Criminal law
William Wilson Norman Baird Julia Fionda Mary Luckham
This edition of the guide was prepared for the University of London International Programmes by:
William Wilson, Professor of Criminal Law, Queen Mary.
The 2010 edition was prepared by:
Mary Luckham, Assistant Director, University of London Laws Programme.
Norman Baird, Editor, Criminal Law Online (www.criminallawonline.com).
Julia Fionda, Professor of Law, Kingston University.
In 2010 Mary Luckham was responsible for Chapters 1–6, 9–10 and 18; Norman Baird for Chapters 7–8 and 14–15; and Julia Fionda for Chapters 11–13 and 16–17. This is one of a series of subject guides published by the University. We regret that due to pressure of work the authors are unable to enter into any correspondence relating to, or arising from, the guide. If you have any comments on this subject guide, favourable or unfavourable, please use the form at the back of this guide.
University of London International Programmes Publications Office Stewart House 32 Russell Square London WC1B 5DN United Kingdom www.londoninternational.ac.uk Published by: University of London © University of London 2012
The University of London asserts copyright over all material in this subject guide except where otherwise indicated. All rights reserved. No part of this work may be reproduced in any form, or by any means, without permission in writing from the publisher. We make every effort to contact copyright holders. If you think we have inadvertently used your copyright material, please let us know.
Criminal law Contents
Contents 1 Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1.1
Studying criminal law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.2
Subject materials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.3
Online resources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
1.4
The examination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2 The elements of an offence . . . . . . . . . . . . . . . . . . . . . . . 11 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12 2.1
General analysis of criminal offences . . . . . . . . . . . . . . . . . . . . .13
2.2
Limitations on the value of the Latin terms actus reus and mens rea. . . . . . 14
2.3
Proof of the ingredients of an offence . . . . . . . . . . . . . . . . . . . . .15
2.4
Lawful excuse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18
3 Actus reus: the conduct element. . . . . . . . . . . . . . . . . . . . . 19 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20 3.1
Voluntariness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21
3.2
Omissions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21
3.3
Imposition of liability for an omission to act . . . . . . . . . . . . . . . . . .22
3.4
Duty to act under the common law . . . . . . . . . . . . . . . . . . . . . .24
3.5
Distinguishing between act and omission . . . . . . . . . . . . . . . . . . .26
3.6
New categories of duty . . . . . . . . . . . . . . . . . . . . . . . . . . . .27
3.7
The ‘circumstances’ element of the actus reus. . . . . . . . . . . . . . . . . 28
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30
4 Actus reus: consequences . . . . . . . . . . . . . . . . . . . . . . . . 31 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .32 4.1
Causation and liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . .33
4.2
Factual causation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .34
4.3
Legal causation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .36
4.4
Intervening causes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .38
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .43
5 Mens rea . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .46 5.1
Mens rea . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
5.2
Intention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .49
5.3
Recklessness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .53
5.4
Negligence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .56
5.5
Coincidence of actus reus and mens rea . . . . . . . . . . . . . . . . . . . . 56
5.6
Transferred malice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .58
5.7
Strict liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .59
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .64
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6 Unlawful homicide: murder and manslaughter . . . . . . . . . . . . . 65 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .66 6.1
Homicide in context . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .67
6.2
The distinction between murder and manslaughter . . . . . . . . . . . . . .68
6.3
The actus reus of murder and manslaughter . . . . . . . . . . . . . . . . . .69
6.4
The mens rea of murder . . . . . . . . . . . . . . . . . . . . . . . . . . . .72
6.5
Involuntary manslaughter . . . . . . . . . . . . . . . . . . . . . . . . . . .72
6.6
Proposed reforms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .79
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .82
7 Voluntary manslaughter: the defences of loss of control and diminished responsibility . . . . . . . . . . . . . . . . . . . . . . . . 83 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .84 7.1
Loss of control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .85
7.2
Diminished responsibility . . . . . . . . . . . . . . . . . . . . . . . . . . .88
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .97
8 Simple non-fatal offences against the person . . . . . . . . . . . . . . 99 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100 8.1
Common assault . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
8.2
Assault . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
8.3
Battery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
8.4
Consent as a defence to assault and battery . . . . . . . . . . . . . . . . . 107
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114
9 Aggravated non-fatal offences against the person . . . . . . . . . . . 115 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116 9.1
Assault occasioning actual bodily harm . . . . . . . . . . . . . . . . . . . 117
9.2
Malicious wounding or inflicting grievous bodily harm . . . . . . . . . . . 119
9.3
Racial or religious aggravation. . . . . . . . . . . . . . . . . . . . . . . . 122
9.4
Wounding or causing grievous bodily harm with intent and malicious wounding with intent to resist or prevent arrest . . . . . . . . . . . . . . 123
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130
10 Sexual offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132 10.1 The social context of sexual offences . . . . . . . . . . . . . . . . . . . . 133 10.2 The law reform process . . . . . . . . . . . . . . . . . . . . . . . . . . . 134 10.3 Rape. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136 10.4 Assault by penetration . . . . . . . . . . . . . . . . . . . . . . . . . . . 138 10.5 The meaning of ‘sexual’ . . . . . . . . . . . . . . . . . . . . . . . . . . . 139 10.6 Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141 Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149
11 Defences 1: affirmative defences . . . . . . . . . . . . . . . . . . . . 151 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152 11.1 Duress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153 11.2 Duress of circumstances . . . . . . . . . . . . . . . . . . . . . . . . . . 157 11.3 Self-defence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158 11.4 Necessity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162 Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166
Criminal law Contents 12 Defences 2: involuntary behaviour, mental disorder and other failure of proof defences . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168 12.1 Involuntary behaviour: general . . . . . . . . . . . . . . . . . . . . . . . 169 12.2 Sane automatism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170 12.3 Limits to the defence of automatism . . . . . . . . . . . . . . . . . . . . 171 12.4 Insanity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173 12.5 Other ‘failure of proof’ defences . . . . . . . . . . . . . . . . . . . . . . . 180 Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187
13 Attempt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 190 13.1 Attempt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191 Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 200
14 Parties to crime . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 202 14.1 The framework of secondary liability . . . . . . . . . . . . . . . . . . . . 203 14.2 Actus reus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203 14.3 Mens rea . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 205 14.4 Withdrawal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 214 Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 216
15 Offences against property 1: theft and fraud . . . . . . . . . . . . . . 217 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218 15.1 Theft . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219 15.2 Fraud . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 227 Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 238
16 Offences against property 2: robbery and burglary . . . . . . . . . . . 239 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 240 16.1 Robbery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 241 16.2 Burglary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 242 Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 248
17 Criminal damage . . . . . . . . . . . . . . . . . . . . . . . . . . . . 249 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 250 17.1 Simple criminal damage. . . . . . . . . . . . . . . . . . . . . . . . . . . 251 17.2 Mens rea . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 254 17.3 Aggravated criminal damage . . . . . . . . . . . . . . . . . . . . . . . . 255 17.4 Arson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 257 17.5 Defences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 258 Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 263
Feedback to activities . . . . . . . . . . . . . . . . . . . . . . . . . . 265 About feedback . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 266 Chapter 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 267 Chapter 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 268 Chapter 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 272 Chapter 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 276 Chapter 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 281 Chapter 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 283
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University of London International Programmes Chapter 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 284 Chapter 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 286 Chapter 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 290 Chapter 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 294 Chapter 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 298 Chapter 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 302 Chapter 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 302 Chapter 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 303 Chapter 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 309 Chapter 17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 310
1
Introduction
Contents 1.1
Studying criminal law . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.2
Subject materials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.3
Online resources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
1.4
The examination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
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University of London International Programmes This subject guide, together with its study pack and the online resources provided for you, is designed to help you to study the criminal law of England and Wales. Although it is not intended that this guide should replace textbook and other reading, unlike your textbooks and other materials, its content reflects the Undergraduate Laws Criminal law syllabus of the University of London International Programmes. The syllabus can be downloaded from the Laws Virtual Learning Environment (VLE) which can be accessed through the student portal at https://my.londoninternational.ac.uk/ Each chapter of the guide will highlight the most important aspects of the topic and give guidance as to essential reading. Remember, though, that this guide is not exhaustive and cannot replace the reading of cases, textbooks and other materials. Within each chapter you will find activities designed to test your knowledge and understanding of the topic. Feedback is provided at the end of the guide for most of these activities. Many of the activities will be based on material that is available through the Online Library (see below) or the Criminal law study pack. A number of chapters end with a sample examination question and advice on how you should answer such questions. There are also self-reflection points and selfassessment questions throughout the guide. As these are ‘self-reflection/assessment’ no feedback is provided. These questions should be easily answerable if you have read the appropriate section of the chapter and the essential reading. At the end of each chapter there is an opportunity for you to reflect on and review your understanding of the issues contained in that chapter. You are strongly advised to carry out this review and to go over any points which you still feel unsure about before proceeding to the next chapter. In addition, there is an increasing amount of support material provided for you on the Laws VLE (see below). This material includes audio presentations and newsletters and you should get into the habit of using the VLE regularly.
