Criminal Law Cases
R v Kennedy (No 2) [2007] UKHL 38
Unlawful act manslaughter – causation – drug dealers / suppliers
Kennedy prepared a syringe for the victim, who injected himself and died of an overdose.
Following several earlier cases, Kennedy was convicted of unlawful act manslaughter.
However, the reasoning ignored the problem of causation. Generally speaking, where a third
party acts in a free, voluntary and informed way and causes the result, this will break the
chain of causation for the original defendant. The act of the victim, in injecting himself with
the drug, was a free, voluntary and informed action. Kennedy was not a secondary to an
unlawful act of the victim, as injecting himself was not unlawful.
The House of Lords stated the law on drug dealers and unlawful act manslaughter very
clearly, and thereby resolved several years' of academic debate. The court ruled that where a
drug dealer supplies drugs and the victim injects themselves and later dies, the drug dealer
can never be guilty of unlawful act manslaughter, as the chain of causation is broken.
R v Evans [2009] EWCA Crim 650
Duty of care – drugs supply – gross negligence manslaughter
The victim was a drug addict. Her half sister obtained drugs from a dealer and supplied them
to the victim. The victim overdosed and died. Evans was charged and convicted of gross
negligence manslaughter.
The Court of Appeal held that Evans owed a duty of care to the victim to seek help for her.
The duty owed was to counteract the situation which Evans had created by supplying the
drugs. The appeal against conviction was dismissed.
Where a person dies after taking drugs, the supplier cannot be guilty of unlawful act
manslaughter, but can, following Evans, be guilty of gross negligence manslaughter if they
fail to ‘counteract the situation' which they have ‘created'.
R v JTB [2009] UKHL 20
Defence – doli incapax – whether defence ever available to children aged between 10
and 14
Section 34 of the Crime and Disorder Act 1998 abolished the rebuttable presumption of
criminal law that a child aged 10 or over is incapable of committing a criminal offence. The
question for the House of Lords, when faced with a child aged 12 who had pleaded guilty to
causing or inciting a child under 13 to engage in sexual activity, was whether section 34 had
abolished the defence of doli incapax altogether in the case of a child aged between 10 and
14 years, or merely to abolish the presumption that the child had that defence, leaving it open
to the child to prove that he was doli incapax.
The House of Lords held that the defence of doli incapax, and not merely the presumption,
had been abolished completely by section 34 of the Crime and Disorder Act 1998.
R v Bree [2007] EWCA Crim 256
Sexual offences – consent – intoxication of consentee
Whether a person can consent to sexual activity when intoxicated.
Bree went to visit his brother. They went out for the evening with his brother's friends,
including the complainant. They all drank a considerable amount of alcohol. The complainant
remembered little about getting home, but once home remembers being sick and that Bree
and his brother washed her hair. The complainant remembered nothing after this until
regaining consciousness and finding Bree penetrating her sexually. The complainant agreed
that she had not said ‘no', but contended that she had never consented. Bree accepted that the
complainant was intoxicated but claimed that she was capable of consenting, had undressed
herself and appeared willing. The jury convicted Bree of rape. Bree appealed on the basis that
the judge had not made it clear that a person can consent to sexual activity even when
intoxicated.
The Court of Appeal held that
“If, through drink (or for any other reason) the complainant has temporarily lost her capacity
to choose whether to have intercourse on the relevant occasion, she is not consenting…
However, where the complainant has voluntarily consumed even substantial quantities of
alcohol, but nevertheless remains capable of choosing whether or not to have intercourse, and
in drink agrees to do so, this would not be rape.” (at 34)
The Appeal was allowed.
R v EB [2006] EWCA Crim 2945
Sexual offences – consent – HIV status
Whether a person is guilty of rape if he has consensual sex with another without disclosing
HIV status – is consent vitiated?
EB had sexual intercourse with the claimant. EB was HIV positive and failed to disclose this
to the complainant. The question for the Court of Appeal was whether the apparent consent
given by the complainant was ineffective as a result of EB's failure to disclose his status.
The Court of Appeal held that a charge of rape could not lie in these circumstances. It was
held that:
“Where one party to sexual activity has a sexually transmissible disease which is not
disclosed to the other party any consent that may have been given to that activity by the other
party is not thereby vitiated. The act remains a consensual act.” (at 17)
However, this ruling does not mean that there is a defence to a charge resulting from harm
created by the sexual activity (ie passing on HIV), but only relates to consent in sexual
offences.
Cases on Automatism | Free Criminal Law
Cases
A) TOTAL LOSS OF VOLUNTARY CONTROL
Broome v Perkins [1987] Crim LR 271.
The defendant had driven eratically while suffering from hypo-glycaemia (low blood sugar
level caused by an excess of insulin in the bloodstream), but was convicted of driving without
due care and attention because of evidence that from time to time he had exercised conscious
control over his car, veering away from other vehicles so as to avoid a collision, braking
violently, and so on.
Attorney-General's Reference (No 2 of 1992) [1993] 3 WLR 982.
The defendant had driven his heavy goods vehicle into cars parked on the hard shoulder of a
motorway, killing two people. He contended that he had not noticed the flashing lights of the
parked vehicles because he had been in a state of automatism, referred to as "driving without
awareness", induced by "repetitive visual stimulus experienced on long journeys on straight
flat roads". The defence of automatism was left to the jury and the defendant was acquitted.
The Court of Appeal held that the defence of automatism should not have been left to the jury
and that the state described as "driving without awareness" was not capable of founding a
defence of automatism. Lord Taylor CJ said:
"As the authorities... show, the defence of automatism requires that there was a total
destruction of voluntary control on the defendant's part. Impaired, reduced or partial control
is not enough. Professor Brown [who gave expert evidence for the respondent] accepted that
someone "driving without awareness" within his description, retains some control. He would
be able to steer the vehicle and usually to react and return to full awareness when confronted
by significant stimuli."
B) EXTERNAL FACTORS
R v Quick [1973] QB 910.
The defendant, a diabetic, was in a state of hypo-glycaemia. During a blackout he injured a
person. Quick collapsed after the assault and could not recall it. He had taken his insulin in
the morning, but had eaten very little afterwards and had been drinking. His doctor testified
that on a dozen occasions, Quick had been admitted to hospital in a semi-conscious or
unconscious state, due to hypoglycaemia.
The trial judge ruled that this evidence raised the defence of insanity. The Court of Appeal
quashed the defendant's conviction and conceded that there was a defence known to the law
of non-insane automatism, involuntary conduct which is not brought about by a disease of the
mind but through other factors. Lawton LJ considered it an affront to common sense to regard
a person as mad whose symptoms can be rectified by a lump of sugar:
"A malfunctioning of the mind of transitory effect caused by the application to the body of
some external factor such as violence, drugs, including anaesthetics, alcohol and hypnotic
influences cannot fairly be said to be due to disease."
R v T [1990] Crim LR 256.
A few days after having been raped, the defendant was involved in an incident which led to
charges of robbery and causing actual bodily harm. The defendant claimed that she was in a
dream-like state. Medical evidence showed that she was suffering from Post Traumatic Stress
Disorder as a result of the rape, with the consequence that she was in a Disociative State at
the time of the alleged offences, not acting with a conscious mind or will.
Southan J (at Snaresbrook Crown Court) ruled that a proper foundation had been laid for the
defence of automatism to go before the jury. It was his view that an incident such as rape
could have an appalling effect on a young woman, however stable, and that could satisfy the
requirement laid down in Quick that there had to be evidence of "an external factor" causing
a malfunctioning of the mind. Post Traumatic Stress, involving as the evidence in the present
case suggested, a defendant acting as though in a "dream", could therefore amount to
automatism. The jury nevertheless convicted her.
R v Antoniuk (1995) The Times, 28 March.
The defendant was drowsy with drink and her lover found her unconscious on her livingroom floor. The victim then hauled her to bed, her head banging on the stairs, and raped her.
The defendant went to the kitchen and returned with a knife and stabbed her lover. The
defendant argued that she was not responsible for her actions as she had been suffering from
automatism from the shock of being raped. At Kingston Crown Court the trial judge said "If
her amnesia is real, because of automatism, then she is not to be convicted". The jury found
her not guilty of wounding charges.
C) SELF-INDUCED AUTOMATISM
R v Bailey [1983] 1 WLR 760.
The defendant was diabetic. He visited his ex-girlfriend's new boyfriend and whilst there felt
unwell. He took a mixture of sugar and water, but ate nothing. Ten minutes later the
defendant struck the victim on the head with an iron bar. The defendant later claimed to have
been unable to control his actions because he had been in a hypo-glycaemic state. The
defendant was charged under ss18 and 20 of the Offences Against the Person Act 1861. The
trial judge directed the jury that the defence of automatism was not available to the defendant
because his automatism had been self-induced, and the defendant was convicted under s18.
On appeal, the Court of Appeal held that as s18 created a specific intent crime, even selfinduced automatism could be relied upon as evidence that the defendant did not have the
necessary mens rea for the offence (this is consistent with the availability of self-induced
intoxication). In relation to the s20 offence however, the court held that self-induced
automatism would not provide a defence, where there was evidence that the defendant had
been reckless in failing to eat after taking the insulin. The recklessness here would involve
proof that the defendant had known that his failure to eat might make his actions more
aggressive or uncontrollable. As Griffith LJ stated:
"In our judgment, self-induced automatism, other than due to intoxication from alcohol or
drugs, may provide a defence to crimes of basic intent. The question in each case will be
whether the prosecution have proved the necessary element of recklessness. In cases of
assault, if the accused knows that his actions or inactions are likely to make him aggressive,
unpredictable or uncontrolled with the result that he may cause some injury to others, and he
persists in the action or takes no remedial action when he knows it is required, it will be open
to the jury to find that he was reckless."
However, applying the proviso to s2(1) of the Criminal Appeals Act 1968, the appeal was
dismissed: there was evidence that the defendant had taken an iron bar to the victim's house
and medical evidence that such a state could not follow some five minutes after taking sugar
and water. For these reasons no miscarriage of justice occurred.
E) EFFECT
R v Sandie Smith [1982] Crim LR 531.
The defendant, who had been charged with making threats to kill, sought to raise the defence
of automatism based on the effects of her pre-menstrual tension. The Court of Appeal refused
to recognise this as the basis for automatism because, if successful, it would result in the
defendant being released into society without the courts being able to exercise any effective
control over her. The evidence indicated that the defendant needed to have some medical
supervision, and the court would only have the power to ensure this if she was convicted.
CASES ON ACTUS REUS
THE ACTUS REUS MUST BE VOLUNTARY

R v Quick [1973]
The defendant, a diabetic was charged with assaulting his victim. The assault occurred whilst
the defendant was in a state of hypoglycaemia (low blood sugar level due to an excess of
insulin). The court held that the defendant should have been acquitted on the ground of
automatism. His unconscious state had been the result of external factors, ie the taking of
insulin.

Leicester v Pearson (1952)
A car driver was prosecuted for failing to give precedence to a pedestrian on a zebra crossing,
but was acquitted when it was established that his car had been pushed onto the crossing by
another car hitting it from behind.
"STATE OF AFFAIRS" CASES (ACTUS REUS)

R v Larsonneur (1933)
The defendant was a French national who had entered the UK lawfully, but was given only
limited permission to remain in the country. At the end of that period the defendant left
England, not to return to France, but to travel to the Irish Free State. The Irish authorities
made a deportation order against her, and she was forcibly removed from Ireland and
returned to the UK. On arrival in England the defendant was charged under the Aliens Order
1920, with "being found" in the UK whilst not having permission to enter the country. The
defendant was convicted, and appealed on the basis that her return to the UK had not been of
her own free will, in that she had been forcibly taken to England by the immigration
authorities. The Court of Appeal dismissed her appeal on the simple basis that the
prosecution had proved the facts necessary for a conviction.

Winzar (1983)
The defendant had been admitted to hospital on a stretcher. Upon examination he was found
to be drunk and was told to leave. Later he was found in a corridor of the hospital and the
police were called to remove him. The police officers took the defendant outside onto the
roadway, then placed him in a police car and drove him to the police station where he was
charged with "being found drunk in a public highway".
The defendant was convicted, and appealed on the ground that he had not been on the public
road of his own volition. The Divisional Court upheld the conviction holding that all that was
required for liability was that the defendant should be perceived to be drunk whilst on a
public highway. There was no need for the court to have any regard as to how he came to be
there.
OMISSIONS (ACTUS REUS)

Greener v DPP (1996)
The defendant was the owner of a young, powerful Staffordshire Bull Terrier. He had left the
dog chained in an enclosure in his back garden. The dog had strained and bent the clip
releasing its chain. It had escaped from the enclosure and entered a nearby garden where it bit
the face of a young child. Section 3(3) of the Dangerous Dogs Act 1991 provides that if the
owner of a dog allows it to enter a place which is not a public place but where it is not
permitted to be and while it is there it injures any person, he is guilty of an offence. It was
held by the Divisional Court that an offence under s3(3) could be committed by omission.
The word "allows" included taking and omitting to take a positive step. In the present case
the defendant had failed to take adequate precautions. Similar precautions had been taken in
the past but they were obviously inadequate as the fastening was not good enough and the
enclosure not secure.

R v Pittwood (1902)
The defendant was employed as a gatekeeper at a railway crossing. One day he went for
lunch leaving the gate open so that road traffic could cross the railway line. A hay cart
crossing the line was hit by a train. One man was killed, another was seriously injured.
Pittwood was convicted of manslaughter based on his failure to carry out his contractual duty
to close the gate when a train approached.

R v Dytham (1979)
A uniformed police officer saw a man who was being kicked to death. He took no steps to
intervene and drove away when it was over. He was convicted of the common law offence of
misconduct in a public office as he had neglected to act to protect the victim or apprehend the
victim..

R v Stone and Dobinson [1977]
The defendants (common law husband and wife) were of low intelligence. One day they were
visited by S's sister Fanny and took her in providing her with a bed but over the following
weeks she became ill. She did not eat properly, developed bed sores, and eventually died of
blood poisoning as a result of infection. The defendants had not obtained any medical
assistance for Fanny although they had known that she was unwell.
The defendants were convicted of manslaughter.
The Court of Appeal held that the defendants had been under a common law duty to care for
Fanny. This duty had arisen from their voluntarily assuming the responsibility for looking
after her, knowing that she was relying on them. The defendants' failure to discharge this duty
was the cause of the victim's death.

R v Miller (1983)
The defendant had been squatting in a house and fell asleep on a mattress smoking a
cigarette. The defendant was awoken by the flames, but instead of putting the fire out, he
simply got up and went into another room where he found another mattress, and went back to
sleep. As a result, the house was substantially damaged by fire, and the defendant was
convicted of criminal damage.
The House of Lords held that once the defendant awoke and realised what had happened, he
came under a responsibility to limit the harmful effects of the fire. The defendant's failure to
discharge this responsibility provided the basis for the imposition of liability.
CAUSATION (ACTUS REUS)

R v White [1910]
The defendant put potassium cyanide into a drink for his mother with intent to murder her.
She was found dead shortly afterwards with the glass, three-quarters full, beside her. The
medical evidence showed that she had died, not of poison, but of heart failure. The defendant
was acquitted of murder and convicted of an attempt to murder. Although the consequence
which the defendant intended occurred, he did not cause it to occur and there was no actus
reus of murder.

R v Smith [1959]
The defendant was involved in a fight with a fellow soldier during which he stabbed the
victim, resulting in the victim being taken to the medical station where he died about one
hour later. On being charged with murder the defendant argued that the chain of causation
between the stabbing and the death had been broken by the way in which the victim had been
treated, in particular the fact that: (a) the victim had been dropped twice whilst being carried
to the medical station; (b) the medical officer, who was dealing with a series of emergencies,
did not realise the serious extent of the wounds; and (c) the treatment he gave him was
"thoroughly bad and might well have affected his chances of recovery". The defendant was
convicted of murder and appealed unsuccessfully. The court held that the defendant's
stabbing was the "operating and substantial cause" of the victim's death. In this case the
victim clearly died from loss of blood caused by the stab wounds inflicted by the defendant.
