
Burden of proof lies with defendant
Use of legal rather than medical definition
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Rules are too broad eg. Including sleepwalkers
Rules are too narrow: eliminating the defence for those who are medically insane if they know the
nature and quality of their act.
Reform
Place burden of proof on prosecution
Create a completely new defence not based on M’Naughten rules.
Defences: Automatism
‘An act done by the muscles without any control by the mind’ Bratty V AG NI ,1963
Prosecution need to disprove once raised by defendant with medical evidence.
Total loss of voluntary control
Broome V Perkins, 1987: D had control of vehicle to brake and steer therefor not a total loss of
voluntary control
AG Ref (No2), 1992: D had partial control of the lorry therefore ‘driving without awareness’ not
evidence of loss of voluntary control
Caused by External Factor
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Blow to head, bee sting, anaesthetic, insulin, reflex action, hypnotism, Shock.
o R V Quick, 1973: Diabetes
o R V T,1990: Post traumatic stress disorder
Self-induced automatism
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If due to drink/drugs no defence, subject to intoxication rules.
o R V Lipman , 1970: D and V took LSD and fell asleep. D had hallucination about being
attacked by snakes. D woke to find V strangled with bed sheets stuffed down her
throat. D not able to rely on automatism.
Self-induced automatism may be a defence to specific intent crimes if not caused by
drink/drugs.
o R V Bailey, 1983
Evaluation
Leads to irrational and unfair results Eg. Quick and Hennesey
Reform:
Law Commissions Criminal Code: Should be extended to cover all cases that can be controlled by
drugs, drinking or eating eg. Epilepsy, Diabetes, Sleepwalking
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Defences: Intoxication
Defendant must prove evidence of intoxication then the prosecution must prove that despite the
intoxication the defendant still formed the mens rea of the offence.
D is so intoxicated that they are incapable of forming the mens rea of the offence of which they are
charged.
Voluntary Intoxication
If D is incapable of forming Mens Rea will have defence to specific but not basic intent crimes.
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DPP V Majewski,1977
Involuntary Intoxication
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Spiking, Prescription drugs, unexpected reaction to soporific drugs (sleeping pills eg. Valium)
o R V Hardie, 1984: D will have defence to both specific and basic intent crimes so long
as mens rea for offence was not formed.
Specific Intent Crimes: Mens Rea is intention only
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Murder, S18 OAPA’1861, theft, robbery, burglary
Basic Intent Crimes: Mens Rea can include recklessness.
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Involuntary Manslaughter
S.20 OAPA’1861
S.47 OAPA’1861
Assault
Battery
Evaluation
Distinction between basic and specific intent crimes
Classification not consistently applied- jury should be able to decide in relation to the facts of each
individual case.
Since D could not form mens rea they should not be criminally liable.
Inconsistency
Not all specific intent crimes have a basic counterpart
Reform
Ensure all specific intent crimes have corresponding basic intent offence
Have offence of dangerous intoxication- recommended by the Butler Committee
Should be a complete defence to any crime, due to the absence of any mens rea.
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