Learning outcomes When you have completed this chapter, you should be able to:
begin your study of criminal law by approaching each topic in a systematic way
understand how the various elements in each chapter of the subject guide are designed to help you with your understanding of the principles outlined in that chapter
carry out basic legal research in the Online Library
navigate the Criminal law area of the VLE and access any audio presentation(s)/ newsletter(s) relevant to the topic you are studying.
Criminal law Chapter 1 Introduction
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1.1 Studying criminal law The first thing to understand is that you are studying substantive criminal law and not rules of evidence and procedure which, although relevant in a criminal trial, are not part of this course. Criminal law governs relationships between the individual and the state. If a person breaches the criminal law, this is viewed as being far more serious than a breach of the civil law, which governs relationships between individuals. Where there has been a breach of the criminal law, the state will intervene and bring a prosecution in a criminal court. If the defendant is found guilty of the crime then that defendant will be punished by the state.
Self-assessment Read pages 36–41 of Textbook of criminal law, by Glanville Williams, second edition, in your study pack and consider the following: 1. What is the difference between the two phrases: ‘wrongdoing is a sufficient condition of punishment’ and ‘wrongdoing is a necessary condition of punishment’? 2. Who said: ‘All punishment is mischief. All punishment in itself is evil. It ought only to be admitted in as far as it promises to exclude some greater evil’? 3. Which theory, according to Glanville Williams, do the courts act on in sentencing convicted offenders: the retributive or the utilitarian? Criminal law can be found in a mixture of common law and statutory sources (see your Common law reasoning and institutions subject guide). It is a complex area which is constantly developing. You must learn to adopt a critical and analytical approach to the law and be able to apply your knowledge to factual situations. In order to be able to do this, please ensure that you read the relevant chapters in this guide and the textbook, and any cases or articles to which you are referred. The more you read around the subject, the better you will understand the principles which underpin the law. Reading a judgment from the Court of Appeal, the House of Lords or the Supreme Court (which was officially opened on 1 October 2009) on any particular topic is worth the effort as it is one of the best ways of gaining an understanding of the rules as they relate to that topic. Most students find criminal law intrinsically interesting and many of you will have a general familiarity with some aspects of the subject. This familiarity is often generated by exciting journalism in the newspapers or on the television, which tends to give a misleading impression of the rules of criminal law. The headline: ‘He got away with murder because of a loophole in the law!’ does not provide any useful information about the rules of criminal law and how they were applied to the facts of that case. All it does is tell us that ‘he’ (i.e. the defendant) was found not guilty of murder; it certainly does not tell us why and it is pointless speculating as there could be any one or more of a variety of sensible legal reasons for that outcome. As stated above, although the rules of criminal procedure do not form part of this course, some basic understanding of the trial procedure will help with your understanding as a whole. Most textbooks contain a certain amount of information about the rules of procedure in their introductory chapters and it is worthwhile taking the time to read them.† Although most criminal trials begin and end in Magistrates’ courts, the cases you will be considering will usually be appeals to the Court of Appeal (Criminal Division) from the Crown Court or further appeals on points of law of general public importance from the Court of Appeal (Criminal Division) to the House of Lords before October 2009 and, after that date, to the Supreme Court. A trial in the Crown Court is held before a judge and a jury. The Crown Court tries defendants who have been charged with serious criminal offences (such as murder, manslaughter, rape, serious non-fatal offences against the person and offences against property) or with offences which are triable either way where there has been an election to the Crown Court. For more information about this, see your Common Law
†
For rules on judicial precedent see your subject guide for Common law reasoning and institutions. See also Studying law by Simon Askey and Ian McCleod.
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University of London International Programmes Reasoning and Institutions subject guide. Throughout this guide, the defendant will normally be referred to as ‘the defendant’ or ‘D’ and the prosecution as ‘the prosecution’ or ‘P’; the victim of a criminal offence may sometimes be referred to as ‘V’.
1.1.1 Burden of Proof Note that the burden of proof is on the prosecution to prove the defendant’s guilt beyond reasonable doubt. If it fails to discharge this burden in respect of any element of the offence the defendant must be acquitted. In Woolmington v DPP [1935] All ER Rep 1 Lord Sankey said:Throughout the web of English criminal law one golden thread is always to be seen – that it is the duty of the prosecution to prove the prisoner’s guilt … If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, as to [the prisoner’s guilt] the prosecution has not made out the case and the prisoner is entitled to an acquittal.
In some exceptional cases, the defendant does have the burden of proving a defence, e.g. the common law defence of insanity or a statutory defence where the statute expressly provides for this. It was held in R v Lambert, R v Ali and R v Jordan House of Lords [2001] All ER (D) 69 (Jul) that this does not breach article 6 of the European Convention on Human Rights – the right to a fair trial. It is important that you remember that the prosecution must prove every element of an offence beyond reasonable doubt. In those exceptional instances (see above) where the defendant has the burden of proving a defence he need only do so on balance of probabilities – i.e. the civil burden. At the end of a case in the Crown Court – both the prosecution and the defendant having produced their evidence – the judge will sum up to the jury. In addition to summing up on the facts and the evidence produced during the trial, the judge will direct the jury on the law as it is to be applied to the facts. The jury will then make its decision. Depending whether they find the defendant guilty or not guilty of the offence charged, the judge will pass sentence or discharge the defendant. There are rights of appeal to the Court of Appeal against conviction and sentence. The appeals we are concerned with are appeals by the defendant against conviction, where the defendant argues that the trial judge misdirected the jury on the law and that his conviction is therefore wrongful. It then falls to the Court of Appeal to determine whether or not the trial judge’s interpretation of the law was correct. If it finds that it was, then the Court of Appeal will uphold the conviction. If, however, it finds that the judge did misdirect the jury, it can quash the conviction unless it feels that the misdirection was not such as to render the conviction unsafe. Either the prosecution or the defence can appeal to the Supreme Court against the Court of Appeal’s decision on a point of law of general public importance. Of course it may well be that the trial judge in the Crown Court directed the jury on the law in such a way that they acquitted the defendant and it is the prosecution which is of the opinion that the jury was misdirected. Here the prosecution may appeal provided it gets the authorisation of the Attorney-General. On appeal the defendant will not be named in the case; the case will be known as an Attorney-General’s reference. Therefore if the case was originally called R v Jones [2006] and the appeal by the prosecution is the sixth such appeal in 2006, the case will be known as AttorneyGeneral’s Reference (No. 6) of 2006. If the Court of Appeal agrees with the prosecution that the trial judge misdirected the jury, this will not affect the defendant’s acquittal but trial judges in future will have to direct juries on that point according to the determination of the Court of Appeal. Therefore the decision of the Court of Appeal will have an impact on future cases.
Criminal law Chapter 1 Introduction
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1.1.2 Who can commit a criminal offence? Only a person who has the legal capacity to commit a criminal offence can be the subject of a conviction. So, a six month-old baby who hits a person in the eye with its rattle causing injury to that person is unlikely to be seen as having committed a ‘wrong’, even in a general sense, and will certainly not be subjected to the criminal process. What about an older child who, say, while in a sweetshop sneaks a bar of chocolate into his or her pocket and later eats it having left the shop without paying for it? An adult who did this, subject to a recognised defence, would be likely to be guilty of theft (see Chapter 16). So far as children are concerned, there is an irrebuttable presumption that a child under the age of 10 is incapable of committing a criminal offence. If, therefore, our child in the sweetshop was less than 10 years old then he or she would not have committed an offence. If he or she was aged 10 or above the position would be different. Once a child reaches the age of 10 they are deemed to be capable of committing an offence and can be subject to the criminal process (although special provisions in respect of trial and punishment apply to children). Until 1998 there was the common law doctrine, of doli incapax, which meant that there was a rebuttable presumption that a child between the ages of 10 and 14 did not have the capacity to commit a criminal offence. This doctrine, however, was abolished by the Crime and Disorder Act 1998. See R v T [2008] EWCA Crim 815 and the July 2008 newsletter on the VLE. Another example of legal incapacity is that of insanity. Where a person has been charged with an offence and can demonstrate on balance of probabilities that they were insane at the time they perpetrated the wrongdoing (i.e. the criminal offence) then the verdict will be ‘not guilty by reason of insanity’. A person found to be legally insane is deemed incapable of having committed the offence. Unlike the case of children under the age of 10, this will be tested in court and, if the prosecution proves beyond a reasonable doubt that the defendant was not insane within the strict rules which govern insanity, then the defendant, subject to any other defence, will be found guilty of the offence with which he or she has been charged. See Chapter 13.