1. COMMON LAW ASSAULT AND BATTERY
Logdon v DPP [1976] Crim LR 121.
The defendant, as a joke, pointed a gun at the victim who was terrified until she was told that
it was in fact a replica. The court held that the victim had apprehended immediate physical
violence, and the defendant had been at least reckless as to whether this would occur.
Smith v Superintendent of Woking Police Station [1983] Crim LR 323.
The defendant had terrified a woman occupying a ground floor flat by staring in through the
windows at her. The Divisional Court was satisfied that even though the defendant was
outside the building there was evidence to suggest that the victim was terrified by the
prospect of some immediate violence. It was not necessary for the prosecution to establish
precisely what the victim feared would happen; a general apprehension of violence was
sufficient.
Tuberville v Savage (1669) 2 Keb 545.
The defendant placed his hand on his sword hilt and told the victim, "If it were not assizetime, I would not take such language from you." This was held not to be an assault. The
words accompanying the action (of placing the hand on the sword) clearly demonstrated that
because the assize judge was in town, the defendant was not going to use his sword. There
could thus be no apprehension of immediate force.
2. ASSAULT OCCASIONING ACTUAL BODILY HARM
R v Roberts (1971) 56 Cr App R 95.
The defendant gave a lift in his car, late at night to a girl. He made unwanted advances of a
sexual nature to her which alarmed her. She feared he intended to rape her and as the car was
moving, she opened the door and jumped out suffering grazing and concussion. The
defendant was convicted under s47 and Stephenson LJ stated that the test for causation in law
was to ask whether the result was the reasonably foreseeable consequence of what the
defendant was saying or doing.
R v Constanza [1997] Crim LR 576
The defendant was convicted of occasioning actual bodily harm. The victim was a female excolleague. Between October 1993 and June 1995 he followed her home from work, made
numerous silent telephone calls, sent over 800 letters, repeatedly drove past her home, visited
her against her expressed wishes, and on three occasions wrote offensive words on her front
door. In June 1995 the victim received two further letters which she interpreted as clear
threats. She believed that he had "flipped" and that he might do something to her at any time.
In July she was diagnosed as suffering from clinical depression and anxiety. It was the
doctor's view that the defendant's actions had caused this harm.
The Court of Appeal held that the issue before the Court was whether it was enough if the
Crown have proved a fear of violence at some time not excluding the immediate future. In the
Court's view it was. It was an important factor that the defendant lived near the victim and
she thought that something could happen at any time. The judge was entitled to leave to the
jury the question whether or not she had a fear of immediate violence, and the jury were
entitled to find that she did. The Court rejected the defence submission that a person cannot
have a fear of immediate violence unless they can see the potential perpetrator. It rejected a
further submission that an assault could not be committed by words alone without a physical
action. The indictment made it clear that the assault relied on was that constituted by the last
letter.
3. MALICIOUSLY WOUNDING OR MALICIOUSLY INFLICTING
GRIEVOUS BODILY HARM
R v Martin (1881) 8 QBD 54.
The defendant blocked the exit doors of a theatre, put out the lights in a passageway, and
shouted 'Fire!' as the theatre-goers were leaving the performance. In the ensuing panic, many
were severely injured by being crushed against the locked doors. The defendant was
convicted under s20 and appealed. His conviction was confirmed and it is implicit in the
decision that the indirect nature of the way in which the defendant's acts had caused the harm
presented no bar to liability.
R v Wilson [1984] AC 242.
The defendant motorist had been involved in an argument with a pedestrian, which
culminated in the defendant punching the pedestrian in the face. Lord Roskill stated:
"In our opinion, grievous bodily harm may be inflicted... either where the accused has
directly and violently "inflicted" it by assaulting the victim, or where the accused has
"inflicted" it by doing something, intentionally, which, although it is not itself a direct
application of force to the body of the victim, does directly result in force being applied
violently to the body of the victim, so that he suffers grievous bodily harm."
R v Mowatt [1968] 1 QB 421.
The defendant was convicted under s20 following an attack he had carried out on a police
officer, during which he had rained blows on the officer's face and pushed him roughly to the
ground. Regarding the term 'maliciously' Lord Diplock stated:
"In the offence under section 20... the word "maliciously" does import upon the part of the
person who unlawfully inflicts the wound or other grievous bodily harm an awareness that his
act may have the consequence of causing some physical harm to some other person... It is
quite unnecessary that the accused should have foreseen that his unlawful act might cause
physical harm of the gravity described in the section, ie a wound or serious physical injury. It
is enough that he should have foreseen that some physical harm to some person, albeit of a
minor character, might result."
DPP v Parmenter [1991].
The defendant had caused injury to his young baby by tossing him about in a way which
would have been acceptable with an older child, but not with one so young. He did not realise
that he might cause harm by this action. The House of Lords held that he could not be liable
under s20 as he had not foreseen the risk of any harm. It was not necessary under s20 that he
foresee the grievous bodily harm which must be caused, but the defendant must foresee that
he might cause some harm. An alternative verdict under s47 was substituted.
R v Sullivan [1981] Crim LR 46.
The defendant, who had swerved his car towards a group of pedestrians intending to scare
them was acquitted of a charge under s20, when he lost control of the vehicle and
subsequently collided with the pedestrians causing injury. As he had only foreseen the risk of
'psychic harm' his liability was reduced to s47.
R v Belfon [1976] 1 WLR 741.
The defendant had slashed the victim with a razor causing severe wounds to his face and
chest. The Court of Appeal held that in order to establish the offence under s18 it was
essential to prove the specific intent. References to the defendant foreseeing that such harm
was likely to result or that he had been reckless as to whether such harm would result, would
be insufficient.
Cases on Burglary
R v Brown [1985] Crim LR 212
A witness, having heard the sound of breaking glass, saw the defendant partially inside a
shop front display. The top half of his body was inside the shop window as though he were
rummaging inside it. The witness assumed that his feet were on the ground outside, although
his view was obscured. The defendant was convicted of burglary. He appealed on the ground
that he had not "entered" the building, since his body was not entirely within it.
The Court of Appeal held, dismissing the appeal, that the word "enter" in s9 TA 1968 did not
require that the whole of the defendant's body be within a building. The statement of
Edmund-Davies LJ in R v Collins [1973] (below) that entry must be "substantial and
effective" did not support the defendant's contention. "Substantial" did not materially assist in
the matter, but a jury should be directed that, in order to convict, they must be satisfied that
the entry was "effective". There had clearly been an entry in the present case.
R v Ryan [1996] Crim LR 320
The victim, an elderly householder, found the defendant stuck in a downstairs window of V's
house at about 2.30am. The defendant's head and right arm were inside the window which
had fallen on his neck and trapped him. The rest of his body was outside the window. He was
convicted of burglary and appealed on the grounds that there was no entry because he could
not have stolen anything from within the building on account of being stuck.
The Court of Appeal dismissed the appeal. R v Brown (1985) made it clear that the defendant
could enter even if only part of his body was within the premises. The defendant's inability to
steal anything because he was trapped was totally irrelevant.
R v Collins [1973] QB 100
The defendant, having discovered that a woman was lying asleep and naked on her bed,
stripped off his clothes and climbed up a ladder on to the window sill of the bedroom. At this
moment the woman awoke and, mistakenly believing that the naked form at the window was
her boyfriend, beckoned the defendant in. The defendant then got into her bed and it was only
after the defendant had intercourse with her that the woman realised her error. The
defendant's conviction for burglary (entering as a trespasser with intent to commit rape
contrary to s9(1)(a)) was quashed "on the basis that the jury were never invited to consider
the vital question whether the defendant did enter the premises as a trespasser, that is to say
knowing perfectly well that he had no invitation to enter or reckless of whether or not his
entry was with permission... "
NOTE: Another difficulty of the case lay in determining whether the defendant had entered
the building before or after an invitation to enter had been made. If he was already inside the
room, having climbed through the window frame, and kneeling upon the inner sill (before
any invitation had been made to him) he would already be guilty of burglary for he had
already entered with intent to rape and the victim's subsequent consent could not alter that. If
he was kneeling on the sill outside the window he would not have been guilty of burglary as
the invitation to enter had been made while he was still outside the premises.
R v Walkington (1979) 68 Cr App R 427
The defendant had entered a department store during opening hours, and had approached a
three-sided partition that surrounded a till on the middle of the shop floor. He proceeded to
stand inside the partitioned area and opened the till drawer to see if it contained any money
for him to steal. The defendant was convicted under s9(1)(a) of entering part of a building as
a trespasser with intent to steal.
The Court of Appeal held that the area inside the partition represented "part of a building"
from which the public had been impliedly excluded. The defendant being aware of this had
been correctly convicted.
R v Laing [1995] Crim LR 395
The defendant was found in the stock room of a department store some time after the store
had closed to the public. He was convicted of burglary contrary to s9(1)(a) TA 1968 on the
basis that he was trespassing when he was found by the police. The trial judge had directed
the jury that even though the evidence was that when he entered he was not a trespasser, it
was open to them to decide that he had become one when he was found. However, the Crown
had not sought to argue that he had entered a part of a building as a trespasser by going into
the stock area, which was not open to the public at any time.
The Court of Appeal allowed the defendant's appeal. There was no argument put to the court
that the defendant had entered the store as a trespasser, and the prosecution had opted not to
argue that he became a trespasser by moving from one part of the store to another. A
defendant cannot become a trespasser in a building or part of a building for the purposes of
burglary, where he has previously entered that building, or that part of the building, as a
lawful visitor.
AGGRAVATED BURGLARY
R v Stones [1989] 1 WLR 156
The defendant was arrested shortly after having burgled a house. On being searched he was
found to be in possession of a household knife. The defendant alleged that he carried it with
him because he was under a general threat of attack from a group of men. The defendant was
convicted of aggravated burglary contrary to s10 and appealed on the ground that he had not
been in possession of the knife with intent to use it in the course of the burglary.
The Court of Appeal held that s10 merely required that the defendant had with him a weapon
of offence at the time of the burglary. Applying the mischief rule, the court felt that what
Parliament sought to prevent was the commission of burglary by a defendant who might be
tempted to use any weapon of offence in his possession if challenged or opposed during the
course of a burglary.
R v Kelly [1993] Crim LR 763
The defendant had broken into a house, using a screwdriver to effect entry. When surprised
by the householder, the defendant told him to unplug the video and then pushed the
screwdriver into his ribcage. On leaving the house, the defendant was apprehended by police,
holding a video in one hand and the screwdriver in the other.
The Court of Appeal held that the defendant became guilty of aggravated burglary when he
used the screwdriver to prod the householder in the stomach. It was held that the focus of s10
was use during burglary, so that the screwdriver taken into the house became a weapon of
offence on proof that he intended to use it for causing injury to, or incapacitating, the
householder at the time of the theft.
CASES ON CONSENT
CONSENT TO ACTUAL BODILY HARM
R v Wilson (1996) Times Law Report March 5 1996
The defendant had been charged with assault occasioning a.b.h. contrary to s47 of the
O.A.P.A. 1861. The activity involved the defendant burning his initials onto his wife's
buttocks with a hot knife because she had wanted his name on her body. The Court of Appeal
held that consensual activity between husband and wife in the privacy of the matrimonial
home was not a proper matter for criminal investigation or criminal prosecution. The court
believed that the defendant had been engaged in an activity which in principle was no more
dangerous than professional tattooing. Thus, the court was of the opinion that it was not in the
public interest that his activities should amount to criminal behaviour.
CONSENT TO RISK OF UNINTENTIONAL A.B.H.
R v Billinghurst [1978] Crim LR 553.
During a rugby match and in an off-the-ball incident B punched an opposing player, in the
face fracturing the jaw. B was charged with inflicting grievous bodily harm contrary to s20 of
the Offences Against the Person Act 1861. The only issue in the case was consent. Evidence
was given by the victim that on previous occasions he had been punched and had himself
punched opponents on the rugby field, and by a defence witness, a former International rugby
player, that in the modern game of rugby punching is the rule rather than the exception.
It was argued by the defence that in the modern game of rugby players consented to the risk
of some injury and that the prosecution would have to prove that the blow struck by B was
one which was outside the normal expectation of a player so that he could not be said to have
consented to it by participating in the game. The prosecution argued that public policy
imposes limits on violence to which a rugby player can consent and that whereas he is
deemed to consent to vigorous and even over-vigorous physical contact on the ball, he is not
deemed to consent to any deliberate physical contact off the ball.
The judge directed the jury that rugby was a game of physical contact necessarily involving
the use of force and that players are deemed to consent to force "of a kind which could
reasonably be expected to happen during a game." He went on to direct them that a rugby
player has no unlimited licence to use force and that "there must obviously be cases which
cross the line of that to which a player is deemed to consent." A distinction which the jury
might regard as decisive was that between force used in the course of play and force used
outside the course of play. The judge told the jury that by their verdict they could set a
standard for the future. The jury, by a majority verdict of 11 to 1, convicted B.
R v Jones (Terence) (1986) 83 Cr App R 375.
The defendants were convicted of inflicting grievous bodily harm on two schoolboys, who
had been tossed high in the air and then allowed to fall to the ground by the defendants. The
defendants' evidence was that they regarded this activity as a joke. There was some evidence
showing that the victims, likewise, so regarded this. The judge declined to direct the jury that
if they thought that the defendants had only been indulging in rough and undisciplined play,
not intending to cause harm, and genuinely believing that the victims consented, they should
acquit. On appeal, their appeals were allowed on the basis that consent to rough and
undisciplined horseplay is a defence; and, even if there is no consent, genuine belief, whether
reasonably held or not, that it was present, would be a defence.
R v Aitken and Others [1992] 1 WLR 1066.
The three defendants and a man named Gibson were all RAF officers attending a party to
celebrate the completion of their formal flying training. During the course of the evening the
defendants had, in jest, tried to ignite the fire resistant suits of two fellow officers. When G
indicated that he was leaving the party to go to bed, the defendants manhandled him and set
fire to his fire resistant suit. Despite the rapid efforts of the defendants to douse the flames, G
suffered serious burns. Although it was accepted that the defendants had not intended to
cause injury to G, the defendants were court martialled, and convicted of inflicting GBH
contrary to s20 of the Offences Against the Person Act 1861.
An appeal against conviction was allowed. The Courts-Martial Court of Appeal held that the
judge advocate should have directed the court to consider whether G gave his consent as a
willing participant to the activities in question, or whether the appellants may have believed
this, whether reasonably or not.
OBTAINING PROPERTY BY
DECEPTION
DPP v Ray [1974] AC 370
The defendant had ordered a meal in a restaurant and had consumed it with an honest state of
mind. He then discovered that he was unable to pay for the meal and remained silent as to his
change in circumstances. The defendant waited until the dining area was clear of waiters
before running out. The defendant was convicted under s16(2)(a) of the Theft Act 1968 (now
replaced by the Theft Act 1978).
The House of Lords held that the defendant had exercised a deception by remaining seated in
the restaurant having decided not to pay. His remaining in this position created the implied
and continuing representation that he was an honest customer who intended to pay the bill,
thus inducing the waiters to leave the dining area unattended, giving him the opportunity to
run off without paying.
R v Collis-Smith [1971] Crim LR 716
The defendant had put petrol into his car and then falsely told the attendant that his employer
would be paying for the petrol. The defendant's appeal against conviction under s15 was
successful in the Court of Appeal on the basis that his deception did not arise until after the
property in the petrol had passed to him. (Note: today, the appropriate charge in such a case
would be an offence under s2 Theft Act 1978.)
R v Coady [1996] Crim LR 518
The Court of Appeal quashed the defendant's conviction for obtaining petrol at a self-service
station by the deception that he was authorised to charge the petrol to the account of his
former employer, which he was no longer entitled to do. The fatal flaw in the prosecution
case was that it was clear that the defendant had informed the cashier that the petrol should be
charged to the account only after he had got the petrol.
The court was sceptical about the wider representation that when the defendant drove onto
the forecourt he represented an intention to pay which he did not in fact possess. This was
alleged to be inconsistent with the indistinguishable case of Collis-Smith (1971).
MPC v Charles [1977] AC 177
The defendant had drawn cheques on his account, supported by his cheque guarantee card, in
order to buy gaming chips at a casino. The manager of the casino had given evidence that
questions of creditworthiness did not arise where a valid cheque guarantee card was
proffered.
Nevertheless, the House of Lords affirmed the defendant's conviction under s16(2)(b) of
obtaining a pecuniary advantage by deception. The House of Lords accepted that use of a
cheque and a cheque card implied authority to do so, and that it was to be assumed that the
casino would not have accepted the cheques as supported by the guarantee card, had the truth
been known, ie that the defendant had exceeded his authorised limit.
R v Lambie [1982] AC 449
The defendant used her own credit card knowing that authorisation had been withdrawn. She
was convicted of obtaining a pecuniary advantage by deception from her bank under
s16(2)(b).
The conviction was upheld by the House of Lords on the basis that if the shop assistant had
known the truth she would not have accepted the credit card in payment, hence the use of the
card was an operative deception. The defendant could of course, call the retailer to give
evidence that she was quite happy to accept the credit card in full knowledge of the
defendant's lack of authority, but the retailer is unlikely to want to run the risk of becoming
an accomplice to the defendant's fraud on the credit card company.
R v Goodwin [1996] Crim LR 262
The Court of Appeal held that the defendant had rightly been convicted of going equipped for
theft (contrary to s25 Theft Act 1968) when the evidence showed that he had used Kenyan 5
shilling coins (coins of the same size, shape and weight as 50p coins but of about half the
value) to play gaming machines in an amusement arcade. The defendant knew full well that
he was trying to obtain the prize coins in a way which he knew would not have the machine
owner's consent.
R v Ghosh [1982] QB 1053
The defendant was a consultant at a hospital. He falsely claimed fees in respect of an
operation that he had not carried out. He claimed that he thought he was not dishonest by his
standards because the same amount of money was legitimately payable to him for
consultation fees. The defendant's conviction under s15 was affirmed by the Court of Appeal.
(See Handout on Theft.) On the basis of the court's decision, the jury, applying their own
standards, must judge the defendant's actions and beliefs and decide whether he was honest or
dishonest. If the jury find that according to their standards he was dishonest, they must then
establish whether the defendant knew that ordinary people would regard such conduct as
dishonest.
OBTAINING A PECUNIARY ADVANTAGE BY DECEPTION
R v Clarke [1996] Crim LR 824
The defendant, a private investigator, allegedly told V (a group of people who had been
defrauded) that he was a former fraud squad officer and a court bailiff. In consequence, he
was engaged to trace funds belonging to them. Initially, D maintained not only that he did not
make the representations but also that he was not dishonest since he believed he could do the
work, intended to do so, and eventually did so. He changed his plea to guilty after the judge
indicated that he considered the offence committed if D made the representations, they were
false and that V engaged him as a result of those representations.
The Court of Appeal allowed the appeal and quashed the conviction. The judge's indication
inevitable implied that it was necessarily dishonest to tell lies to obtain employment, no
matter what D's explanation for the lies or more general explanation for his conduct. This was
unduly restrictive and the jury should have been given the opportunity to consider the issues.
CASES ON INSANITY
1. DISEASE OF THE MIND
R v Kemp [1957] 1 QB 399.
The defendant during a blackout, attacked his wife with a hammer causing her grievous
bodily harm. The medical evidence showed that he suffered from arterial-sclerosis, a
condition which restricted the flow of blood to the brain. This caused a temporary lapse of
consciousness. Devlin J ruled that for the purposes of the defence of insanity, no distinction
was to be drawn between diseases of the mind, and diseases of the body affecting the
operation of the mind. Also, it was irrelevant whether the condition of mind was curable or
incurable, transitory or permanent. The jury returned a verdict of guilty but insane. Devlin J
said:
'The law is not concerned with the brain but with the mind, in the sense that "mind" is
ordinarily used, the mental faculties of reason, memory and understanding.'
Bratty v A-G for N. Ireland [1963] AC 386.
The defendant killed a girl during a mental blackout said to be due to psychomotor epilepsy,
a disease of the nervous system, which might have prevented him from knowing the nature
and quality of his act. The trial judge directed the jury on the defence of insanity ruling that
the defence of automatism was not available to the defendant. The jury rejected the defence
of insanity and the defendant was convicted. This was held not to be a misdirection. Lord
Denning stated obiter:
"The major mental diseases, which doctors call psychosis, such as schizophrenia, are clearly
diseases of the mind... It seems to me that any mental disorder which has manifested itself in
violence and is prone to recur is a disease of the mind. At any rate it is the sort of disease for
which a person should be detained in hospital rather than be given an unqualified acquittal."
R v Sullivan [1984] AC 156.
The defendant kicked and injured a man during a minor epileptic fit. The trial judge ruled that
he was prepared to direct the jury on the defence of insanity, but not that of automatism. The
House of Lords held that epilepsy was a disease of the mind because the defendant's mental
faculties were impaired to the extent of causing a defect of reason. It was irrelevant that this
was an organic disease which was only intermittent. It would also be irrelevant if it were only
temporary. Lord Diplock stated:
'The purpose of the legislation relating to the defence of insanity, ever since its origin in
1800, has been to protect society against the recurrence of the dangerous conduct. The
duration of a temporary suspension of the mental faculties of reason, memory and
understanding, particularly if, as in the appellant's case, it is recurrent, cannot on any rational
ground be relevant to the application by the Courts of the McNaghten Rules, though it may
be relevant to the course adopted by the Secretary of State, to whom the responsibility for
how the defendant is to be dealt with passes after the return of the special verdict of "not
guilty by reason of insanity".'
R v Hennessy [1989] 1 WLR 287.
The defendant was charged with taking a motor car without authority and driving while
disqualified. He claimed that he was suffering from hyper-glycaemia (high blood sugar level
caused by diabetes) at the time because he had not taken any insulin to stabilise his
metabolism, nor eaten properly for days, and as a result was acting unconsciously. He
pleaded automatism but the trial judge indicated that he would only be prepared to direct the
jury on the defence of insanity.
The Court of Appeal, in confirming the correctness of the trial judge's ruling, held that the
defendant's loss of awareness had not resulted from the operation of external factors upon his
body, such as the injection of insulin (as in R v Quick [1973]), but instead had resulted from
an inherent physical defect, ie diabetes. The hyper-glycaemia suffered by diabetics, which
was not corrected by insulin, was to be regarded as a disease of the body which affected the
mind for the purposes of the M'Naghten Rules.
R v Burgess [1991] 2 WLR 1206.
The defendant visited a woman to watch a video in her flat. During the course of the evening
she fell asleep on the sofa. She was awoken by the defendant smashing a bottle over her head.
Before she could stop him he had picked up the video recorder and brought it down on her
head causing cuts and bruises. At his trial the defendant adduced expert medical evidence to
the effect that he had been sleep-walking at the time of the attack and that the defence of
automatism should be put before the jury. The trial judge ruled that the only defence the
evidence revealed was that of insanity, and the jury in due course found him not guilty by
reason of insanity.
The Court of Appeal dismissed the defendant's appeal. Lord Lane CJ considered this 'disease
of the mind' to be due to an "internal" cause. The ordinary stresses and disappointments of
life which are the common lot of mankind do not constitute an external cause constituting an
explanation for a malfunctioning of the mind. He then went on to say:
"We accept that sleep is a normal condition, but the evidence in the instant case indicates that
sleepwalking, and particularly violence in sleep, is not normal."
Consequently, on the evidence the judge was right to conclude that this was an abnormality
or disorder, albeit transitory, due to an internal factor, which had manifested itself in violence
and which might recur.
R v Bingham [1991] Crim LR 43.
The defendant was a diabetic who was charged with theft, and claimed that he was hypoglycaemic at the time of the offences. His conviction was quashed by the Court of Appeal
because the trial judge did not correctly distinguish between hypo- and hyper-glycaemia.
Note: Hypo-glycaemia = Low blood sugar level due to an excess of insulin (an external
factor). Hyper-glycaemia = High blood sugar level caused by the diabetes (an internal
disorder).
2. DEFECT OF REASON
R v Clarke [1972] 1 All ER 219.
The defendant, a diabetic, was charged with theft of items in a supermarket. Her defence was
that she had no intent to steal. There was evidence that she had behaved absent-mindedly in
the home. She said that she must have put the items in her bag in a moment of absentmindedness. Her doctor and a consultant psychiatrist testified that she was suffering from
depression, which the consultant accepted to be a minor mental illness which could produce
absent-mindedness.
The trial judge was convinced that the defence was in truth a defence of insanity. However,
the Court of Appeal held that the M'Naghten Rules do not apply to those who retain the
power of reasoning but who in moments of confusion or absent-mindedness fail to use their
powers to the full.
R v Windle [1952] 2 QB 826.
The defendant had killed his wife by administering an overdose of aspirins to her. Medical
evidence showed that although he was suffering from a mental illness he knew that he was
committing a crime; hence his remark to the police, at the time of arrest, "I suppose they will
hang me for this". The trial judge refused to allow the defence of insanity to go to the jury on
the ground that he had known his actions were unlawful. This decision was upheld on appeal.
3. INSANE DELUSIONS
R v Bell [1984] Crim LR 685.
The defendant had been charged with reckless driving, having used a van to smash through
the entrance gates of a Butlins' holiday camp. When interviewed he told the police: "It was
like a secret society in there, I wanted to do my bit against it". The defendant contended that
he had not driven recklessly because, although he knew there was a risk of his causing
criminal damage, he felt that he was able to cope with it because he was being instructed to
act by God. Following the rejection of his submission of "no case" on this basis, he changed
his plea to one of guilty.
The Court of Appeal held, dismissing the appeal that as the defendant had been aware of his
actions he could not have been in a state of automatism, and the fact that he believed himself
to be driven by God could not provide an excuse, but merely an explanation for what he had
done. In other words he could not rely on the defence of insanity either because the evidence
was that he had known what he was doing, or had known that what he was doing was illegal.
CASES ON INTOXICATION
1. THE SPECIFIC INTENT/BASIC INTENT DICHOTOMY
DPP v Majewski [1977] AC 142.
The defendant had been convicted of various counts alleging actual bodily harm, and assaults
upon police officers. The offences had occurred after the defendant had consumed large
quantities of alcohol and drugs. The trial judge had directed the jury that self-induced
intoxication was not available as a defence to these basic intent crimes. The defendant was
convicted and appealed unsuccessfully to the Court of Appeal and the House of Lords.
Lord Elwyn-Jones LC referred to the case of Beard in which Lord Birkenhead LC concluded
that the cases he had considered establish that drunkenness can be a defence where the
accused was at the time of the offence so drunk as to be incapable of forming the specific
intent necessary for such crimes. Lord Elwyn-Jones LC then said that before and since
Beard's case, judges had taken the view that self-induced intoxication, however gross and
even if it produced a condition akin to automatism, cannot excuse crimes of basic intent.
With crimes of basic intent, as his Lordship explained, the "fault" element is supplied by the
defendant's recklessness in becoming intoxicated, this recklessness being substituted for the
mens rea that the prosecution would otherwise have to prove.
2. INTOXICATION BY DRUGS
R v Lipman [1970] 1 QB 152.
The defendant, having voluntarily consumed LSD, had the illusion of descending to the
centre of the earth and being attacked by snakes. In his attempt to fight off these reptiles he
struck the victim (also a drug addict on an LSD "trip") two blows on the head causing injuries
to her brain and crammed some eight inches of bedsheet into her mouth causing her to die of
asphyxia. He claimed to have had no knowledge of what he was doing and no intention to
harm her. His defence of intoxication was rejected at his trial and he was convicted of
unlawful act manslaughter. His appeal to the Court of Appeal was dismissed. Widgery LJ
said:
"For the purposes of criminal responsibility we see no reason to distinguish between the
effect of drugs voluntarily taken and drunkenness voluntarily induced."
5. SOPORIFIC EFFECT
R v Hardie [1985] 1 WLR 64.
The defendant had voluntarily consumed up to seven old valium tablets (a non-controlled
drug having a sedative effect) for the purpose of calming his nerves. Whilst under the
influence of the drug he had started a fire in the flat in which he had been living, but claimed
to have been unable to remember anything after taking the tablets. The defendant was
convicted of causing criminal damage being reckless as to whether life would be endangered,
following the trial judge's direction to the jury that self-induced intoxication was not available
by way of defence to a basic intent crime. The defendant appealed.
The conviction was quashed on appeal on the grounds that he could not be expected to
anticipate that tranquillisers would have that effect upon him. The Court of Appeal held that
the trial judge should have distinguished valium, a sedative, from other types of drugs, such
as alcohol, which were widely known to have socially unacceptable side effects. Whilst the
voluntary consumption of dangerous drugs might be conclusive proof of recklessness, no
such presumption was justified in the case of non-dangerous drugs. The jury should have
been directed to consider whether the defendant had been reckless in consuming the valium,
in the sense that he had been aware of the risks associated with its consumption, although not
necessarily aware of the risk that he would actually commit aggravated criminal damage.
6. "DUTCH COURAGE" INTOXICATION
A-G for N. Ireland v Gallagher [1963] AC 349.
The defendant decided to kill his wife. He bought a knife and a bottle of whisky which he
drank to give himself "Dutch Courage". Then he killed her with the knife. He subsequently
claimed that he was so drunk that he did not know what he was doing, or possibly even that
the drink had brought on a latent psychopathic state so that he was insane at the time of the
killing. The House of Lords held that intoxication could not be a defence in either case as the
intent had been clearly formed, albeit before the killing took place. Lord Denning stated:
"If a man, whilst sane and sober, forms an intention to kill and makes preparation for it,
knowing it is a wrong thing to do, and then gets himself drunk so as to give himself Dutch
courage to do the killing, and whilst drunk carries out his intention, he cannot rely on his selfinduced drunkenness as a defence to a charge of murder, not even as reducing it to
manslaughter. He cannot say that he got himself into such a stupid state that he was incapable
of an intent to kill. So also when he is a psychopath, he cannot by drinking rely on his selfinduced defect of reason as a defence of insanity. The wickedness of his mind before he got
drunk is enough to condemn him, coupled with the act which he intended to do and did do."
7. INVOLUNTARY INTOXICATION
R v Allen [1988] Crim LR 698.
The defendant had drunk wine not knowing that it was extremely strong home-made wine.
He then committed sexual offences, but claimed that he was so drunk that he did not know
what he was doing. The Court of Appeal held that this did not amount to involuntary
intoxication. He was thus treated as if he were voluntarily intoxicated.
CASES ON INVOLUNTARY
MANSLAUGHTER
1. AN UNLAWFUL ACT
R v Franklin (1883) 15 Cox CC 163
The defendant while walking along a pier, took up a "good sized box" from a stall and threw
it into the sea where it struck a swimmer and killed him. The defendant was guilty of
manslaughter as death arose from an unlawful act, ie taking another's property and throwing
it into the sea.
R v Lamb [1967] 2 QB 981
The defendant pointed a loaded gun at his friend in jest. He did not intend to injure or alarm
the victim and the victim was not alarmed. There were two bullets in the chambers but
neither was in the chamber opposite the barrel. Because they did not understand how a
revolver works, both thought there was no danger in pulling the trigger. But when the
defendant did so, the barrel rotated placing a bullet opposite the firing pin and the victim was
killed. The defendant was not guilty of a criminal assault or battery because he did not
foresee that his victim would be alarmed or injured.