1.2 Subject materials 1.2.1 Texts The main text for this subject is:
Wilson, W. Criminal law. (Harlow: Longman, 2011) fourth edition [ISBN 9781408279281].†
This textbook is supported by MyLawChamber – a web-based set of material including source, materials, updates, multiple choice questionnaires, sample exam questions and skeleton answers. You are also required to read a criminal law casebook of your choice. Gobert, Dine and Wilson, Cases and materials on criminal law most neatly dovetails with the textbook but there are a number of others on the market. Whichever casebook you buy, ensure it is the latest edition. Aspects of criminal law can sometimes develop rapidly and an out of date textbook or casebook can be dangerously misleading. You will find guidance in each chapter of this guide as to which sections of the textbook you should read for any particular topic. Should a new edition of the textbook be published before the publication of a new edition of this guide, then the chapter and section headings given in this guide can be used to locate the Essential readings. You will also find an up to date criminal law statute book very useful. This contains collected extracts of major legislation and, subject to the guidance in the Programme Specifications and Regulations, you will be able to take a copy into the examination. You are also required to read the study pack materials, which are available on the VLE. Again, if you follow the chapters in the guide you will be referred to materials in the study pack as and when appropriate.
†
Throughout this guide, this book will be referred to as Wilson. Often section references will be given to direct your reading. For example: ‘Wilson, Chapter 11: Section 11.4.’ Please note that all references to Wilson in this subject guide are to the fourth edition (2011).
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University of London International Programmes Some of the exercises and essential reading will require you to access materials from the Online Library so please ensure that you become familiar with the databases as soon as you can. See below for more information about using the Online Library.
Additional recommended reading In addition to the Wilson textbook and the essential reading you are referred to in this guide, you will find that the more additional reading you do, the better you will understand the subject. It really is worth taking the extra time to do this. Students sometimes find it helpful to read a chapter of a textbook other than Wilson. Different writers approach topics in different ways and this can aid your understanding of criminal law, especially if you are having difficulty with a topic. Students often find the following books to be particularly helpful.
Ormerod, D. Smith and Hogan: criminal law. (Oxford: Oxford University Press, 2011) thirteenth edition [ISBN 9780199586493].
Simester, A.P. and G.R. Sullivan Criminal law: theory and doctrine. (Oxford: Hart Publishing, 2010) fourth edition [ISBN 9781841139227].
Ashworth, A. Principles of criminal law. (Oxford: Oxford University Press, 2009) sixth edition [ISBN 9780199541973].
Clarkson C.M.V. and H. Keating Criminal law: texts and materials (London: Sweet & Maxwell, 2010) seventh edition [ISBN 9781847039187].
Herring, J. Criminal law: text, cases and materials. (Oxford: Oxford University Press, 2010) fourth edition [ISBN 9780199578115].
Please ensure that whatever text or casebook you choose that you obtain the latest edition.
1.3 Online resources In addition to the hard copy materials provided for you, we are now providing a number of online resources to further help you with your studies which you can access through the portal (https://my.londoninternational.ac.uk/) Before you start your studies, go to www.londoninternational.ac.uk/current_students/ programme_resources/laws/exercises/index.shtml and try the pre-course exercises. These exercises have been devised as a ‘taster’ to encourage you to consider the type of skills you will be expected to develop as you go through the laws programme.
1.3.1 Online Library The databases available through the Online Library contain everything you would find in a well-stocked law library and we would therefore strongly encourage you to use it regularly. You may at first find it a little daunting but you should take the time to get used to using the password protected databases as some of the activities in this guide require you to use them. Generally you can use your portal password to access these databases, but there are instructions available on the VLE about how you can access each of the databases. There are also many free databases for which you do not need a password. To help you learn your way around the Online Library, we have provided some online research exercises which you will find at www.londoninternational.ac.uk/current_ students/programme_resources/laws/research_exe/index.shtml You do not need a password to access these exercises but, as you will need to download materials from the Online Library for some of the exercises, please ensure that you have your portal password to hand. The exercises will take you through some of the databases in order to find cases and articles and feedback is provided each step of the way in case you get lost. Please note that these exercises are a compulsory component of your Common law reasoning and institutions course.
Criminal law Chapter 1 Introduction
1.3.2 Virtual Learning Environment (VLE) Criminal law has its own section of the VLE, which will be regularly updated and contains:
the complete subject guide
study pack readings
audio presentations
newsletters
recent developments updates
a direct link to the Online Library
a direct link to the University of London website
links to other useful criminal law websites
a discussion board where you can post your comments and communicate with other University of London students anywhere in the world
past examination papers and Examiners’ reports
‘Student profiles’, where you can choose to provide details about yourself and see profile information provided by other students.
Important notices and dates will also be posted to the VLE. You should check it regularly.
Computer marked assessments Once you have embarked on your studies and have covered some of the topics, you will find it useful to consolidate your learning by attempting the criminal law computer marked assessments. Each assessment is in three parts: knowledge, comprehension and application. Extensive feedback is provided for each question. You will find advice on taking these assessments on the VLE. You will also find these assessments to be a useful revision tool before you take your examinations.
Audio presentations You can also access a number of criminal law audio presentations on the VLE. These presentations introduce you to each topic covered on the syllabus and in the subject guide. There is therefore an individual presentation for each chapter of this guide. You are advised to listen to the appropriate presentation before you embark on your study of a topic. You can, of course, listen again as you go through the topic and when you have completed it as a consolidation and revision aid.
Newsletters and Recent developments As stated above criminal law is constantly developing and you are expected to be familiar with the current law up to 15 February in the year in which you take the examination. To help you to keep up to date, we provide a monthly criminal law newsletter on the VLE and in March of the year in which you will be taking your examination we bring all of the new developments together in Recent developments – also on the VLE. The monthly newsletter, however, is not limited to new developments but may also help to clarify areas of criminal law – in particular those which, in the author’s experience, some students can find especially difficult.
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1.4 The examination At the end of the course you will need to pass the examination in order to progress. Provided you have worked systematically through this guide, and completed the necessary readings and activities, you should have a good understanding of the subject. This will stand you in good stead for the criminal law examination. There are, essentially, two types of examination question – the essay question and the problem question. You will find examples of both types of question in this guide, together with specific advice on answering such questions. Further guidance and illustrations are to be found in Wilson on MyLawChamber. However, here is some general advice on how to approach the questions.
1.4.1 Essay questions Essay questions often consist of a quote on a particular issue within an area of law, followed by such words as ‘Explain and discuss’ or ‘Discuss’ or ‘To what extent do you agree?’ This type of question requires you to engage in an academic discussion focussed on the issue raised in the quote. It does not require a treatise containing everything you know about the area of law involved – you will not get many marks for that. Aim to structure your answer so that it includes the following.
An introduction Here you should define your terms and set out the ambit of your essay, stating what it is you intend to discuss.
A discussion of the issues raised by the question Consider arguments which support the issue raised as well as arguments which do not. Do not use this as an opportunity to demonstrate, at length, your personal opinions. Use cases, or commentator’s opinions, to support any propositions you make but use them carefully and thoughtfully. Your essay should not resemble a ‘shopping list’ of cases. Relate what you say to the issue raised in the question.
Conclusion Deal directly with the issue raised and conclude your discussion. It is permissible to state which of the arguments you consider to be the proper one and why. Provided your conclusion is a logical expression of some of the arguments set out in your essay it will be a valid conclusion.
1.4.2 Problem questions These are more practical and will involve you in giving ‘legal advice’ in relation to a particular set of facts. These questions require a different approach to that for essays. Frequently, a long problem can be divided into a series of smaller problems. It is important that you deal with each issue individually.