R v Arobieke [1988] Crim LR 314
The defendant had been convicted of manslaughter on the basis that his presence at a railway
station had caused the victim, whom he knew to be terrified of him, to attempt an escape by
crossing the railway tracks, with the result that he was electrocuted. The Court of Appeal
quashed the conviction on the ground that there had been no criminal act by the defendant, as
the evidence did not show that the defendant had physically threatened or chased the
deceased.
R v Cato [1976] 1 WLR 110
The defendant and the victim agreed to inject each other with heroin. The victim had
consented to a number of such injections during the course of an evening. The following
morning he was found to have died from the effects of the drug-taking. The defendant was
convicted of maliciously administering a noxious substance contrary to s23 of the Offences
Against the Person Act 1861, and of manslaughter, either on the basis that his unlawful act
had caused death, or on the basis that he had recklessly caused the victim's death.
The Court of Appeal held that the defendant had been properly convicted. Lord Widgery CJ
stated that heroin was a noxious substance on the basis that it was likely to injure in common
use, and that the defendant had administered it knowing of its noxious qualities. The victim's
consent to suffer harm of this nature could never relieve the defendant of his liability, or
destroy the unlawfulness of the defendant's act.
2. THE ACT MUST BE DANGEROUS
R v Church [1966] 1 QB 59
The defendant had gone to his van with a woman for sexual purposes. She mocked his
impotence and he had attacked her, knocking her out. The defendant panicked, and
wrongfully thinking he had killed her, threw her unconscious body into a river, where she
drowned. The defendant was convicted of manslaughter. He had acted unlawfully towards the
victim in a way that sober and reasonable people would appreciate involved risk of injury to
the victim.
Edmund-Davies J provided a definition of dangerousness when he stated: "... 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 harm resulting therefrom, albeit not serious harm..."
R v Dawson (1985) 81 Cr App R 150
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.
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."
Thus, the reasonable man must be taken to know only the facts and circumstances which the
defendant knew. It was never suggested that any of the defendants knew that their victim had
a bad heart; therefore the reasonable man would not know this.
R v Watson [1989] 1 WLR 684
The defendant had burgled a house occupied by an 87 year old 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 successfully on the issue of causation (as to which
see below).
As to the nature of the unlawful act however, the Court of Appeal recognised that, following
Dawson and applying the test established by Watkins LJ, the unlawful act had to be
dangerous in the sense that all sober and reasonable persons would foresee that it created a
risk of some physical harm occurring to the victim, but added that in applying this test, the
reasonable person was to be imbued with all the knowledge that the defendant had gained
throughout his burglarious trespass (ie his realisation of the victim's frailty) and not just the
defendant's limited or non-existent knowledge at the moment he first entered the property.
Note: On this basis therefore, the burglary did constitute a dangerous unlawful act, but only
because the court assumed that the defendant, during the course of the unlawful act, must
have become aware of the frailty of the victim.
R v Ball [1989] Crim LR 730
The defendant had been involved in a dispute with his neighbour, the victim, over her parking
her vehicle on his land. The victim, accompanied by two men, called on the defendant to
investigate the disappearance of her vehicle. An argument developed which culminated in the
defendant grabbing a handful of cartridges, loading his shotgun, and firing at the victim. The
victim was killed in the attack. The defendant was acquitted of murder, on the basis that he
had honestly believed that he had loaded the gun with blank cartridges and had only intended
to frighten the victim, but was convicted of manslaughter.
The defendant appealed on the basis that the trial judge had erred in directing the jury as to
how they should have assessed the 'dangerousness' of his unlawful act, in that they had not
been told to bear in mind the defendant's mistaken belief, that he was firing blanks, when
applying the Dawson test. In dismissing the appeal, the Court of Appeal held that once it was
established that the defendant had intentionally committed an unlawful act, the question of its
dangerousness was to be decided by applying the objective test (as in Dawson). The court
refused to impute to the reasonable man the defendant's mistake of fact, ie believing the live
cartridges to be blanks.
3. SUBSTANTIAL CAUSE OF DEATH
R v Dalby [1982] 1 WLR 425
The defendant was a drug addict who lawfully obtained drugs on prescription. He gave some
of the tablets to the victim, also known to be a drug addict. The victim had consumed a large
quantity of the drug in one session, and subsequently injected himself with other substances.
The following morning he was found to have died of a drug overdose.
The defendant was convicted of unlawful act manslaughter, based on his unlawful supply of
the controlled drug, and he appealed on the basis that his supply of the drug was not a
dangerous act which had operated as the direct cause of death. He contended that the death
was due to the victim's act in consuming such a large dose of the drug in such a short space of
time. The Court of Appeal allowed the appeal, Waller LJ holding that the defendant's act had
not in any event been the direct cause of death, but had merely made it possible for the victim
to kill himself. His Lordship stated that where manslaughter was based on an unlawful and
dangerous act, it had to be an act directed at the victim which was likely to cause immediate
injury, albeit slight.
R v Mitchell [1983] 2 WLR 938
The defendant, having become involved in an argument whilst queuing in a post office,
pushed an elderly man, causing him to fall accidentally on the deceased, an elderly woman,
who subsequently died in hospital from her injuries. The defendant was convicted of
unlawful act manslaughter. He unsuccessfully appealed on the ground that his unlawful act
had not been directed at the victim.
Staughton J held that although there was no direct contact between the defendant and the
victim, she was injured as a direct and immediate result of his act. Thereafter her death
occurred. The only question was one of causation and the jury had concluded that the victim's
death was caused by the defendant's act. The actions of the elderly man in falling on the
victim were entirely foreseeable and did not break the chain of causation between the
defendant's assault and the victim's death. Dalby was distinguishable on its facts as a case
where the victim was not injured as a direct and immediate result of the defendant's act. In
addition, the court saw no reason of policy for holding that an act calculated to harm A
cannot be manslaughter if it in fact kills B: see Latimer (1886).
R v Goodfellow (1986) 83 Cr App R 23
The defendant had deliberately fire bombed his own council house in the hope that he would
be rehoused by the council. His wife and children, who had been in the house, were killed in
the ensuing blaze. He appealed against his conviction for manslaughter on the ground that his
unlawful act (criminal damage) had not been directed at the victims as required by Dalby.
The Court of Appeal held that Dalby should not be construed as requiring proof of an
intention on the part of the defendant to harm the victims. It was to be viewed as an authority
on causation, in that the prosecution had to establish that there had been no fresh intervening
cause between the defendant's act and the death.
R v Watson [1989] 1 WLR 684
(For facts see above.) The defendant appealed successfully on the ground that his counsel had
been denied a sufficient opportunity to address the jury on the issue of whether the
excitement caused by the arrival of the police and the council workman could have taken
over as the operating and substantial cause of death. (Note: But did this predictable event
break the chain of causation?)
4. MENS REA
DPP v Newbury and Jones [1976] AC 500
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. Lord Salmon explained that a defendant was guilty of
manslaughter if it was proved that he intentionally did an act which was unlawful and
dangerous and that act caused death, and that it was unnecessary that the defendant had
known that the act in question was unlawful or dangerous.
CASES ON MENS REA
INTENTION
Hyam v DPP [1975] AC 55
The defendant, in order to frighten Mrs Booth, her rival for the affections of Mr X, put
burning newspaper through the letterbox of Booth's house and caused the death of two of her
children. She claimed that she had not meant to kill but had foreseen death or grievous bodily
harm as a highly probable result of her actions. Ackner J directed the jury that the defendant
was guilty if she knew that it was highly probable that her act would cause at least serious
bodily harm.
Although Lord Hailsham LC stated that he did not think that foresight of a high degree of
probability is at all the same thing as intention, and it is not foresight but intention which
constitiutes the mental element in murder, the House of Lords (by a 3-2 majority), held that
foresight on the part of the defendant that his actions were likely, or highly likely, to cause
death or grievous bodily harm was sufficient mens rea for murder.
R v Hancock and Shankland [1986] 2 WLR 257.
The defendants were striking miners who threw a concrete block from a bridge onto the
motorway below. It struck a taxi that was carrying a working miner and killed the driver. The
defendants argued that they only intended to block the road but not to kill or cause grievous
bodily harm. The trial judge directed the jury on the basis of Lord Bridge's statements in
Moloney (ie, was death or grievous bodily harm a natural consequence of what was done, and
did the defendants foresee that consequence as a natural consequence?) and the defendants
were convicted of murder.
On appeal a verdict of manslaughter was substituted by the House of Lords who reaffirmed
that the prosecution has to establish an intention to kill or do grievous bodily harm on the part
of the defendant. Lord Scarman felt that the Moloney guidelines on the relationship between
foresight and intention were unsatisfactory as they were likely to mislead a jury. Lord
Scarman expressed the view that intention was not to be equated with foresight of
consequences, but that intention could be established if there was evidence of foresight. The
jury should therefore consider whether the defendant foresaw a consequence. It should be
explained to the jury that the greater the probability of a consequence occurring, the more
likely that it was foreseen, and the more likely that it was foreseen, the more likely it is that it
was intended. In short, foresight was to be regarded as evidence of intention, not as an
alternative form of it.
R v Nedrick (1986) 83 Cr App 267.
A child had burned to death in a house where the defendant had, without warning, put a
petrol bomb through the letter box. He admitted to starting the fire but stated that he only
wanted to frighten the owner of the house. The Court of Appeal overturned the murder
conviction and substituted a verdict of manslaughter as the judge had misdirected the jury.
Lord Lane CJ provided a model direction for a jury about intent in a murder case where the
defendant did a manifestly dangerous act and someone died as a result. Lord Lane CJ
suggested that when determining whether the defendant had the necessary intent, it might 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 bodily 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 might be easy for the jury to conclude that he did not intend to bring about the
result.
* On the other hand, if the jury were satisfied that at the material time the defendant
recognised that death or serious bodily 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.
R v Walker and Hayles (1990) 90 Cr App R 226.
The defendants threw their victim from a third floor balcony. At their trial for attempted
murder the trial judge directed the jury that they could infer intention if there was a high
degree of probability that the victim would be killed and if the defendants knew "quite well
that in doing that there was a high degree of probability" that the victim would be killed. The
defendants appealed on the ground that the trial judge was confusing foresight of death with
an intention to kill and should have directed the jury in the Nedrick terms of "virtual
certainty".
The Court of Appeal did not accept that the reference to "very high degree of probability"
was a misdirection. However, Lloyd LJ stated that in the rare cases where an expanded
direction is required in terms of foresight, courts should continue to use virtual certainty as
the test, rather than high probability.
R v Scalley [1995] Crim LR 504.
The defendant was alleged to have murdered a 5 year old boy by setting fire to a house in
which the defendant had once lived. The defendant was convicted of murder following the
trial judge's direction to the jury to the effect thy could convict if they were sure that the
defendant intended death or grievous bodily harm in the sense that he foresaw either
consequence as virtually certain to result from his actions.
The Court of Appeal quashed the conviction and substituted a conviction for manslaughter.
The direction did not make it clear that foresight of the virtual certainty of death or serious
injury is not intention but merely evidence from which the jury are entitled to infer intention.
The jury should have been told that if they were satisfied that the defendant did see either
death or serious injury as virtually certain, then they could go on to infer intention but were
not obliged to do so.
RECKLESSNESS
R v Cunningham [1957] 2 QB 396.
The defendant had broken a gas meter to steal the money in it with the result that gas escaped
into the next-door house. The victim became ill and her life was endangered. The defendant
was charged under s23 of the Offences Against the Person Act 1861 with "maliciously
administering a noxious thing so as to endanger life". The Court of Appeal, allowing the
defendant's appeal held that for a defendant to have acted "maliciously" there had to be proof
that he intended to cause the harm in question, or had been reckless as to whether such harm
would be caused. In this context recklessness involved the defendant in being aware of the
risk that his actions might cause the prohibited consequence.
MPC v Caldwell [1982] AC 341.
The defendant, who had been sacked from his employment at an hotel, became drunk and
returned at night to the hotel, setting it on fire. There were ten people resident in the hotel at
the time, but the fire was discovered and extinguished before any serious harm could be
caused. The defendant pleaded guilty to criminal damage but pleaded not guilty to the more
serious charge of criminal damage with intent to endanger life or recklessness as to whether
life would be endangered. he argued that due to his drunken state it had never crossed his
mind that lives might be endangered by his actions, he had simply set fire to the hotel because
of his grudge against his former employer.
The House of Lords re-affirmed Cunningham as a form of recklessness in criminal law, but
introduced an alternative form of recklessness based upon the defendant's failure to advert to
a risk which would have been obvious to the reasonable person. Lord Diplock held that a
defendant was reckless as to whether he damaged property if he created a risk of damage
which would have been obvious to the reasonable man and either * had not given any thought to the possibility of such a risk when he carried out the act in
question, or
* had recognised that there was some risk involved and nonetheless went on to carry it out.
Elliot v C [1983] 1 WLR 939.
The defendant, an educationally subnormal 14-year-old schoolgirl, had entered a neighbour's
garden shed, poured white spirit on the floor and ignited it. The defendant then fled as the
shed burst into flames. The magistrates dismissed the charge of criminal damage on the basis
that she gave no thought to the risk of damage, and that even if she had, she would not have
been capable of appreciating it. The prosecution appealed and the Divisional Court, allowing
the appeal, held that this was irrelevant to the issue of recklessness. When the court in
Caldwell had talked about an "obvious" risk, they had meant obvious to the reasonable man if
he had thought about it, and not obvious to the defendant if he had thought about it.
R v Coles [1994] Crim LR 820.
The defendant, aged 15 at the time of the offence and of lower than average mental capacity,
had been playing in a hay barn with other children. The evidence was that he had tried to set
fire to the hay whilst other children were in the barn. The children escaped unhurt. The
defendant was charged with arson, being reckless as to whether the lives of others would be
endangered. During the trial it was submitted that the Caldwell direction should be amended
so that the assessment of whether or not the appellant had, by his actions, created an obvious
risk of harm, should be made more subjective. The trial judge rejected this submission stating
that the test was whether or not the risk would have been obvious to the reasonable prudent
adult person.
The Court of Appeal dismissed the defendant's appeal. It was held that the first limb of the
Caldwell direction was objective and the state of mind of the accused was irrelevant to the
question of whether or not he had, by his act or omission, created an obvious risk of harm to
persons or property. On appeal, the argument put forward on behalf of the appellant had been
broadened to encompass the proposition that the second limb of the Caldwell test should have
some regard to the defendant's capacity to foresee risk. The appeal court took the view that
such an argument had failed in Elliot v C [1983] 1 WLR 939 and that that decision had been
confirmed by the Court of Appeal in R v R (Stephen Malcolm) (1984) 79 Cr App R 334. It
was not predisposed to depart from its own previous decision.
Chief Constable of Avon and Somerset v Shimmen (1987) 84 Cr App R 7.
The defendant was a martial arts expert who was demonstrating his skill to friends by
performing a move which he anticipated would bring his foot within inches of a shop
window. He had miscalculated the risk, and he broke the window. The argument that he was
not reckless because he had given thought to the risk but mistakenly believed that he had
minimised it, was rejected by the Divisional Court because he knew there was some risk. The
defendant was found guilty of causing criminal damage.
R v Merrick [1996] 1 Cr App R 130.
The defendant visited householders and offered to remove certain old cable TV cabling if
they were not being paid wayleave payments by the owner of the cables with whom he had
fallen out. When the defendant removed the cable he inevitably damaged it. He also
inevitably left a live cable exposed for a short time until he could make it safe (about six
minutes). He was charged with intentionally damaging property being reckless as to whether
life was endangered thereby. At his trial, he argued that he knew that it would have been
dangerous to leave the cable exposed, that he had come with materials to make it safe and
that he did not believe that there was any risk of endangering life whilst he was doing so. The
judge ruled that precautions to eliminate the risk of endangering life must be taken before the
damage was caused.
On appeal the defendant argued that he was not reckless since he fell within the lacuna as
having thought about it and decided that there was no risk. The Court of Appeal dismissed
the appeal and held that there is a difference between (a) avoiding a risk and (b) taking steps
to remedy one which has already been created. The defendant could only have succeeded if
he had done or believed he had done the former rather than the latter.