Offence You should first of all consider what possible offence(s) the facts of the question indicate in relation to the defendant(s). It is of the utmost importance that you deal with each offence/defendant individually. Do not begin your discussion of a second offence/defendant until you have completed your discussion of the first. Do not begin with a conclusion such as ‘Fred is guilty of murder’. If you consider this to be a possibility in the light of the facts disclosed in the question, then begin your answer by saying, for example, ‘Fred may be charged with murder’ or ‘I will begin by discussing Fred’s possible criminal liability for murder’. Then deal with the elements of the offence, relating your answer to the facts of the question.
Criminal law Chapter 1 Introduction Generally a definitive answer is not required for a problem question. There will usually be insufficient facts to enable you to be able to do that. So, for example, in a question where you are considering the offence of murder, the facts upon which liability will hinge may have been drafted ambiguously. Use ‘if’ and ‘then’ i.e. ‘If the jury is satisfied that the prosecution has proved beyond reasonable doubt that Fred committed the actus reus of murder with the appropriate mens rea [you will already have discussed these elements of the offence] then they may – subject to any defence he might raise – find him guilty of murder’.
Defence You should consider whether, on the facts outlined in the question, there are any defences which may be available. Do not hypothesise. If the facts do not indicate the possibility of a defence do not discuss defences. Where the facts do indicate a defence, do not begin your answer with a discussion of that defence/those defences. Discuss the offence first and only when you have completed that part of the answer should you go on to discuss any possible defence.
Summary Most students find the study of criminal law challenging and interesting. It is an intellectually demanding but very rewarding subject. This subject guide covers the law of England and Wales which may sometimes be very different from the legal system under which you live but we hope you will enjoy the challenge of this subject. Good luck with your studies.
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2
The elements of an offence
Contents Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12 2.1
General analysis of criminal offences . . . . . . . . . . . . . . . . . . . .13
2.2
Limitations on the value of the Latin terms actus reus and mens rea . . . . 14
2.3
Proof of the ingredients of an offence . . . . . . . . . . . . . . . . . . .15
2.4
Lawful excuse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16 Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18
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Introduction This chapter considers, in general terms, the elements of an offence which the prosecution must establish, beyond reasonable doubt, before a person can be convicted. Before you go any further please listen to audio presentation 2 which you can access from the criminal law page of the VLE. It is important that you do so as it will give you an overview of the topic and guidance on the terms considered in this chapter (i.e. actus reus and mens rea). You will now be aware that every offence is defined somewhere – either in a statute or at common law – and will be composed of a number of elements with which you should be familiar. Note that you should be equally familiar with the elements of each defence you consider as part of this course. The elements of an offence are the external elements (actus reus) and the internal – or mental – elements of the offence (mens rea) which are contained in the definition of that offence (which will be found either at common law or in a statute). The offence of criminal damage contrary to s.1(1) of the Criminal Damage Act 1971 is used to exemplify analysis of the actus reus and the mens rea of a criminal offence. Chapters 3 to 6 examine the general principles of actus reus and mens rea in more detail.
Essential reading and listening
Wilson, Chapter 4: ‘Actus reus’, Sections 4.1–4.4 and Chapter 6: ‘Mens rea’, Sections 6.1–6.5.
Audio presentation 2.
Learning outcomes By the end of this chapter and the relevant readings you should be able to:
find the definition of a criminal offence
demonstrate an understanding of the constituent elements of that definition, i.e. actus reus and mens rea
demonstrate an awareness of the limits of the terms actus reus and mens rea when used without further clarification.
Criminal law Chapter 2 The elements of an offence
2.1 General analysis of criminal offences Every criminal offence is made up of a number of elements, each of which must be proved beyond reasonable doubt before a defendant can be convicted of the offence with which he or she has been charged. A criminal offence might be a statutory offence, such as theft contrary to s.1 of the Theft Act 1968, or it might be an offence at common law. Most offences are now statutory but a few – including murder and manslaughter (see Chapters 7 and 8) – remain offences at common law. Traditionally criminal offences are analysed by reference to the actus reus and the mens rea. The Latin maxim actus non facit reum, nisi mens sit rea means that the act itself does not constitute guilt unless it was done with a guilty mind. Another way of saying this is that criminal liability requires BOTH wrongdoing and culpability or blameworthiness. This is, in fact, not a completely accurate description of the criminal law as many crimes do not require mens rea, i.e. blameworthiness. Where mens rea is not required liability is termed ‘strict’.
Actus reus This is the ‘external’ element of a crime – i.e. some form of measurable wrongdoing. It comprises the actor’s conduct, together with any circumstances which make that conduct wrongful, and, in the case of a result crime, the consequences.
Mens rea This is the ‘internal’ or mental element of a crime. It must be proved that at the time the defendant was responsible for the actus reus of the offence with which he is charged, he behaved with the state of mind relevant to that offence. So to be guilty of theft he must be proved to be dishonest and intend to keep the property. Where the offence is one which requires proof of mens rea, both elements (i.e. actus reus and mens rea) must be proved in order to secure a conviction. Furthermore, it must be proved that the mens rea coincided with the actus reus (see Chapter 6). Note that even if a defendant committed the actus reus of the offence with the appropriate mens rea he or she may be able to raise a defence which would negate any criminal liability.
Activity 2.1 Read Glanville Williams, Textbook of criminal law, 2nd edition pp.70–74, which you will find in your study pack and consider the following questions. (Note that the definition of rape on p.72 has changed since this book was written – see s.1 of the Sexual Offences Act 2003 – but the general point he makes remains valid.) a. Why is a driver who accidentally runs over and kills a pedestrian not guilty of murder? b. What factors would make this murder?
Self-reflection Can you think of any examples where a person’s conduct might not be considered immoral under the circumstances but it would, nevertheless, be criminal? Are there any types of conduct commonly considered to be immoral which you would like to see made criminal? Now let us look at the definitional elements of the offence of theft contrary to s.1(1) of the Theft Act 1968. Go to your statute book and find this statute. Alternatively, go to www.legislation.gov.uk/ukpga/1968/60 where you will find it. You will see that a person is guilty of theft if he ‘dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it’ (s.1(1) Theft Act 1968).
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Activity 2.2 Consider the following scenarios. Bearing in mind that every element of an offence must be proved in order to convict, do you think that the parties below are guilty of theft? Use the wording of s.1 to guide you. This exercise requires you to consider both the actus reus (Chapters 3 and 4) and the mens rea (Chapter 5) of the offence. a. Susan was in her local supermarket. After checking that nobody was looking, she picked up a bar of chocolate and ate it. b. John grabbed Ann’s purse and ran away with it intending to take the money out of it and then throw the purse away. Ann’s friend, Anton, who saw what had happened, chased after John and caught him before he could take the money. Anton returned Ann’s purse to her. c. Beth and Amy were in the library. Beth asked Amy if she could borrow her copy of Wilson for 10 minutes. Amy said ‘No’. Amy then went off for a coffee leaving her Wilson on the desk. Beth took the book, intending to return it before Amy returned. Unfortunately, before she could do so, Amy came back and was very angry with Beth for taking her book. d. John took an umbrella believing it to belong to Fred. Unknown to John it was his own umbrella.
Activity 2.3 a. Find the definitions of the following offences:† i. Murder
†
Use the index and the list of statutes in Wilson.
ii. Wounding with intent to cause grievous bodily harm iii. Robbery iv. Fraud. b. What are the actus reus and mens rea of each of these offences? Tip. The mens rea is what is left over when you have subtracted the actus reus from the definition. There is no feedback for this activity.
2.2 Limitations on the value of the Latin terms actus reus and mens rea A word of warning. The terms ‘actus reus’ and ‘mens rea’ are terms of art† which, when used on their own and without explanation, provide no sensible information. Similarly if, having considered a scenario in which, say, A shot B killing him, you simply said, ‘The actus reus is established’, a reasonable response might be: ‘The actus reus of what offence?’ You might then respond: ‘The actus reus of murder.’ Although this may be correct it is still less than informative as you have not explained what the ingredients of the actus reus of murder are and why the facts indicate that it was made out. Therefore it would be correct to say that, in order to establish the actus reus of murder, the prosecution must prove that A unlawfully killed a human being (murder is considered in Chapters 7 and 8). Nevertheless, these are the conventional terms which will be used in all the criminal law materials you are likely to read – including this subject guide. When you use these terms ensure that you use them appropriately.
Self-reflection Return to Activity 2.3 and look again at the actus reus and mens rea for theft and each offence listed. Now compare them and you will see, on the whole, how different they are. (It might help to write them down.) For example, the actus reus of theft is entirely different from the actus reus of murder. In addition, although
†
A ‘term of art’ is a technical term which has a special significance.
Criminal law Chapter 2 The elements of an offence
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the mens rea for each of these offences is expressed as ‘intention’, you can see that proof of an intention to achieve entirely different results is required depending upon which offence is charged. Always express this in any answer you give to activities or questions in the examination. You might also have noted that, where the mens rea for murder is intention to kill or cause grievous bodily harm, the mens rea requirement for the offence contrary to s.18 of the Offences Against the Person Act is intention to cause grievous bodily harm. It follows from this that, if a person attacks another causing them grievous bodily harm, having intended to do so, they will be guilty of the s.18 offence. If, however, the victim of the attack dies the attacker will be guilty of murder – subject to any defences he or she may have. For most of the offences we will be dealing with in this subject guide, it will be necessary for the prosecution to prove both the actus reus and the mens rea of the particular offence. However, for some offences liability is strict. This means that neither the definition of the offence imports a requirement of mens rea as to at least one of the elements of the actus reus, nor has the offence been interpreted by the courts as requiring proof of mens rea in respect of that element. See Chapter 6.
Activity 2.4 a. Where are the definitions of offences to be found? b. What is meant by the Latin maxim actus non facit reum, nisi mens sit rea? c. Read Sections 4.1–4.2 in Chapter 4 and Section 14.2 in Chapter 14 of Wilson. What are the conduct and circumstances elements of the actus reus of the offence of theft? d. What is the consequences element of the actus reus of the offence of murder? e. Read the article by Nigel Hanson in your study pack. Why did David Ibbetson, Professor of Civil Law at Cambridge University, have reservations about modernising legal language?
2.3 Proof of the ingredients of an offence The burden is on the prosecution to prove beyond reasonable doubt all of the elements of an offence with which a defendant is charged (see Woolmington v DPP [1935] AC 462). It follows therefore that, whether the offence is one of strict liability or one which requires proof of mens rea, if all of the elements of the actus reus cannot be proved the defendant cannot be criminally liable, however guilty his mind is.†
Activity 2.5
†
Mens rea and strict liability offences are considered in Chapter 5.
Read Section 4.3 in Chapter 4 of Wilson.
Can Dadson (1850) 2 Den 35 be reconciled with Case 6?
There is no feedback for this activity as the answers are to be found within the passage in Wilson. Now let us consider s.1(1) of the Criminal Damage Act 1971, which defines the offence of criminal damage as occurring where a person: … without lawful excuse destroys or damages any property belonging to another intending to destroy or damage such property or being reckless as to whether any such property would be destroyed or damaged…
It will be clear that the actus reus of this offence (i.e. the external element of the offence) will be established where a person ‘destroys or damages any property belonging to another’.† If we analyse this external element further it will also be clear that the ‘conduct’ element of the actus reus of criminal damage is any conduct which results in the damage to or destruction of the property and this would include an omission to act (see Chapter 3).
†
As to whether the requirement ‘without lawful excuse’ is an element of the offence or a defence is discussed below.
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University of London International Programmes The ‘circumstances’ element of the actus reus of criminal damage will be satisfied by proof that what was destroyed or damaged was property which belonged to another and that the damage or destruction was effected without a lawful excuse. Criminal damage is a result crime and the ‘consequences’ element of the actus reus of this offence will be satisfied by proof that the destruction of or damage to the property was caused by D’s conduct. If all of these elements are proved by the prosecution (i.e. the jury is satisfied beyond reasonable doubt), then the actus reus of criminal damage is established. However, although proof of actus reus is a necessary precondition of conviction, where the offence is one which requires proof of mens rea – as is criminal damage – proof of actus reus alone is not sufficient to convict a defendant. The prosecution also needs to establish that the defendant committed the actus reus of the offence with the appropriate mens rea. If you return to the definition above you will see that the mens rea is expressed as an intention to destroy or damage property or being reckless as to whether any such property would be destroyed or damaged. Therefore the prosecution would need to prove that the defendant either intentionally or recklessly destroyed or damaged property belonging to another. The meaning of the terms intention and recklessness are considered in Chapter 5 of this guide
Activity 2.6 a. What mens rea needs to be proved on the part of a defendant who has been charged with criminal damage contrary to s.1(1) of the Criminal Damage Act 1971? b. What is the conduct element of the offence of criminal damage contrary to s.1(1) of the Criminal Damage Act 1971?
2.4 Lawful excuse Before leaving the offence of criminal damage, the element ‘without lawful excuse’ needs clarification. Although it could be expressed as an element of the actus reus of the offence, it could also be said that if the defendant knew he had a lawful excuse then he or she neither intended nor was reckless as to causing criminal damage. It follows that, under these circumstances, the defendant would not have the mens rea for the offence. Similarly, even if the defendant did not have a lawful excuse, but honestly believed that he did, then that mistaken belief would negate any criminal liability. See Chapters 11–12. Consider now the situation where the defendant did have a lawful excuse but, at the time he destroyed or damaged the property belonging to another, was not aware of this fact. Imagine that the defendant is lawfully in possession of an item of property which belongs to V and the defendant deliberately destroys that property. If you consider the definition above it will be clear that D is guilty of criminal damage. The actus reus and mens rea are established. Now imagine that, before the defendant destroyed the property, V had emailed him instructing him to destroy it. The email has reached D’s mailbox but D has not checked his emails and therefore does not know of V’s instruction. Is D guilty of criminal damage? If, as stated above, without lawful excuse is an element of the offence of criminal damage, it could be argued that as D has – albeit unknown to him – a lawful excuse, he cannot be guilty of this offence. In order to convict D the prosecution must prove all of the elements of the offence with which D is charged (see Deller (1952)). However, it could be argued that rather than being an element of the offence itself, a lawful excuse is, in fact, a defence. If this is the case, then on the basis of the decision in the case of Dadson (1850) 2 Den 35, D may be found guilty of criminal damage. Which outcome do you prefer?
Criminal law Chapter 2 The elements of an offence
Activity 2.7 Online research Find the definition of the offence of robbery contrary to s.8 of the Theft Act 1968 using Westlaw. You can access this by logging on to the student portal and then going to the databases in the Online Library.
Summary Every ingredient of an offence must be proved before a defendant may be found guilty of that offence. This is subject to the defendant having a lawful excuse for his or her conduct. Please note that you will always find the elements of an offence in its definition.
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Reflect and review Look through the points listed below: Are you ready to move on to the next chapter? Ready to move on = I am satisfied that I have sufficient understanding of the principles outlined in this chapter to enable me to go on to the next chapter. Need to revise first = There are one or two areas I am unsure about and need to revise before I go on to the next chapter. Need to study again = I found many or all of the principles outlined in this chapter very difficult and need to go over them again before I move on. Tick a box for each topic. Ready to move on
Need to revise first
Need to study again
I can demonstrate an understanding of the constituent elements of that definition, i.e. actus reus and mens rea.
I can find the definition of a criminal offence.
I can demonstrate an awareness of the limits of the terms ‘actus reus’ and ‘mens rea’ when used without further clarification.
If you ticked ‘need to revise first’, which sections of the chapter are you going to revise? Must revise
Revision done
2.1 General analysis of criminal offences
2.2 Limitations on the value of the Latin terms actus reus and mens rea
2.3 Proof of the ingredients of an offence
2.4 Lawful excuse
Before you continue to the next topic listen again to audio presentation 2 to recap and consolidate what you have learnt.
3
Actus reus: the conduct element
Contents Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20 3.1
Voluntariness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21
3.2
Omissions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21
3.3
Imposition of liability for an omission to act . . . . . . . . . . . . . . . .22
3.4
Duty to act under the common law . . . . . . . . . . . . . . . . . . . .24
3.5
Distinguishing between act and omission . . . . . . . . . . . . . . . . .26
3.6
New categories of duty. . . . . . . . . . . . . . . . . . . . . . . . . . .27
3.7
The ‘circumstances’ element of the actus reus . . . . . . . . . . . . . . . 28 Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30
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Introduction The actus reus of any offence will be found in the definition of that offence. It will include:
wrongful conduct on the part of the defendant. This may be an act or an omission where the defendant is under a duty to act. In either case, to constitute wrongful conduct the act or omission must be voluntary.
the existence of one or more specified circumstances
in the case of a result crime, a particular consequence caused by D’s conduct.
This chapter will examine, in outline, what the criminal law understands by voluntary conduct and, in detail, the scope of liability for omissions. Chapter 4/5 will deal with causation in relation to the consequences element of the actus reus of result crimes.