R v Lawrence [1981] AC 510.
The defendant motor cyclist, who had collided with and killed a pedestrian, was charged with
causing death by reckless driving. The House of Lords held that the test of recklessness was
the same for reckless driving as for criminal damage, but used the words, based on an
"obvious and serious risk" (as opposed to an "obvious risk" in Caldwell).
R v Seymour [1983] 2 AC 493.
The defendant had an argument with his common law wife. In an effort to move her car out
of his way by pushing it with his truck, he had jammed her body between his truck and her
car, as a result of which she sustained severe injuries from which she later died. The
prosecution brought a charge of common law manslaughter and the defendant was convicted.
The trial judge had directed the jury that they should convict if they were satisfied that the
defendant had caused the death, and had been reckless in so doing, recklessness here having
the meaning attributed to it by the House of Lords in Lawrence. The House of Lords held that
the conviction should stand. Thus Caldwell recklessness applied to manslaughter.
TRANSFERRED MALICE
R v Latimer (1886) 17 QBD 359.
The defendant struck a blow with his belt at Horace Chapple which recoiled off him, severely
injuring an innocent bystander. The defendant was convicted of maliciously wounding the
victim, and appealed on the ground that it had never been his intention to hurt her. The court
held that the conviction would be affirmed. The defendant had committed the actus reus of
the offence with the necessary mens rea, ie he had acted maliciously. There was no
requirement in the relevant act that his mens rea should relate to a named victim. Thus,
Latimer's malice was transferred from his intended to his unintended victim.
R v Pembliton (1874) LR 2 CCR 119.
The defendant threw a stone at another person during an argument. The stone missed the
intended victim, but instead broke a nearby window. He was charged with malicious damage
to property and was convicted. The court, in quashing the conviction held, that the doctrine of
transferred malice was inapplicable where the defendant's intention had not been to cause the
type of harm that actually occurred. His intention to assault another person could not be used
as the mens rea for the damage that he had caused to the window.
COINCIDENCE OF ACTUS REUS AND MENS REA
Fagan v MPC [1969] 1 QB 439.
The defendant accidentally drove his car on to a policeman's foot and when he realised, he
refused to remove it immediately. It was held that the actus reus of the assault was a
continuing act which, while started without mens rea, was still in progress at the time the
mens rea was formed and so there was a coincidence of actus reus and mens rea sufficient to
found criminal liability.
Kaitamaki v R [1985] AC 147.
The defendant was charged with rape. His defence was that when he penetrated the woman
he thought she was consenting. When he realised that she objected he did not withdraw. The
Privy Council held that the actus reus of rape was a continuing act, and when he realised that
she did not consent (and he therefore formed the mens rea) the actus reus was still in progress
and there could therefore be coincidence.
Thabo Meli v R [1954] 1 WLR 228.
The defendants had taken their intended victim to a hut and plied him with drink so that he
became intoxicated. They then hit the victim around the head, intending to kill him. In fact
the defendants only succeeded in knocking him unconscious, but believing the victim to be
dead, they threw his body over a cliff. The victim survived but died of exposure some time
later. The defendants were convicted of murder, and appealed to the Privy Council on the
ground that there had been no coincidence of the mens rea and actus reus of murder.
The Privy Council held that the correct view of what the defendants had done was to treat the
chain of events as a continuing actus reus. The actus reus of causing death started with the
victim being struck on the head and continued until 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.
R v Church [1966] 1 QB 59.
The same reasoning was applied in this case even though there was no pre-conceived plan.
The defendant had gone to his van with a woman for sexual purposes. She had mocked his
impotence and he had attacked her, knocking her out. The defendant panicked, and wrongly
thinking he had killed her, threw her unconscious body into a river, where she drowned. The
defendant's appeal against his conviction for manslaughter was dismissed by the Court of
Appeal.
R v Le Brun [1991] 3 WLR 653.
The defendant punched his wife on the chin knocking her unconscious. He did not intend to
cause her serious harm. The defendant attempted to move her body, and in the course of so
doing dropped her, causing her head to strike the pavement. His wife sustained fractures to
the skull that proved fatal. The defendant's appeal against his conviction for manslaughter
was dismissed by the Court of Appeal. Lord Lane CJ said:
"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."
Cases on Preliminary Crimes
Race Relations Board v Applin [1973]
The defendant members of the 'National Front' had conducted a campaign against a Mr and
Mrs W (a white couple) fostering black children. They had written threatening letters,
distributed circulars and held public meetings in an attempt to persuade the married couple to
stop fostering black children. The RRB sought a declaration that the defendants' acts were
unlawful under s12 of the Race Relations Act 1968, which makes it unlawful to discriminate
in the public provision of services, and an injunction restraining them from inciting a person
to do an act which was unlawful under the 1968 Act.
It was held, by the Court of Appeal (Civil Division) that the defendants had 'incited' Mr and
Mrs W, within s12 of the 1968 Act, to discriminate unlawfully. The word 'incite' in s12 was
not limited to advice, encouragement or persuasion of another to do an act but included
threatening or bringing pressure to bear on a person. Accordingly the defendants, bringing
pressure to bear on Mr and Mrs W to take white children only, had 'incited' them to do so. It
followed that, since it would have been unlawful discrimination under the Act for Mr and
Mrs W to take white children only, it was, by virtue of s12, unlawful for the defendants to
incite them to do so.
Invicta Plastics Ltd v Clare [1976]
The defendant had advertised a device with a photograph showing a view of a speed
restriction sign, implying that it could be used to detect police radar traps. It was not an
offence to own one of these devices, but it was an offence to operate one without a licence. In
confirming the company's conviction for inciting readers of the adverts to commit breaches of
the Wireless Telegraphy Act 1949, the Divisional Court held that the mens rea involved not
only an intention to incite, but also an intention that the incitee should act upon the
incitement.
R v Curr [1968] 2 QB 944
The defendant ran a loan business whereby he would lend money to women with children in
return for their handing over their signed family allowance books. He would then use other
women to cash the family allowance vouchers. He was convicted of inciting the commission
of offences under s9(b) of the Family Allowance Act 1945, which made it an offence for any
person to receive any sum by way of family allowance knowing it was not properly payable.
He appealed successfully to the Court of Appeal, where it was held that the trial judge had
erred in not directing the jury to consider whether these women, who were being incited to
use the signed allowance books to collect money on behalf of the defendant, had actually
known that what they were being asked to do was unlawful. It would have been more
appropriate to have charged the defendant as the principal offender relying on the doctrine of
innocent agency.
R v Fitzmaurice [1983]
The defendant's father had asked the defendant to recruit people to rob a woman on her way
to the bank by snatching wages from her. The defendant approached B and encouraged him
to take part in the proposed robbery. Unknown to the defendant, no crime was to be
committed at all; it was a plan of his father's to enable him to collect reward money from the
police for providing false information about a false robbery. The defendant was convicted of
inciting B to commit robbery by robbing a woman near the bank. He appealed against
conviction on the ground that what he had incited had in fact been impossible to carry out.
The Court of Appeal dismissed the appeal. It was held that (1) At common law incitement to
commit an offence could not be committed where it was impossible to commit the offence
alleged to have been incited. Accordingly, it was necessary to analyse the evidence to decide
the precise offence which the defendant was alleged to have incited and whether it was
possible to commit that offence. (2) Since at the time the defendant encouraged B to carry out
the proposed robbery the defendant believed that there was to be a wages snatch from a
woman on her way to the bank, and since it would have been possible for B to carry out such
a robbery, the defendant had incited B to carry out an offence which it would have been
possible rather than impossible for B to commit. It followed that the defendant had been
rightly convicted.
CONSPIRACY
R v Chrastny [1991]
The defendant had been convicted of conspiracy to supply a Class A drug, and sought to
challenge her conviction on the ground that the trial judge had erred in law in directing the
jury that, although the defendant had only agreed with her husband that the offence should be
committed, s2(2)(a) of the Criminal Law Act 1977 provided no protection where she had
nevertheless known of the existence of the other conspirators. In dismissing the appeal,
Glidewell LJ pointed out that the provision does not enable a wife to escape liability simply
by taking care only to agree with her spouse, even though she knows of the existence of other
parties to the conspiracy. Only where she remained genuinely ignorant of other parties to
such a conspiracy would s2(2)(a) protect her.
R v Anderson [1986]
The defendant agreed for a fee to supply diamond wire to cut through prison bars in order to
enable another to escape from prison. He claimed that he only intended to supply the wire
and then go abroad. He believed the plan could never succeed. He appealed against his
conviction for conspiring with others to effect the release of one of them from prison,
claiming that as he did not intend or expect the plan to be carried out, he lacked the necessary
mens rea for the offence of conspiracy.
The House of Lords dismissed the appeal. Lord Bridge stated that beyond the mere fact of
agreement, the necessary mens rea of the crime is established 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. On the facts of the case, the defendant clearly intended, by providing
diamond wire to be smuggled into the prison, to play a part in the agreed course of conduct in
furtherance of the criminal objective.
Yip Chiu-Cheung v R [1994]
The defendant had entered into an agreement with an undercover police officer, whereby the
officer would fly from Australia to Hong Kong, collect a consignment of heroin from the
defendant, and return with it to Australia. In due course, however, the defendant was charged
with, and convicted of, conspiring to traffic in dangerous drugs. He appealed on the ground
that there could be no conspiracy as his co-conspirator had been acting to promote law
enforcement, and that the officer's purpose had been to expose drug-trafficking.
The appeal was dismissed by the Privy Council. Even though the officer would have been
acting courageously and from the best of motives, it had nevertheless been his intention, at
the time the agreement was made, to take prohibited drugs from Hong Kong to Australia. If
the agreement had been executed he would have committed a serious criminal offence. It
followed that there had been a conspiracy and the defendant had been properly convicted.
Scott v MPC [1975]
The defendant agreed with the employees of cinema owners that, in return for payment, they
would remove films without the consent of their employers or of the owners of the copyright,
in order that the defendant could make copies infringing the copyright, and distribute them
for profit. The defendant argued that the conspiracy charged did not involve any deceit of the
companies and persons who owned the copyright. The House of Lords held that the
defendant was guilty of a conspiracy to defraud and that it did not necessarily involve deceit.
Wai Yu-Tsang v R [1992]
The defendant was convicted of conspiring to defraud a bank, of which he was the chief
accountant. He had agreed with others not to enter certain dishonoured cheques on the
records of the bank in order to save the bank's reputation. The trial judge's direction to the
jury, with which the Privy Council agreed, was to the effect that for conspiracy to defraud, no
desire to cause loss on the part of the defendant need be shown, it being sufficient that he had
imperiled the economic or proprietary interests of another party.
Shaw v DPP [1962]
The defendant published a "Ladies Directory" which advertised the names and addresses of
prostitutes with, in some cases, photos and in others, details of sexual perversions which they
were willing to practise. The House of Lords held that an offence of conspiracy to corrupt
public morals existed at common law. The conspiracy to corrupt public morals consisted of
an agreement to corrupt public morals by means of the magazine; and the defendants had
been rightly convicted.
Knuller v DPP [1973]
The defendant and others had published adverts in a contact magazine aimed at homosexuals,
encouraging them to have sexual relations with each other. The House of Lords held that an
agreement to publish adverts to facilitate the commission of homosexual acts between adult
males in private was a conspiracy to corrupt public morals, although such conduct is no
longer a crime. Lord Reid believed that no licence was given to others to encourage the
practice.
A majority of the House held that there is also a common law offence of outraging public
decency. Lord Simon said: "...'outrage', like 'corrupt' is a very strong word. 'Outraging public
decency' goes considerably beyond offending the susceptibilities of, or even shocking,
reasonable people."
R v Gibson and another [1991]
The defendants exhibited at an exhibition in a commercial art gallery, a model's head to
which were attached earrings made out of freeze-dried human foetuses. The exhibit was
entitled 'Human Earrings'. The gallery was open to, and was visited by, members of the
public. The defendants were charged with, and convicted of, outraging public decency
contrary to common law.
ATTEMPTS
R v Gullefer (1990)
The defendant, seeing that the dog he had backed in a greyhound race was losing, jumped
onto the track and attempted to distract the dogs by waving his arms. He hoped that the
stewards would declare "no race" whereupon punters would be entitled to have their money
back and he would recover his £18 stake. He was convicted of attempted theft and appealed
on the ground that his acts were not sufficiently proximate to the completed offence of theft
to be capable of comprising an attempt to commit theft.
His conviction was quashed. Lord Lane CJ questioned, Might it properly be said that when he
jumped on to the track he was trying to steal £18 from the bookmaker? He had not gone
beyond mere preparation. It remained for him to go to the bookmaker and demand his money.
R v Jones (1990)
The defendant had bought some guns, shortened the barrel of one of them, put on a disguise
and had gone to the place where his intended victim, F, dropped his daughter off for school.
As the girl left the car, the defendant jumped into the rear seat and asked F to drive on. They
drove to a certain point where the defendant took a loaded sawn-off shotgun from a bag and
pointed it at F and said: "You are not going to like this." F grabbed the gun and managed to
throw it out of the window and escaped. The defendant was convicted of attempted murder
and appealed.
In dismissing his appeal Taylor LJ felt that there was evidence from which a reasonable jury,
properly directed, could conclude that the defendant had done acts which were more than
merely preparatory. His Lordship pointed out that the defendant's actions in obtaining,
shortening and loading the gun, and in putting on his disguise and going to the school could
only be regarded as preparatory acts. But once he had got into the car, taken out the loaded
gun and pointed it at the victim with the intention of killing him, there was sufficient
evidence for the consideration of the jury on the charge of attempted murder.
R v Campbell (1991)
The defendant planned to rob a post-office. He drove a motorbike to near the office, parked it
and approached, wearing a crash helmet. He was carrying an imitation gun and a threatening
note which he planned to pass to the cashier in the post office. He was walking down the
street and when one yard from the post office door, police, who had been tipped off, grabbed
the defendant and arrested him. He was convicted of attempted robbery and appealed.
In allowing the appeal, Watkins LJ stated that in order to effect the robbery it would have
been quite impossible unless he entered the post office, gone to the counter and made some
kind of hostile act directed at whoever was behind the counter and in a position to hand him
money. A number of acts remained undone and the series of acts which he had already
performed - namely, making his way from his home, dismounting from the cycle and walking
towards the post office door - were clearly acts which were indicative of mere preparation. If
a person, in circumstances such as this, has not even gained the place where he could be in a
position to carry out the offence, it is extremely unlikely that it could ever be said that he had
performed an act which could be properly said to be an attempt. (Note: The appropriate
charge would have been going equipped with intent to steal.)
A-G's Reference (No 1 of 1992) (1993)
The defendant was charged with attempted rape. He had pushed the victim to the ground,
removed some of her undergarments, and lain on top of her. When the police arrived she was
partially clothed, and the defendant had his trousers down. During the course of the trial the
judge directed the jury to acquit, on the basis that there was insufficient evidence of the
defendant having attempted to have sexual intercourse. The defendant was acquitted. The
Attorney-General referred the issue to the Court of Appeal.
Lord Taylor CJ stated: "It is not, in our judgment, necessary, in order to raise a prima facie
case of attempted rape, to prove that the defendant with the requisite intent had necessarily
gone as far as to attempt physical penetration of the vagina. It is sufficient if there is evidence
from which the intent can be inferred and there are proved acts which a jury could properly
regard as more than merely preparatory to the commission of the offence. For example, and
merely as an example, in the present case the evidence of the young woman's distress, of the
state of her clothing, and the position in which she was seen, together with the respondent's
acts of dragging her up the steps, lowering his trousers and interfering with her private parts,
and his answers to the police, left it open to a jury to conclude that the respondent had the
necessary intent and had done acts which were more than merely preparatory. In short that he
had embarked on committing the offence itself."
R v Geddes [1996]
The defendant had been seen by a teacher in the boys' toilets of a school. He had no
connection with the school and no right to be there. He had a rucksack with him. A police
officer saw him and shouted at him, but he left. In a cubicle in the lavatory block there was a
cider can which had belonged to the defendant. His rucksack was found in some bushes,
containing a large kitchen knife, rope and a roll of masking tape. The defendant was arrested
and identified by the teacher and some pupils. He was charged with attempted false
imprisonment. The prosecution alleged that the presence of the cider can showed that the
defendant had been inside a toilet cubicle, and that the contents of the rucksack could have
been used to catch and restrain a boy entering the lavatory. The defendant was convicted.
The Court of Appeal allowed the defendant's appeal. It held that the line of demarcation
between acts which were merely preparatory and acts which might amount to an attempt was
not always clear or easy to recognise. There was no rule of thumb test, and there must always
be an exercise of judgment based on the particular facts of the case. It was an accurate
paraphrase of the statutory test to ask whether the available evidence could show that a
defendant had done an act showed that he had actually tried to commit the offence in
question, or whether he had only got ready or put himself in a position or equipped himself to
do so.
In the present case there was not much room for doubt about the defendant's intention, and
the evidence showed that he had made preparations, had equipped himself, had got ready, had
put himself in a position to commit the offence charged, but he had never had any contact or
communication with any pupil at the school. On the facts of the case the evidence was not
sufficient in law to support a finding that the defendant had done an act which was more than
merely preparatory to wrongfully imprisoning a person unknown.
R v Tosti and White (1997)
The defendants had been seen by the owners of a farm, just before midnight, walking to the
door of a barn, and examining the padlock. They saw that they were being watched, took
fright and ran off. A car was parked in a nearby lay-by, and between the car and the barn,
hidden in a hedge, was some oxygen cutting equipment. There was sufficient evidence to
connect T with the equipment. The defendants were convicted of attempted burglary. The
defendants appealed against conviction on the ground that there was no evidence upon which
the jury could have found that an attempted burglary had been committed.
It was held by the Court of Appeal, dismissing the appeal, that the short question was whether
it could be said that the defendants, in providing themselves with oxygen cutting equipment,
driving to the scene, concealing the equipment in a hedge, approaching the door of the barn
and bending down to examine how best to go about the job of breaking into the barn, had
committed acts which were more than merely preparatory, and which amounted to acts done
in the commission of the offence. The question was essentially one of degree. It had been said
in Geddes (1996) that the test was to ask whether the evidence if accepted could show that
the defendant had done an act which showed that he had actually tried to commit the offence,
or whether he had only got ready or put himself in a position or equipped himself to do so.
Applying that guidance to the facts of the present case, the facts proved in evidence were
sufficient for the judge to leave to the jury.
R v Toothill [1998]
The victim lived in a house with a garden, which was situated in an isolated area. At about
11pm she saw the defendant standing a few feet from the rear of her house, apparently
masturbating. She telephoned the police. He was arrested in the garden, where a knife and a
glove were found. A condom was found in his pocket. The defendant admitted that he had
knocked at the door to ask for directions as he could not find where he had parked his car. He
was charged with attempted burglary with intent to rape. The defendant was convicted and
appealed on the ground that it was incumbent on the judge to look for evidence not merely of
an attempt to burgle but also an attempt to commit rape, namely that he would have
knowledge that there was a person in the house, to lay the foundation for a finding that that
was what the defendant had in his mind.
The Court of Appeal dismissed the appeal. In the present case, the actus reus of the offence
was the act of entering the property as a trespasser. What converted it into burglary was the
presence of the trespasser with the intention to commit one or other of the offences set out in
s9(2) of the Theft Act 1968. The attempt was to do the act, not to have the intention. The
crucial step that the defendant took, which established that he had gone beyond the
preparatory to the executory stage of his plan, was that he knocked at the proposed victim's
door.
R v Nash [1999]
Two letters addressed to "Paper boy" were left in the street. They were opened by a paper boy
and a paper girl who found that they contained an invitation to the recipients to engage in acts
of indecency with the author. A third letter purported to offer the recipient work with a
security company and requested a specimen of urine. All three letters were taken to the
police. At the instigation of the police the third paper boy went to meet the writer of the letter
in a local park. There he saw the defendant, who asked him if he was looking for JJ, the
signatory of the third letter. The defendant was arrested. A search of his home revealed a
typewriter bearing the same typeface as that used in the letters and a letter written in similar
terms to the other three found. There was expert evidence that all four letters had almost
certainly been written on that typewriter. The defendant's defence was that he had been set
up. He was convicted of three counts of attempting to procure an act of gross indecency. One
of the grounds of appeal was that the judge erred in ruling that there was a case to answer on
Count 3 since the fact of leaving out the third letter was no more than a mere preparatory act
and was insufficient to constitute an attempt in law.
The Court of Appeal allowed the appeal in respect of Count 3. Following the decision in
Geddes (1996), which helpfully illustrated where and how the line was drawn between acts
which were merely preparatory and acts which could amount to an attempt, the terms of letter
three, which did not contain an overtly sexual invitation, as compared with the terms of
letters one and two, were not such as to amount to an unequivocal invitation and were not
sufficiently approximate to the act of procurement to amount to an attempt.
R v Khan and others [1990]
After a discotheque a 16-year-old girl accompanied five youths in a car to a house where they
were joined by other youths. Three youths raped her. The four defendants tried to do so but
failed. The defendants were charged with attempted rape and appealed. It was argued that the
judge misdirected the jury by telling them that, even if a defendant did not know the girl was
not consenting, he was guilty of attempted rape if he tried unsuccessfully to have sexual
intercourse, being reckless whether she consented or not - ie, it was sufficient that he could
not care less whether she consented or not.
The Court of Appeal held that a man may commit the offence of attempted rape even though
he is reckless whether the woman consents to sexual intercourse since the attempt relates to
the physical activity and his mental state of recklessness relates, as in the offence of rape
itself, not to that activity but to the absence of the woman's consent. The appeals against
conviction were dismissed.
Attorney-General's Reference (No 3 of 1992) [1994]
The defendants threw a petrol bomb towards the victims, four of whom were inside their car
and two of whom were on the pavement outside. It passed over the car and smashed against a
nearby wall. The defendants' car then accelerated away. The defendants were charged with
attempted arson, being reckless whether life be endangered, contrary to s1(2) of the Criminal
Damage Act 1971. The trial judge ruled that, on a charge of attempt, intent to endanger life
was required; recklessness was not sufficient. The Attorney-General referred the issue to the
Court of Appeal.
The Court of Appeal held that on a charge of attempted aggravated arson, it was sufficient for
the Crown to establish a specific intent to cause damage by fire and that the defendant was
reckless as to whether life would thereby be endangered, because if the state of mind of the
defendant was that he intended to damage property and was reckless as to whether the life of
another would thereby be endangered, and while in that state of mind he did an act which was
more than merely preparatory to the offence, he was guilty of attempting to commit that
offence. It was not necessary that he intended that the lives of others would be endangered by
the damage which he intended.
Haughton v Smith [1975]
A van containing stolen goods was stopped by the police. It transpired that the van was
proceeding to Hertfordshire where the defendant was to make arrangements for the disposal
of the goods in the London area. In order to trap the defendant the van was allowed to
proceed on its journey with policemen concealed inside. The van was met by the defendant
who began to play a prominent role in assisting in the disposal of the van and its load. Finally
the trap was sprung and the defendant was arrested. The prosecutor was of the opinion that,
once the police had taken charge of the van, the goods had been restored to lawful custody,
and were therefore, no longer stolen goods. Accordingly the defendant was not charged with
handling 'stolen goods', contrary to s22 Theft Act 1968, but with attempting to handle stolen
goods.
The House of Lords held that a person could only be convicted of an attempt to commit an
offence in circumstances where the steps taken by him in order to commit the offence, if
successfully accomplished, would have resulted in the commission of that offence. A person
who carried out certain acts in the erroneous belief that those acts constituted an offence
could not be convicted of an attempt to commit that offence because he had taken no steps
towards the commission of an offence. In order to constitute an offence under s22 of the
Theft Act 1968 the goods had to be stolen goods at the time of the handling; it was irrelevant
that the accused believed them to be stolen goods. It followed that, since the goods which the
defendant had handled were not stolen goods, he could not be convicted of attempting to
commit the offence of handling stolen goods.
Anderton v Ryan [1985]
The defendant had bought a video recorder, but later confessed to the police that she believed
it to have been stolen property when she bought it. The defendant was charged with
attempting to handle stolen goods, although the prosecution was unable to prove that the
video recorder had in fact been stolen property.
The House of Lords (by a majority of 4-1) quashed the defendant's conviction on the ground
that she could not be guilty of attempting to handle stolen goods unless such property was
shown to have existed. A majority of their Lordships refused to accept that the defendant's
belief that goods were stolen was sufficient of itself to result in liability. Such a result may
have been the aim of the 1981 Act but their Lordships felt that Parliament would have to
express its intentions more clearly before the courts would be willing to impose liability
solely on the basis of what the defendant had thought she was doing, as opposed to what she
was actually doing.
R v Shivpuri ]1986]
The defendant was paid to act as a drugs courier. He was required to collect a package
containing drugs and to distribute its contents according to instructions which would be given
to him. On collecting the package the defendant was arrested by police officers, and he
confessed to them that he believed its contents to be either heroin or cannabis. An analysis
revealed the contents of the package not to be drugs, but a harmless vegetable substance. The
defendant was convicted for attempting to be knowingly concerned in dealing with and
harbouring a controlled drug, namely heroin.
His appeal to the House of Lords was dismissed. Lord Bridge said, in applying s1 of the
Criminal Attempts Act 1981 to the facts of the case, the first question to be asked was
whether the defendant intended to commit the offence. The answer was plainly yes. Next, did
he do an act which was more than merely preparatory to the commission of the offence? The
acts were more than merely preparatory to the commission of the intended offence. This
analysis lead to the conclusion that the defendant was rightly convicted.
R v Taaffe [1984]
The defendant smuggled a package into the UK. He mistakenly believed the package
contained currency and that the importation of currency was prohibited. The package
contained drugs. He was charged under s170(2) of the Customs and Excise Management Act
1979 with being knowingly concerned in the fraudulent evasion of the prohibition on the
importation of a controlled drug imposed by s3(1) of the Misuse of Drugs Act 1971. The
defendant was convicted. The Court of Appeal quashed his conviction on the ground that the
requisite mens rea for an offence under s170(2) was actual knowledge. The Crown appealed
to the House of Lords.
The House of Lords held that when the state of a defendant's mind and his knowledge were
ingredients of the offence with which he was charged, he had to be judged on the facts as he
believed them to be. Accordingly, since the defendant mistakenly believed that by
clandestinely importing currency he was committing an offence, his mistake of law could not
convert his actions into the criminal offence of being 'knowingly concerned' in the
importation of a controlled drug within s170(20 of the 1979 Act since he had had no guilty
mind in respect of that offence. It followed that the appeal would be dismissed.
R v Taylor (1859)
It was held that an attempt was committed where the defendant approached a stack of corn
with the intention of setting fire to it and lighted a match for that purpose but abandoned his
plan on finding that he was being watched.
CASES ON PARTICIPATION
1. MODES OF PARTICIPATION
R v Butt (1884) 51 LT 607.
The defendant had deliberately given false information to the book-keeper of the company
for which he worked, knowing that it would be entered into the accounts. As the book-keeper
had innocently entered the wrong information, the defendant was convicted as the principal
on a charge of falsifying the accounts.
2. SECONDARY PARTIES
A) LIABILITY
R v Calhaem [1985] QB 808.
The defendant had hired a man named Zajac to kill a woman. Z testified that after being paid
by the defendant he had decided not to carry out the killing, but instead to visit the victim's
house, carrying an unloaded shotgun and a hammer, to act out a charade that would give the
appearance that he had tried to kill her. He claimed that when he had stepped inside the front
door of the victim's house, she had screamed and he panicked, hitting her several times with
the hammer. The defendant appealed, submitting that, on Z's evidence there was no causal
connection, or no substantial causal connection.
The Court of Appeal affirmed the defendant's conviction. It was held that the offence of
counselling a person to commit an offence is made out if it is proved that there was a
counselling, that the principal offence was committed by the person counselled and that the
person counselled was acting within the scope of his authority and not accidentally when his
mind did not go with his actions. It is not necessary to show that the counselling was a
substantial cause of the commission of the offence.
Attorney-General's Reference (No1 of 1975) [1975] QB 773.
The accused had laced a friend's drinks with alcohol knowing the friend would shortly
afterwards be driving home. The friend was convicted of drunken driving. The accused was
charged as an accomplice to this offence, but was acquitted following a successful
submission of no case to answer. The trial judge had taken the view that there had to be
evidence of some agreement between the accomplice and the principal.
Lord Widgery CJ held that the offence had been procured because, unknown to the driver and
without his collaboration, he had been put in a position in which he had committed an offence
which he never would have committed otherwise. There was a case to answer and the trial
judge should have directed the jury that an offence is committed if it is shown beyond
reasonable doubt that the accused knew that his friend was going to drive, and also knew that
the ordinary and natural result of the added alcohol would be to bring the friend above the
prescribed blood/alcohol limit.
B) PRESENCE AT THE SCENE OF THE CRIME
R v Coney (1882) 8 QBD 534.
The two defendants were present at an illegal bare fists prize fight. It did not appear that the
defendants took any active part in the management of the fight, or that they said or did
anything. It was held to be a misdirection to tell a jury that mere presence at an illegal prize
fight was sufficient for there to be a conviction of the defendant for abetting the illegal fight.
It is simply one factor for a jury to take into account.
R v Bland [1988] Crim LR 41.
The defendant lived with her co-accused, R, in one room of a shared house. R was guilty of
possession of drugs. The defendant was also charged with possession of a controlled drug
because she was living with R. The Court of Appeal quashed her conviction and held that
there was no evidence of assistance, active or passive. The fact that she and R lived together
in the same room was not sufficient evidence from which the jury could draw such an
inference. Assistance, though passive, required more than mere knowledge. For example, it
required evidence of encouragement or of some element of control, which was entirely
lacking in the case.
R v Clarkson [1971] 1 WLR 1402.
Two soldiers (the defendants) had entered a room following the noise from a disturbance
therein. They found some other soldiers raping a woman, and remained on the scene to watch
what was happening. They were convicted of abetting the rapes and successfully appealed on
the basis that their mere presence alone could not have been sufficient for liability.
It was held that the jury should have been directed that there could only be a conviction if (a)
the presence of the defendant at the scene of the crime actually encouraged its commission,
and (b) the accused had intended their presence to offer such encouragement.
C) PARTICIPATION BY INACTIVITY
D) MENS REA OF SECONDARY PARTIES
NCB v Gamble [1959] 1 QB 11.
A lorry driver had filled his lorry with coal at an NCB yard. The weighbridge operator
noticed that the lorry was overloaded and informed the driver. The driver said he would take
the risk and the operator gave him a weighbridge ticket. The driver was found guilty of using
an overloaded lorry on the highway. The ownership in the coal did not pass until the ticket
was handed over and, therefore, the driver could not properly have left the yard without it. It
was held that the NCB (as employers of the operator) were liable as accomplices. The
operator knew he had a right to prevent the lorry leaving with the coal. It was enough that a
positive act of assistance had been voluntarily done with knowledge of the circumstances
constituting the offence.
R v Bainbridge [1960] 1 QB 129.
The defendant had supplied some cutting equipment which was subsequently used to break
into the Midland Bank in Stoke Newington. He claimed that he had thought the equipment
might be used for some illegal purpose, such as breaking up stolen property, but that he had
not known that it was to be used to break into a bank. The defendant appealed unsuccessfully
against his conviction for being an accomplice to the break-in.
The Court of Appeal held that it was essential to prove that the defendant knew the type of
crime that was going to be committed. It was not necessary to show knowledge of the
particular date and premises concerned. Lord Parker CJ said that it was not enough that he
knew that some kind of illegality was contemplated; but that, if he knew breaking and
entering and stealing was intended, it was not necessary to prove that he knew that the
Midland Bank, Stoke Newington, was going to be broken into.