Essential reading and listening
Wilson, Chapter 4: ‘Actus reus’, Section 4.5 ‘Exceptions to the act requirement’, Part C ‘Omissions’.
Audio presentation 4. Listen to this before you go any further with this topic.
Lane LJ’s judgment in R v Stone and Dobinson [1977] 1 QB 345. (Included in your study pack.)
Learning outcomes By the end of this chapter and the relevant readings you should be able to:
explain what is meant by voluntary conduct
explain the distinction between an act and an omission
assess whether an offence is capable of being committed by omission
understand the notion of a duty to act and under what circumstances such a duty is likely to be imposed
identify the circumstances under which a duty to act might change or cease
recognise the circumstances element of the actus reus of an offence
be able to identify when a state of affairs might amount to the actus reus of an offence.
Criminal law Chapter 3 Actus reus: the conduct element
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3.1 Voluntariness Although the conduct element of the actus reus of an offence usually requires proof of a positive act on the part of the defendant, some offences can be committed by an omission to act. Whether the prohibited conduct is an act or an omission, such conduct must be voluntary conduct on the part of the defendant. In the case of Woolmington v DPP [1935] AC 462 Viscount Sankey ruled that, subject to limited exceptions, the burden was on the prosecution to prove the defendant’s guilt beyond reasonable doubt. One of the points he emphasised in relation to the defendant’s conduct was that: ‘The requirement that it should be a voluntary act is essential… in every criminal case’. Some years later, in the case of Bratty v Attorney General for Northern Ireland [1961] 3 All ER 523 HL, Lord Denning said: No act is punishable if it is done involuntarily: and an involuntary act in this context… means an act which is done by the muscles without any control by the mind such as a spasm, a reflex action or a convulsion; or an act done by a person who is not conscious of what he is doing such as an act done whilst suffering from concussion or whilst sleepwalking…
It follows, therefore, that in order to attract criminal liability a defendant’s conduct must be voluntary – that is, it must be a willed bodily movement (or lack of action where D is under a duty to act). For example, if D does not control his car and it hits something causing damage, he will not be criminally liable if the reason he could not control the car was because, for example, he was being attacked by a swarm of bees. Brake failure through no fault of the defendant would equally give the driver no control over the situation (see Burns v Bidder [1967] 2 QB 227). Similarly, if the same thing happened because he had a heart attack or epileptic fit, his conduct is involuntary. Where a defendant has no control over what he is doing he is said to be acting in a state of automatism which, like insanity its close cousin, is a defence to criminal liability. Automatism and insanity will be looked at in detail in Chapter 12.
3.2 Omissions The conduct element of the actus reus usually requires proof of a positive act on the part of the defendant. Although it could be said that we owe negative duties to others – such as not to kill them, not to injure them and not to steal from them – there is no general liability for failure to act under the common law of England and Wales. A stranger, for example, would not incur criminal liability for watching somebody drown in a swimming pool even if that person could have been saved with very little effort on the stranger’s part. The stranger would, however, incur criminal liability if he or she carried out a positive act, such as holding the other’s head under the water, which caused or contributed to the death. Either way, the victim has died, but in the situation where the stranger merely watched the victim drown without doing anything, the victim would have died in any event, whether or not the stranger had been there.†
Self-reflection Consider the example of the stranger (above). Do you think a general duty to act should be imposed under English law? Do you think the position would be different had it not been the stranger watching but:
a lifeguard
the victim’s
†
Although some jurisdictions have adopted a general principle of liability for failure to act – e.g. France – many, including England and Wales, have not done so.
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brother
aunt
father
schoolteacher
flatmate.
3.3 Imposition of liability for an omission to act A crime can be committed by omission, but there can be no omission in law in the absence of a duty to act. The reason is obvious. If there is an act, someone acts; but if there is an omission, everyone (in a sense) omits. We omit to do everything in the world that is not done. Only those of us omit in law who are under a duty to act (Glanville Williams, Textbook of criminal law, pp.148–149.)
There are circumstances where the law does impose on a person a duty to act. Sometimes a statute will specifically state that the actus reus of an offence is committed by omission, for example, by virtue of s.1(1) of the Children and Young Persons Act 1933 it is an offence to wilfully neglect a child. This is an offence of ‘mere omission’. Offences of ‘mere’ omission are rarely found at common law. Sometimes the courts will determine that a particular offence may be committed by omission even though the definition of that offence does not specifically provide for this – for example murder. See Gibbins and Proctor [1918] 13 CAR 134.
Self-reflection What might be the arguments in favour of imposing a general legal obligation to go to the assistance of someone who is in the process of committing or has attempted to commit suicide? Should the parents of an adult child attract criminal liability if they observe (without assisting) their child committing suicide? Can you think of any arguments against imposing such a general obligation? Where a statute specifically provides that an actus reus is committed by omission it will be clear that a duty to act has been imposed on a particular class of person. The scope of any such duty will also be clear. Where the offence is not one satisfied by proof merely of prohibited conduct on the part of the defendant, but is a result crime – an offence such as murder or manslaughter which requires proof of a consequence arising from the defendant’s conduct – it will fall to the court to determine whether a defendant’s inaction might result in criminal liability. Where an offence is capable of being committed by omission it will need to be determined whether the defendant was under a duty to act and is therefore liable for failing to do so. Where it is found by the court that a defendant was under a duty to act in a particular situation and has unreasonably failed to do so, the burden remains on the prosecution to prove all the other ingredients of the offence (i.e. any remaining elements of the actus reus and the mens rea required for the particular offence with which the defendant has been charged). So, if the court finds that A was under a duty to B, if A has allowed B to die and has been charged with murder or manslaughter, it will still need to be proved that A’s conduct was unlawful and that it caused B’s death. The relevant mens rea for the particular offence will also need to be established.
3.3.1 Is the offence capable of being committed by omission? Essential reading
Wilson, Chapter 4: ‘Actus reus’, Section 4.5 ‘Exceptions to the act requirement’, Part C.3 ‘Omissions: the common approach’.
Criminal law Chapter 3 Actus reus: the conduct element The rule of thumb is that any offence can be committed by omission, unless the definition of the offence excludes this possibility. Offences which have been interpreted by the courts as capable of being committed by omission include murder (Gibbins and Proctor [1918] (above)) and gross negligence manslaughter. Most of the cases referred to below are manslaughter cases. Murder and manslaughter are common law offences. Offences which cannot be committed include unlawful act manslaughter: Lowe [1973] QB 702 and assault. See also the case of Santana-Bermudez [2004] in which the defendant was convicted of an assault.
Activity 3.1 Read Wilson, Chapter 11: ‘Non-fatal offences’, Section 3 ‘Offences protecting personal autonomy’, Part A.2 ‘Battery’. If assault cannot be committed by omission why then was the defendant in Santa-Bermudes convicted?
Activity 3.2 Can the word ‘acts’ in a statute be construed as being satisfied by an omission? See Ahmad [1986] Crim LR 739 and the discussion in Wilson, Chapter 4: Section 4.5 ‘Exceptions to the act requirement’, Part C.3 ‘Omissions: the common law approach’.