Blakely and Sutton v DPP [1991] Crim LR 763.
B was having an affair with T. At a pub, T told B that he intended to go home to his wife. B
discussed this with S, who suggested that if they added alcohol to T's tonic water, T would
not drink and drive. B & S intended to tell him before he left to drive home so that he would
not go home. Unfortunately, T (the principal) left before they could tell him and was
subsequently found to be over the limit when breathalysed. The defendants' evidence ensured
that the principal was given an absolute discharge to the charge of drink-driving.
B & S were subsequently convicted of procuring that offence after the magistrates decided
that they had been reckless (within the meaning of Caldwell). The Court of Appeal quashed
their convictions and held that objective recklessness was not enough for liability. The court
expressed the opinion that only intention should suffice.
3. PARTICIPATION PUSUANT TO A JOINT ENTERPRISE
A) ACCIDENTAL DEPARTURE FROM THE COMMON DESIGN
R v Baldessare (1930) 22 Cr App R 70.
Two defendants stole a car to go joyriding. The car was driven recklessly, the brakes were
violently applied and the head-lights were not lighted. The driver killed another road user and
was convicted of his manslaughter. The passenger, B, was convicted as an accomplice to the
manslaughter. Lord Hewart CJ stated that the defendant and the driver were responsible for
the way in which the car was being driven at the moment of collision.
B) DELIBERATE DEPARTURE FROM THE COMMON DESIGN
Davies v DPP [1954] AC 378.
Two gangs of boys had a fight, during which the principal offender (Davies) had killed an
opponent with a knife. The defendant was convicted of murder. Lawson, an accomplice was
acquitted of being an accomplice to either murder or manslaughter because there was no
evidence that L knew that any of his companions had a knife.
Note: Had the victim died from blows to the head from the principal's fist or boot, then D
could have been guilty as an accomplice to manslaughter, because such a mode of attack was
contemplated by him, and the death of the victim would have been an unforeseen
consequence of its being carried out.
R v Anderson and Morris [1966] 2 QB 110.
M had a fight on the street with W (the victim) because W had just tried to strangle Mrs A.
When A arrived and learnt what had happened, he went with M in a car to find W. When W
was found, there was a fight in the street. A was seen punching W, with M standing behind
A, apparently not taking any definite part in the fight. A then stabbed W to death. M denied
knowing that A had a knife. M was convicted of manslaughter and appealed.
It was held by the Court of Appeal that where two persons embark on a joint enterprise, each
is liable criminally for acts done in pursuance of the joint enterprise, including unusual
consequences; but if one of them goes beyond what has been tacitly agreed as part of the joint
enterprise, the other is not liable for the consequence of the unauthorised act. M's conviction
was quashed.
Note: The use of the knife was not agreed upon. However, if W had died from a punch
thrown by A, M would have been an accomplice to manslaughter.
R v Mahmood [1994] Crim LR 368.
The defendant was a passenger in a car that had been unlawfully taken and was being driven
recklessly in a police chase. The defendant and the driver jumped out of the car, leaving it in
gear. The car mounted a pavement and killed a baby in a pram. It was held that if the death
had occurred while they were still in the car, the defendant could have been liable for
manslaughter because what had occurred would have resulted from a common unlawful
enterprise which had culminated in unforeseen consequences. However, there was
insufficient evidence "that he contemplated the second type of reckless driving, namely the
abandonment" and accordingly there could be no liability for manslaughter.
Question: Was this decision correct?
R v Dunbar [1988] Crim LR 693.
Two men killed a woman and were convicted of murder. The defendant was charged with
counselling the offence and convicted of manslaughter. The defendant appealed. She
admitted that she may have expressed a wish to see the victim dead, but she had been
drinking and taking drugs. She suspected that her co-defendants planned to burgle the
victim's flat and that some violence might be done to the victim, but she did not contemplate
the possibility of any serious harm being inflicted.
The Court of Appeal quashed her conviction because of a misdirection by the trial judge. If
she was a party to an agreement to kill, she was guilty of murder. If she was a party to an
agreement to inflict some harm, short of g.b.h, then she would not be guilty of murder or
manslaughter, because the killing could not be within the ambit of the agreement.
C) ACCOMPLICES TO MURDER
Chan Wing-Siu v R [1985] AC 168.
The appellants were members of a gang who had gone to the victim's house to commit a
robbery, arming themselves with knives. During the robbery the victim was stabbed to death
by a member of the gang and the defendants were convicted as accomplices to the murder.
The Privy Council dismissed their appeals. It was held that for an accomplice to be guilty of
murder it was sufficient for the prosecution to establish that he foresaw death or grievous
bodily harm as a possible incident of the common design being carried out. On the other
hand, if it was not even contemplated by the accomplice that serious bodily harm would be
intentionally inflicted, he is not a party to murder.
D) REPENTANCE OF SECONDARY PARTIES
R v Becerra and Cooper (1975) 62 Cr App R 212.
The defendants agreed to burgle a house, and B gave C a knife to use in case there was any
trouble. When they were disturbed by one of the tenants, B jumped out of the window and
ran off, shouting "There's a bloke coming. Let's go." C remained behind and murdered the
tenant. B was convicted as an accomplice to the murder despite his contentions that he had
withdrawn from the enterprise. In dismissing B's appeal against conviction, Roskill LJ stated
the law as follows:
After a crime has been committed and before an abandonment of the common enterprise can
be established there must be something more than a mere mental change of intention and
physical change of place by those associates who wish to dissociate themselves from the
consequences. What must be done to break the chain of responsibility will depend upon the
circumstances of each case.
Where practicable and reasonable there must be timely communication of the intention to
abandon the common purpose from those who wish to dissociate themselves from the
contemplated crime to those who desire to continue in it. "Timely communication" ought to
be such communication, verbal or otherwise, that will serve unequivocal notice upon the
other party to the common unlawful cause that if he proceeds upon it he does so without the
further aid and assistance of those who withdraw.
In the present case, the knife having been contemplated for use when it was handed over by B
to C, if B wanted to withdraw at that stage he would have to "repent" in some manner vastly
different and vastly more effective than merely to say "Come on, let's go" and go out through
the window.
R v Grundy [1977] Crim LR 543.
The defendant had supplied a burglar with information about the premises, the habits of the
owner and other useful matters. However, for two weeks before the burglar did so, the
defendant had been trying to stop him breaking in. It was held that, following Becerra, the
defence of withdrawal should have been left to the jury.
R v Whitefield (1984) 79 Cr App R 36.
Two people burgled a flat while the occupier was away. The defendant, who lived next door,
admitted telling the principal offender that the flat would be empty. He also admitted that he
had agreed to carry out the burglary with the principal, but that he had later changed his
mind. W was present in his flat the night the burglary was committed. He heard the flat being
broken into but did nothing to prevent the offence. At his trial for burglary, W unsuccessfully
submitted that he had withdrawn from the common enterprise to burgle the adjoining flat (by
informing the principal that he did not wish to take part in it, and by refusing to allow him
access to his flat and balcony for the purpose of effecting entry to his neighbour's flat).
The Court of Appeal quashed the conviction. There was evidence that W had served
unequivocal notice on the principal that, if he proceeded with the burglary they had planned
together, he would do so without W's aid or assistance. The jury should have been told that, if
they accepted the evidence, that was a defence.
4. ACQUITTAL OF THE PRINCIPAL OFFENDER
R v Bourne (1952) 36 Cr App R 1251.
The defendant had terrorised his wife into committing buggery with a dog. He was convicted
of aiding and abetting his wife to commit buggery with a dog. Lord Goddard CJ stated that if
the woman had been charged herself with committing the offence, she could have pleaded
duress, which would have shown that she had no mens rea. However, if an act of buggery is
committed, the crime is committed. The evidence was that the defendant had caused his wife
to have connection with a dog and was therefore guilty.
R v Cogan and Leak [1976] QB 217.
L persuaded C to have sexual intercourse with Mrs L, telling him that she liked being forced
to have sex against her will, and that if she struggled it was merely evidence of her
enjoyment. C was convicted of rape but appealed successfully against his conviction on the
basis that he had honestly thought she was consenting to sexual intercourse. L appealed
against his conviction for aiding and abetting the rape, on the basis that if the principal had
been acquitted, there was no offence to which he could have been an accomplice.
In dismissing the appeal, the Court of Appeal held that the actus reus of rape had been
committed by C in that Mrs L had been forced to submit to sexual intercourse without her
consent. L had known that she was not consenting, and thus had the necessary mens rea to be
an accomplice. Alternatively, the court was willing to view C as an innocent agent through
whom L had committed the offence of rape.
CASES ON STRICT LIABILITY
INTRODUCTION
R v Prince (1875) LR 2 CCR 154.
The defendant ran off with an under-age girl. He was charged with an offence of taking a girl
under the age of 16 out of the possession of her parents contrary to s55 of the Offences
Against the Person Act 1861 (now s20 of the Sexual Offences Act 1956). The defendant
knew that the girl was in the custody of her father but he believed on reasonable grounds that
the girl was aged 18. It was held that knowledge that the girl was under the age of 16 was not
required in order to establish the offence. It was sufficient to show that the defendant
intended to take the girl out of the possession of her father.
R v Hibbert (1869) LR 1 CCR 184.
The defendant met a girl under sixteen years of age in a street, and induced her to go with
him to a place at some distance, where he seduced her, and detained her for some hours. He
then took her back to where he met her and she returned home to her father. The defendant
was charged under s55 OAPA 1861. It was held that in the absence of any evidence that the
defendant knew, or had reason for knowing, or that he believed, that the girl was under the
care of her father at the time, that a conviction under s55 OAPA 1861 could not be sustained.
GENERAL PRINCIPLES/THE MODERN CRITERIA
R v Blake (1996) The Times, 14 August.
Investigation officers heard an unlicensed radio station broadcast and traced it to a flat where
the defendant was discovered alone standing in front of the record decks, still playing music
and wearing a set of headphones. Though the defendant admitted that he knew he was using
the equipment, he claimed that he believed he was making demonstration tapes and did not
know he was transmitting. The defendant was convicted of using wireless telegraphy
equipment without a licence, contrary to s1(1) Wireless Telegraphy Act 1949 and appealed
on the basis that the offence required mens rea.
The Court of Appeal held that the offence was an absolute (actually a strict) liability offence.
The Court applied Lord Scarman's principles in Gammon and found that, though the
presumption in favour of mens rea was strong because the offence carried a sentence of
imprisonment and was, therefore, "truly criminal", yet the offence dealt with issues of serious
social concern in the interests of public safety (namely, frequent unlicensed broadcasts on
frequencies used by emergency services) and the imposition of strict liability encouraged
greater vigilance in setting up careful checks to avoid committing the offence.
NOTE: The court seems to have been inconsistent in its use of terminology in the present
case. The offence is one of strict liability as the defendant had to be shown to have known
that he was using the equipment.
Sweet v Parsley [1970] AC 132.
The defendant was a landlady of a house let to tenants. She retained one room in the house
for herself and visited occasionally to collect the rent and letters. While she was absent the
police searched the house and found cannabis. The defendant was convicted under s5 of the
Dangerous Drugs Act 1965 (now replaced), of "being concerned in the management of
premises used for the smoking of cannabis". She appealed alleging that she had no
knowledge of the circumstances and indeed could not expect reasonably to have had such
knowledge.
The House of Lords, quashing her conviction, held that it had to be proved that the defendant
had intended the house to be used for drug-taking, since the statute in question created a
serious, or "truly criminal" offence, conviction for which would have grave consequences for
the defendant. Lord Reid stated that "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". And equally important, "the press in this country are vigilant to expose injustice, and
every manifestly unjust conviction made known to the public tends to injure the body politic
[people of a nation] by undermining public confidence in the justice of the law and of its
administration."
Lord Reid went on to point out that in any event it was impractical to impose absolute
liability for an offence of this nature, as those who were responsible for letting properties
could not possibly be expected to know everything that their tenants were doing.
Cundy v Le Cocq (1884) 13 QBD 207.
The defendant was convicted of unlawfully selling alcohol to an intoxicated person, contrary
to s13 of the Licensing Act 1872. On appeal, the defendant contended that he had been
unaware of the customer's drunkenness and thus should be acquitted. The Divisional Court
interpreted s13 as creating an offence of strict liability since it was itself silent as to mens rea,
whereas other offences under the same Act expressly required proof of knowledge on the part
of the defendant. It was held that it was not necessary to consider whether the defendant
knew, or had means of knowing, or could with ordinary care have detected that the person
served was drunk. If he served a drink to a person who was in fact drunk, he was guilty.
Stephen J stated:
Here, as I have already pointed out, the object of this part of the Act is to prevent the sale of
intoxicating liquor to drunken persons, and it is perfectly natural to carry that out by throwing
on the publican the responsibility of determining whether the person supplied comes within
that category.
Sherras v De Rutzen [1895] 1 QB 918.
The defendant was convicted of selling alcohol to a police officer whilst on duty, contrary to
s16(2) of the Licensing Act 1872. He had reasonably believed the constable to be off duty as
he had removed his arm-band, which was the acknowledged method of signifying off duty.
The Divisional Court held that the conviction should be quashed, despite the absence from
s16(2) of any words requiring proof of mens rea as an element of the offence. Wright J
expressed the view that the presumption in favour of mens rea would only be displaced by the
wording of the statute itself, or its subject matter. In this case the latter factor was significant,
in that no amount of reasonable care by the defendant would have prevented the offence from
being committed. Wright J stated:
"It is plain that if guilty knowledge is not necessary, no care on the part of the publican could
save him from a conviction under section 16, subsection (2), since it would be as easy for the
constable to deny that he was on duty when asked, or to produce a forged permission from his
superior officer, as to remove his armlet before entering the public house. I am, therefore, of
opinion that this conviction ought to be quashed."
Lim Chin Aik v R [1963] AC 160.
The defendant had been convicted of contravening an order prohibiting in absolute terms, his
entry into Singapore, despite his ignorance of the order's existence. In allowing the
defendant's appeal, Lord Evershed expressed the view that the imposition of strict liability
could only really be justified where it would actually succeed in placing the onus to comply
with the law on the defendant. If the defendant is unaware that he has been made the subject
of an order prohibiting him from entering a country, the imposition of strict liability should
he transgress the order would not in anyway promote its observance. Lord Evershed stated:
"But it is not enough in their Lordship's 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."
MODERN EXAMPLES
Warner v MPC [1969] 2 AC 256.
The defendant, who was a floor-layer by occupation, sold scent as a side-line. He went to a
caf� and asked if anything had been left for him. He was given two boxes, one containing
perfume and the other 20,000 tablets of drugs. He was charged with being in possession of a
prohibited drug contrary to s1 of the Drugs (Prevention of Misuse) Act 1964 (now replaced).
He said he thought they both contained perfume.
In the House of Lords, Lord Morris held that the defendant being in physical control of the
package and its contents either: (a) with his consent thereto knowing that it had contents, or
(b) with knowledge that the package was in his control, his possession of the tablets was
established for the purposes of s1, whether or not the defendant realised that he was in
possession of a prohibited drug.
Lord Reid held that the strong inference that possession of a package by an accused was
possession of its contents could be rebutted by raising real doubt either (a) whether the
accused (if a servant) had both no right to open the package and no reason to suspect that the
contents of the package were illicit, or (b) that (if the accused were the owner of the package)
he had no knowledge of, or was genuinely mistaken as to, the actual contents or their illicit
nature and received them innocently, and also that he had no reasonable opportunity since
receiving the package to acquaint himself with its contents.
Note: a limited defence now exists under the Misuse of Drugs Act 1971. Section 5 creates the
offence of possessing a controlled drug, but s28 goes on to provide that a defendant should be
acquitted if he can show that he did not know or suspect, and could not reasonably have
known or suspected, that the substance was a prohibited drug.