3.3.2 Was the defendant under a duty to act? Once it has been established that the offence is capable of being committed by omission, the court must determine whether the defendant was under a duty to act. The duty, where it exists, is not an onerous one. A person is not expected to put his or her own life at risk. Rather the question that will be considered by the courts is whether a defendant who was under a duty to act has discharged that duty to a reasonable standard. What is reasonable will depend upon the circumstances in each case. For example, whereas a stranger may, without doing anything to help, watch with interest a person drowning in a lake, a lifeguard who has been appointed to ensure the safety of people at, for example, the seaside or in a swimming pool will be under a duty to act. Although the lifeguard must discharge any such duty to a reasonable standard, he will not be expected to put his own life in danger. He would merely be expected to do that which a reasonable lifeguard would do. If there was any particular danger to him – e.g. a shark swimming in the sea – he would discharge his duty by obtaining proper assistance. He would not be expected to swim into the zone of danger or put his own life and safety at risk in any other way. Nonetheless, the lifeguard must discharge his duty to a reasonable standard. What he did or did not do in attempting to discharge that duty will be judged according to how the court considers a reasonable lifeguard would have acted under the particular circumstances. It is thus an ‘objective’ test. Therefore even if a defendant thought he was doing his best, if that ‘best’ was an ‘incompetent best’ it is unlikely to have been sufficient to discharge his duty. See Stone and Dobinson in 3.4 below. Most people, of course, will act over and above any duty the law may have imposed upon them and many will act when they are under no legal duty at all. It is difficult, for example, to imagine a passer-by who sees a person drowning or witnesses an accident not even bothering to call one of the rescue services. It should be remembered, however, that they are under no duty to do so and if they do not do anything they will not attract any criminal liability. There is a difference, however, between what we might term ‘moral’ duty to act and a ‘legal’ duty to act. No legal sanction is imposed for breach of a moral duty – although there may be social opprobrium. However many legal duties could be said to have arisen from moral ones. As Lord Coleridge CJ said in the case of Instan [1893]:
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Self-reflection It is an offence under the law of England and Wales not to wear a seat belt when travelling in a motor car. Can this duty be said to have arisen from any moral obligations? The issue for the courts in developing the law and the legislature in enacting law is: when should a legal duty to act be imposed and what should be the scope of any such duty? The boundaries are very unclear. Although a parent is under a legal duty towards his or her child, should a legal duty be imposed on someone in respect of their brother or sister? Their neighbour? Or perhaps someone to whom they have supplied illicit drugs, as in Evans (2009) and Khan and Khan (see section 3.6 below)? Are you under a duty towards your friend? It is likely to depend upon the situation. What might be the scope of any such duty which may exist? In Lewin v CPS [2002] EWHC Crim 1049 a decision by the Crown Prosecution Service not to prosecute was upheld. In this case the defendant, at the end of a car journey in Spain with his friend, left his friend (who was intoxicated) asleep in the car. It was summer and the weather was hot. His friend died. The court held that the defendant was only responsible for the welfare of his passenger whilst the car was in motion. His duty towards his friend did not continue because the risk of death was not reasonably foreseeable. In other words the court considered that the reasonable man would not have foreseen that occurrence under those particular circumstances. In determining in any case whether a legal duty exists, the courts consider such factors as the relationship between the parties, whether there was a voluntary undertaking or a contractual duty to act, or whether the defendant actually created the situation which gave rise to a danger where it would have been reasonable for him to do something to rectify it. This is not an exhaustive list of factors: the categories of situation where the courts will recognise a duty are not closed (see Khan and Khan in section 3.6 below). The scope of a person’s duty to act will be determined by the circumstances and may change. For example, a parent’s duty to his young baby will be different to that of a parent to an older or adult child. Depending upon the circumstances, there may be no duty at all towards an adult child. Although you may find the law in this regard to be somewhat vague, you will also find that if you give careful consideration to the reasoning of the judges in the various cases (some of which are considered below) where a duty to act has been imposed, you will be in a better position to predict the likely outcome in a novel situation that might, for example, arise in an examination question.
Self-reflection Would you be in favour of the imposition of a general legal duty to act? What, at this stage, do you think might be the advantages and disadvantages of this? Do you agree with the decision in Lewin that the driver owes no duty to his passenger to ensure his continued safety after he had completed the journey?
3.4 Duty to act under the common law In addition to those offences where a duty to act is expressed in the definition, there are situations where it has been established by the courts that a defendant will be under a duty to act. By completing Activity 3.3 below you will become aware of these situations.
Criminal law Chapter 3 Actus reus: the conduct element
Activity 3.3 Read the following cases:
Pittwood (1902) 19 TLR 37
Miller [1983] 2 AC 161 HL
Gibbins and Proctor [1918] (see also Instan [1893])
Stone and Dobinson [1977] 1 QB 345.
Now answer the following questions 1. Can a contractual duty towards one person give rise to a duty to act towards another or others? 2. What was decided in the case of Miller [1983]? 3. Can a duty to act arise out of a relationship? 4. Can a person, not otherwise under a duty to act, voluntarily assume such a duty for the purposes of the criminal law?
Activity 3.4 Read Lane LJ’s judgment in Stone and Dobinson which you will find in your study pack and answer the following questions. a. What had Dr Usher said was the likelihood of Fanny’s survival had she been admitted to hospital two weeks before he examined her body? b. What did the Crown allege in respect of the appellants’ (i.e. Mr Stone and Mrs Dobinson) responsibility for Fanny’s death? c. Lane LJ said that there was ‘no dispute, broadly speaking, as to matters on which the jury must be satisfied before they can convict of manslaughter in circumstances such as the present’. What did he say were those matters? d. What was the first ground of appeal made by counsel for the appellants? e. Did the court accept or reject that proposition? What were its reasons? f.
Lane LJ considered that the trial judge’s direction to the jury was wholly in accord with the principles outlined in Bateman. What was the one criticism he thought might be made in respect of that direction?
g. Did the appellants succeed or fail with their appeal against conviction for manslaughter?
Self-reflection Could Stone and Dobinson be said to have caused Fanny’s death? Would she have died anyway?
Reminder of learning outcomes By this stage you should be able to:
make an assessment as to whether an offence is capable of being committed by omission
understand the notion of a duty to act and under what circumstances such a duty is likely to be imposed.
Summary The conduct element of the actus reus usually requires proof of a positive act on the part of the defendant. Although it could be said that we owe negative duties to others such as not to kill them, not to injure them and not to steal from them, there is no general liability for failure to act under the common law of England and Wales. You will have seen that there are situations where the law imposes a duty to act on a person that will result in criminal liability for an omission to act or a failure to act to a reasonable standard. You will see as you continue reading this chapter that the
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3.5 Distinguishing between act and omission Essential reading
Wilson, Chapter 4: ‘Actus reus’, Section 4.5 ‘Exceptions to the act requirement’, Part C.2 ‘Acts and omissions: what’s the difference?’.
Andrew Ashworth, in his article ‘The scope of criminal liability for omissions’, Law Quarterly Review 1992 108 (Jan) comments: Whether we term certain events ‘acts’ or ‘omissions’ may be both flexible in practice and virtually insoluble in theory: for example, does a hospital nurse who decides not to replace an empty bag for a drip feed make an omission, whilst a nurse who switches off a ventilator commits an act? It would seem wrong that criminal liability or non-liability should turn on such fine points, which seem incapable of reflecting any substantial moral distinctions in a context where the preservation of life is generally paramount.
Although the distinction between an act and an omission is generally self-evident – e.g. doing nothing while somebody drowns as opposed to holding that person’s head under the water so that they drown – the House of Lords in Airdale NHS Trust v Bland [1993] ruled the removal of a nasogastric tube (used to provide nutrition and hydration to a comatose patient) to be an omission rather than an act, artificial nutrition and hydration having been classified as medical treatment. This case was distinguished by the Court of Appeal in Re: A (Conjoined twins: Surgical separation) [2001], the court holding that surgery to separate the twins was an act. Although not apparently so at first glance, this case is in one sense analogous with Bland. This is because in A the separation of the twins would result in the removal of the blood supply to the weaker twin causing her death and in Bland the removal of the nasogastric tube resulted in the withdrawal of nutrition and hydration causing his death. The trial judge in A considered that the reasoning in Bland could be applied to A but the Court of Appeal did not agree. The blood supply received by the weaker twin was not medical treatment: the operation to separate them would be a positive act. Although the Court of Appeal agreed that the surgery could go ahead without legal consequences for the doctors it was on different grounds. See Chapter 6. The problems associated with distinguishing between acts and omissions are more likely to arise in the area of medical treatment than under any other circumstances. This is because decisions sometimes have to be made as to whether to end a course of treatment which is perceived to have become futile, in order to allow the patient to die, as happened in Bland (above). In NHS Trust A v M, NHS Trust B v H [2001] it was held that the withdrawal of artificial nutrition and hydration from a patient in a persistent vegetative state would not breach Article 2 of the European Convention on Human Rights. Similar problems have arisen with handicapped neonates† as in Arthur [1981] and Re B (a minor) [1981] – and see also R (Burke) v GMC 2004 EWHC 1879 (Admin).
Self-reflection Read Article 2 of the European Convention on Human Rights in your study pack. Do you agree that the decision in Bland (1993) does not contravene this Article? Where a patient is competent and refuses treatment, that refusal must be honoured. To treat a person against their wishes – no matter how benevolent the motive – would amount to an assault or worse. In Ms B v An NHS Hospital [2002] Ms B sought and obtained a declaration from the court that the refusal of her doctors to disconnect the life support machine to which she was connected and from which she wished to be disconnected and allowed to die was an unlawful trespass (assault and/or battery). Note, however, that a doctor who performs a positive act to end a patient’s life will be guilty of murder even where the patient has requested this. In R v Cox [1992] Dr Cox’s patient was dying. With her family’s approval she begged Dr Cox to give her a
†
Neonate: a baby from birth to four weeks of age.