Alphacell Ltd v Woodward [1972] AC 824.
The defendants were charged with causing polluted matter to enter a river contrary to s2 of
the Rivers (Prevention of Pollution) Act 1951. The river had in fact been polluted because a
pipe connected to the defendant's factory had been blocked, and the defendants had not been
negligent. The House of Lords nevertheless held that the defendants were liable. Lord
Salmon stated:
If this appeal succeeded and it were held to be the law that no conviction be obtained under
the 1951 Act unless the prosecution could discharge the often impossible onus of proving that
the pollution was caused intentionally or negligently, a great deal of pollution would go
unpunished and undeterred to the relief of many riparian factory owners. As a result, many
rivers which are now filthy would become filthier still and many rivers which are now clean
would lose their cleanliness. The legislature no doubt recognised that as a matter of public
policy this would be most unfortunate. Hence s2(1)(a) which encourages riparian factory
owners not only to take reasonable steps to prevent pollution but to do everything possible to
ensure that they do not cause it.
Smedleys Ltd v Breed [1974] AC 839.
Four tins of peas, out of three-and-a-half million tins, produced by the defendants had
contained caterpillars. The defendant company was convicted of "selling food not of the
substance demanded by the purchaser" contrary to s2(1) of the Food and Drugs Act 1955
(now replaced). They contended that the presence of the caterpillar in the tin was an
unavoidable consequence of the process of collection or preparation and that they therefore
had a defence under s3(3) of the 1955 Act. They also claimed that they had taken all
reasonable care.
It was held by the House of Lords that in order to establish a defence under s3(3) it was
necessary to show that the presence of the extraneous matter was a consequence of the
process of collection or preparation of the food and that that consequence could not have
been avoided by any human agency; it was not sufficient for the defendant to show that he
had taken all reasonable care to avoid the presence of the extraneous matter.
Even if it were accepted that the presence of the caterpillar was a consequence of the process
of collection or preparation rather than something which had occurred despite those
processes, the defendants were not entitled to rely on s3(3) since the caterpillar could have
been removed from the peas during the process of collection or preparation and its presence
could thereby have been avoided.
Note: the offence is now contained in the Food Safety Act 1990. Under s21 of the 1990 Act, a
defendant has a defence if he proves that he took all reasonable precautions and exercised all
due diligence to avoid the commission of the offence by himself or a person under his
control.
CASES ON THEFT
1. APPROPRIATION
Lawrence v MPC [1972] AC 626.
An Italian student took a taxi ride for which the proper fare was about 50p. He offered the
defendant a �1 note, but the defendant said more money was needed and proceeded to take a
further £ 1 note and a £ 5 note from the student's open wallet. The defendant was convicted of
theft and appealed unsuccessfully to the House of Lords. The defendant argued that he had
not stolen the money because the victim had consented to its being taken by him. Viscount
Dilhorne rejected this argument because the student only consented to the legal amount being
taken and also the defendant's contention that he should have been charged under s15
(obtaining property by deception) and not s1.
R v Morris, Anderton v Burnside [1984] AC 320.
Morris took two items from supermarket shelves and replaced the correct labels with ones
showing lower prices. He took the items to the checkout, paid the lower price and was then
arrested. Burnside took the label off a joint of meat and placed it on a more expensive joint.
His act was discovered and he was arrested before he got to the checkout. Both defendants
were convicted.
Lord Roskill explained that the switching of price labels amounted to appropriation because it
was an assumption by the defendant of the owner's right to determine what price the goods
were to be sold at. If accompanied by mens rea it would be theft. Lord Roskill envisaged
appropriation as any assumption of any right of an owner which amounted to adverse
interference with, or usurpation of, those rights.
2. PROPERTY
Oxford v Moss [1979] Crim LR 119.
A student borrowed an advance copy of an examination paper, copied the questions and then
returned the paper. The Divisional Court held that he was not guilty of theft on the basis that
information could not be stolen. Clearly the paper on which the exam questions were typed
was property belonging to Liverpool University, but there was no evidence that the defendant
intended to permanently deprive the University of it.
3. BELONGING TO ANOTHER
R v Turner (No 2) [1971] 1 WLR 901.
The defendant removed his car from outside the garage at which it had been repaired,
intending to avoid having to pay for the repair. The Court of Appeal held that the car could be
regarded as 'property belonging to another' as against the owner, since it was in the
possession and control of the repairer. (Note: were the same facts to present themselves
today, a charge of making off without payment contrary to s3 TA 1978 would be more
appropriate.)
Williams v Phillips (1957) 41 Cr App R 5.
A householder put refuse out for collection by the local authority refuse workers. It was held
by the Divisional Court that such refuse remained property belonging to the householder until
collected, whereupon property passed to the local authority. Hence, refuse workers helping
themselves to such property could be convicted of theft, on the basis that the property never
became ownerless.
R v Woodman [1974] QB 758.
A sold all the scrap metal on certain disused business premises to B, who removed most of it
but left some as being too inaccessible to be worth the expense of removal. The defendant
then entered the premises to take some of this scrap and was held to have been rightly
convicted of its theft. A continued to control the site and his conduct in erecting fences and
posting notices showed that he intended to exclude others from it.
R v (Adrian) Small [1987] Crim LR 778.
The defendant was charged with theft of a car. He claimed that he thought that it had been
abandoned by the owner because it had been left for over a week with the keys in it. The
Court of Appeal ruled that he could not be guilty of theft if he had an honest belief to that
effect, as if the car had been abandoned, the owner would not be 'deprived' of it.
R v Hall [1973] 1 QB 496.
The defendant was a travel agent who had taken money for securing airline tickets for
customers and not booked them. The defendant paid all the monies into the firm's general
trading account. His business collapsed and the money was lost. He was convicted of theft of
the money when the tickets failed to materialise. The Court of Appeal however, held that he
was not under an obligation under s5(3). Although the defendant had a general obligation to
fulfil his contract he did not have to deal with those specific notes and cheques in a particular
way. He was free to use it as he pleased, and was therefore not guilty of theft when he was
later unable to provide the tickets required. Edmund-Davies LJ stated:
"… when a client goes to a firm carrying on the business of travel agents and pays them
money, he expects that in return he will, in due course, receive the tickets and other
documents necessary for him to accomplish the trip for which he is paying, and the firm are
"under an obligation" to perform their part to fulfil his expectation and are liable to pay him
damages if they do not. But, in our judgment, what was not here established was that these
clients expected them to "retain and deal with that property or its proceeds in a particular
way," and that an "obligation" to do so was undertaken by the appellant.
We must make clear, however, that each case turns on its own facts. Cases would, we
suppose, conceivably arise where by some special arrangement (preferably evidenced by
documents), the client could impose upon the travel agent an "obligation" falling within
section 5(3). But no such special arrangement was made in any of the seven cases here being
considered."
R v Brewster (1979) 69 Cr App R 375.
It was held that an insurance broker could be guilty of theft of insurance premiums collected
by him for which he had to account to the insurance company. A determining factor was that
the contract between the defendant and the insurance company stated that at all times the
premiums were to be the property of the company.
Davidge v Bunnett [1984] Crim LR 297.
The defendant shared a flat with several other people who gave her cheques on the
understanding that a communal gas bill would be paid with the proceeds. In fact, the
defendant spent the proceeds on Christmas presents and left the flat without giving notice.
The Divisional Court held that the defendant was under a legal obligation to use the proceeds
of the cheques in a particular way (for the discharge of the gas bill) and therefore they were
property belonging to another by virtue of s5(3). This was therefore theft.
R v Wain [1995] 2 Cr App Rep 660
The defendant, by organising events, raised money for a company which distributed money
among charities. He paid what he had raised into a special bank account and thereafter, with
the consent of the company, into his own bank account. He then dishonestly dissipated the
credit in his account. The Court of Appeal held that he thereby appropriated property
belonging to another because the jury were entitled to find that he was a trustee of the money
collected and had therefore received it subject to an obligation to retain its proceeds (the
successive bank accounts) and deal with them in a particular way (to hand them over to the
company).
A-G' Reference (No 1 of 1983) [1985] QB 182.
The defendant, a policewoman, was overpaid. The money was credited to her bank account
as a result of an error by her employer. The evidence suggested that having discovered the
overpayment, the defendant simply allowed the money to remain in the account. She was
charged with theft of the sum overpaid but the trial judge directed the jury to acquit. The
question of whether a charge of theft was possible in such a situation was referred to the
Court of Appeal.
It was decided that provided there was sufficient evidence of mens rea, a charge of theft
could succeed in such a situation. The defendant had got property (the excess payment) by
another's mistake and was under an obligation to restore the debt (a chose in action) to her
employer. Further, Lord Lane CJ suggested that s5(4) only started to operate from the
moment the defendant became aware of the overpayment.
R v Shadrokh-Cigari [1988] Crim LR 465.
The defendant, who was the guardian of a child to whose bank account approximately £
286,000 had been credited in error instead of £ 286, persuaded the child to sign authorities
instructing the bank to issue drafts credited to him. The defendant spent most of the excess
money before he was discovered, and was convicted of theft of the drafts on the basis that
they remained property belonging to another, namely the issuing bank.
The Court of Appeal expressed the view that the conviction for theft was sustainable on two
grounds: (1) under s5(1) as the bank still had an equitable interest in the drafts; therefore the
drafts could still be regarded as property belonging to another; and (2) under s5(4) as the
defendant had obtained the drafts as a result of the bank's mistake, and was under an
obligation to restore the property or its proceeds.
R v Stalham [1993] Crim LR 310.
The defendant was notified that he would be receiving a pay rise of �4,080, payment to be in
instalments. A transfer of the total sum was made to the defendant in error, and he was told
that a stop would be put on the transfer, and a cheque for the first instalment issued. The
cheque was issued, but a stop was not put on the transfer. When queried by a wages clerk, the
defendant expressed the view that he believed it to be a tax rebate. The defendant signed a
blank cheque which, with his brother's involvement, was subsequently made out to a woman
who paid it into her account and gave the proceeds of the cheque to the defendant's brother.
On a charge of theft, the defendant had contended that the money had not been property
belonging to another. He was convicted and appealed.
The appeal was dismissed. The Court of Appeal held that it was bound to apply its previous
decision in A-G's Reference (No 1 of 1983). As in that case, the property (the chose in action
represented by the right to draw on the account) had been transferred as the result of a
mistake by the employer. The result was that it remained, as against the employee, property
belonging to another, because there was a legal obligation to make restoration, thus the
provisions of s5(4) could apply.
THE MENS REA OF THEFT
1. DISHONESTY
s2(1)(a) - BELIEF IN LEGAL RIGHT If D mistakenly believes that he owns V's umbrella,
his appropriation of it would not be dishonest whether his mistake, or ignorance, is of fact or
law. Moreover, D will not commit theft where he appropriates V's umbrella in the belief that
it belongs to X on whose behalf he is acting. Similarly, D would have a defence if he took a
bicycle belonging to V, in order to recoup a debt, under the erroneous belief that the law
permitted debts to be recovered in this way. The D's belief merely has to be honestly held, it
does not have to be reasonable. As with all subjective tests, the more outlandish the D's
honest belief is, the less likely he is to be believed.
s2(1)(b) - BELIEF IN THE OTHER'S CONSENT This might apply where D's car has run out
of petrol, and D takes a can of petrol from his next-door neighbour V's garden believing that
V would have consented had he known. Again the test is subjective. But D must believe not
only that V would have consented to the appropriation but that V would have consented to
the appropriation in the particular circumstances. D may believe that his next-door neighbour
would consent to his appropriating a pint of milk from his doorstep when D himself had
forgotten to leave an order for the milkman; but may believe that his neighbour would not
consent to D's appropriating the milk in order to sell it at a profit to a thirsty hitch-hiker who
is passing by.
s2(1)(c) - BELIEF THAT PROPERTY HAS BEEN LOST Again the test for the D's belief is
subjective. As regards the question of what might be required by taking reasonable steps to
discover ownership will depend partly on the identification available, the location in which it
is found, and the value of the property. A person finding a �10 note in the street may well
come within this subsection, unless he has just seen it fall from the pocket of V who is
walking in front of him. Similarly, if D finds a suitcase containing �1m in the street one
would expect him to make considerable efforts to locate the owner. It should be kept in mind
that s2(1)(c) is concerned with what the D views as reasonable steps.
S2(2) - WILLINGNESS TO PAY For example, where D sees V's newspaper poking out of
his letterbox, knowing that he would not wish to sell it, pulls out the newspaper, and leaves
its price on V's doormat, D could be guilty of theft.
R v Ghosh [1982] QB 1053.
The defendant was a consultant at a hospital. He falsely claimed fees in respect of an
operation that he had not carried out. He claimed that he thought he was not dishonest by his
standards because the same amount of money was legitimately payable to him for
consultation fees. The judge directed the jury that they must simply apply their own
standards. He was convicted of an offence contrary to s15 TA 1968 (which uses the same
concept "dishonesty" and appealed against his conviction). The appeal was dismissed by the
Court of Appeal. Lord Lane CJ stated:
"In determining whether the prosecution has proved that the defendant was acting
dishonestly, a jury must first of all decide whether according to the ordinary standards of
reasonable and honest people what was done was dishonest. If it was not dishonest by those
standards, that is the end of the matter and the prosecution fails.
If it was dishonest by those standards, then the jury must consider whether the defendant
himself must have realised that what he was doing was by those standards dishonest. In most
cases, where the actions are obviously dishonest by ordinary standards, there will be no doubt
about it. It will be obvious that the defendant himself knew he was acting dishonestly. It is
dishonest for a defendant to act in a way which he knows ordinary people consider to be
dishonest, even if he asserts or genuinely believes that he is morally justified in acting as he
did. For example, Robin Hood or those ardent anti-vivisectionists who remove animals from
vivisection laboratories are acting dishonestly, even though they may consider themselves to
be morally justified in doing what they do, because they know that ordinary people would
consider these actions to be dishonest."
2. INTENTION TO PERMANENTLY DEPRIVE
R v Warner (1970) 55 Cr App R 93.
The defendant took a tool-box to annoy the owner but panicked and hid it when the police
were called. He claimed that he intended to replace it as soon as he could do so undetected,
but the judge directed the jury that an intention to keep property indefinitely could amount to
theft. The Court of Appeal quashed the conviction. (Note: presumably in practice a jury
simply might not believe such a story.)
R v Velumyl [1989] Crim LR 299.
The defendant had taken money from his employer's safe and claimed that he intended to pay
it back after the weekend. The Court of Appeal held that he had not intended to return the
exact coins and notes, and that therefore he was properly convicted of theft. (Note: in such
cases it would be far better for the defendant to contend that he was not dishonest given his
intention to replace the money with an equivalent fund.)
s6(1) - INTENTION TO USE OR DISPOSE OF THE GOODS
* Where D abandons property belonging to another he may be deemed to intend to
permanently deprive that other of it, if the circumstances are such that there is little likelihood
of the owner ever having the property returned to him. For example, D takes V's book and
leaves it in a dustbin or on a park bench. D may hope that it is returned to V, but it is likely to
be regarded as a disposal regardless of V's rights.
* D may be deemed to have an intention to permanently deprive where he borrows another's
property for a period and in circumstances amounting to an outright taking. The commonest
example given is that involving a season ticket: V owns a season ticket entitling him to enter
a football match for 21 home league games and D takes the ticket at the beginning of the
season, uses it to attend the games, and returns it to V at the end of the season. Clearly V gets
his ticket back, but the borrowing of it by D has taken the 'value' out of it, and such conduct
would amount to theft by virtue of s6(1). (Note: Where D uses the ticket to get into one of the
21 games, he may be charged with obtaining services by deception contrary to s1(1) TA
1978.)
R v Lavender [1994] Crim LR 297.
The defendant removed doors from one council property undergoing repairs and used them to
replace damaged doors at another council property. It was held that this was a "disposal"
under s6(1) because the defendant intended to treat the doors as his own, regardless of the
council's rights".