Criminal law Chapter 3 Actus reus: the conduct element lethal injection, which he did. He was convicted of attempted murder. He could not be convicted of murder because before his conduct came to light the patient had been cremated and it could therefore not be proved that there was a causal link between his conduct and her death. As she was dying anyway, it was just possible that it was her illness which actually killed her. Causation is discussed in Chapter 5. Another issue which has fallen to be considered by the courts is under what circumstances, if any, can an existing duty to act be said to have ceased? Take doctors, for example. It has long been established that a doctor owes a duty to his or her patient. If a doctor does not act to a reasonable standard and the result of that breach of duty is that the patient suffers injury or death then the doctor might be criminally liable, provided of course the other elements of the offence are established (see Adomako [1995]). This duty necessarily only exists in the context of the doctor-patient relationship. Its scope is therefore limited and will depend upon the circumstances of each individual case.
Activity 3.5 Under what circumstances might an existing duty to act cease to operate?
3.6 New categories of duty The list of situations recognised by the courts giving rise to a duty to act is not a closed one and it may be that as situations arise the courts will recognise new categories. In Khan and Khan [1998] two drug dealers supplied heroin to the victim. Having ingested the drug she fell into a coma, the defendants failed to obtain medical assistance and she died. They were convicted of manslaughter and appealed to the Court of Appeal where their convictions were quashed. Swinton LJ commented: To extend the duty to summon medical assistance to a drug dealer who supplies heroin to a person who subsequently dies on the facts of this case would undoubtedly enlarge the class of persons to whom on previous authority, such a duty may be owed. It may be correct to hold that such a duty does arise… Unfortunately, the question as to the existence or otherwise of [any such] duty… was not… at any time considered by the judge and the jury was given no direction in relation to it.
In Singh (Gurphal) [1999] the Court of Appeal held that the question as to whether a situation gave rise to a duty to act was one of law for the judge to determine. Following these two cases it was unclear whether the position was that the issue of whether there was a duty was to be left to the jury, the judge having ruled that there was evidence capable of establishing that there was such a duty (Khan) or whether it was purely a question of law to be determined by the judge (Singh). In Willoughby [2004] Rose LJ confirmed that, although there may be special cases where a duty obviously exists (such as that between doctor and patient) and where the judge may direct the jury accordingly, the question whether a duty was owed by the defendant to the deceased will usually be a matter for the jury provided there is evidence capable of establishing a duty in law. In R v Evans (Gemma) [2009] EWCA Crim 650 the appellant obtained heroin and gave some to her sister who self-administered the drug. The appellant was concerned that her sister had overdosed so decided to spend the night with her but did not try to obtain medical assistance as she was worried she would get into trouble. When she woke up she discovered that her sister was dead. She was convicted of manslaughter and appealed. Her grounds of appeal were that the judge had been wrong to find that she was capable, having supplied the heroin to her sister, of owing her a duty of care and that this was consistent with the authorities and that it was open to the jury to consider whether she owed a duty of care on the basis that she had supplied the heroin. In addition, she argued that the judge had been wrong in leaving it to the jury to decide whether to extend the category of persons by whom and to whom a duty might be owed.
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University of London International Programmes The Court of Appeal dismissed her appeal. For the purposes of gross negligence manslaughter, when a person had created or contributed to the creation of a state of affairs that he knew, or ought reasonably to have known, had become life threatening then, normally, a duty to act by taking reasonable steps to save the other’s life would arise. Although the trial judge’s directions about the ingredients of gross negligence manslaughter had been correct, he had misdirected the jury in respect of the question as to whether the defendant had owed a duty of care to her sister should have been left to the jury to decide. The question of whether a duty of care existed was a question of law for the judge, not the jury and Willoughby (2004) did not relegate the duty question to one of fact. It remained a question of law. Nonetheless, the judge was not to be criticised for this as he was following Willoughby as it had been commonly understood. The jury had been sure, both in law and in fact and, accordingly the defendant’s conviction was safe.
Self-reflection Do you think that the Court of Appeal decision in Evans [2009] would have been the same if all of the facts had been the same but, instead of the defendant having given her sister heroin, she had given her a prescription painkiller, such as morphine, which had prescribed for D?
Activity 3.6 a. John, who does not like doctors but instead believes in the power of prayer and natural healing, goes to stay with his friend Luke. Luke is not very clean and always forgets to throw old food away. John eats a piece of cooked meat which he finds in the kitchen, not realising it has gone mouldy. He contracts food poisoning and begins to feel very ill. Luke wishes to call a doctor but John refuses to allow it. Eventually, John falls into a coma. Luke waits for a day hoping John will wake up but he does not. Eventually Luke calls for an ambulance but it is too late. John dies on the way to hospital. Luke has been charged with manslaughter. i. What factors will the court take into account when determining whether Luke was under a duty to act? ii. If it was decided that he was under a duty to act, what factors would the court take into account in determining whether or not he was in breach of that duty? b. Susan is a doctor. One day on her way to work she comes upon the aftermath of a road accident. Jane is lying at the side of the road, badly injured. The ambulance has not yet arrived. Susan is late for work so she rushes on. Jane dies but would have survived had she received earlier medical treatment. i. Was Susan under a duty to act? ii. Might your answer differ if Jane was a patient of Susan? iii. Might your answer differ if Susan had taken Jane’s pulse before moving off?
3.7 The ‘circumstances’ element of the actus reus Essential reading
Wilson, Chapter 4: ‘Actus reus’, Section 4.2 ‘Elements of liability’.
Many crimes require the existence of a specified circumstance or specified circumstances as part of the actus reus. For example, the circumstances element of the actus reus of the offence of criminal damage contrary to s.1(1) of the Criminal Damage Act 1971 is that what is destroyed or damaged must be ‘property belonging to another’.
Activity 3.7 Find the definitions of the following offences. What is the ‘circumstances’ element of the actus reus of each of these offences? a. Theft contrary to s.1(1) of the Theft Act 1968.
Criminal law Chapter 3 Actus reus: the conduct element b. Criminal damage contrary to s.1(1) of the Criminal Damage Act 1971. c. Rape contrary to s.1(1) of the Sexual Offences Act 2003. d. The common law offence of murder. e. Bigamy contrary to s.57 of the Offences Against the Person Act 1861.
State of affairs as an actus reus Occasionally the actus reus of an offence is the state of affairs rather than the conduct of the defendant. These offences are called ‘state of affairs’ or ‘situational’ crimes and, arguably, can result in strange and unfair results.
Activity 3.8 Read Wilson, Chapter 4: ‘Actus reus’, Section 4.5 ‘Exceptions to the act requirement’. What was decided in the cases of Larsonneur (1933) 24 Cr App R 74 and Winzar v Chief Constable of Kent (1983) The Times, 28 March?
Self-reflection What do you think about the decisions in these cases? Was either of the parties to blame for the circumstances in which they were ‘found’?
Summary The conduct element of the actus reus of an offence can include an act, an omission or a state of affairs. In the overwhelming majority of cases it will be the defendant’s act which satisfies the conduct element of the actus reus. Occasionally, however, it falls to be decided whether a defendant’s omission to act will satisfy the conduct element of the actus reus. In this regard, it must be determined first of all whether or not the particular offence is capable of being committed by omission. If that is the case, the next issue to be determined is whether the defendant was under a duty to act. There are a number of circumstances where it has been established that a duty to act will lie, but note that the category of duty is not closed. Note also that if the defendant was not under such a duty there can be no criminal liability. Very occasionally, a state of affairs might result in a defendant being found guilty of a criminal offence. These offences are sometimes known as ‘situational offences’ and tend to be treated with great caution by the courts, although there are exceptions such as those outlined above. Many offences require the existence of certain specified circumstances and you will find the relevant circumstances in the definition of the offence you are considering.
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Reflect and review Look through the points listed below: Are you ready to move on to the next chapter? Ready to move on = I am satisfied that I have sufficient understanding of the principles outlined in this chapter to enable me to go on to the next chapter. Need to revise first = There are one or two areas I am unsure about and need to revise before I go on to the next chapter. Need to study again = I found many or all of the principles outlined in this chapter very difficult and need to go over them again before I move on. Tick a box for each topic. Ready to move on
Need to revise first
Need to study again
I can explain the distinction between an act and an omission.
I can assess whether an offence is capable of being committed by omission.
I understand the notion of a duty to act and under what circumstances such a duty is likely to be imposed.
I can identify the circumstances under which a duty to act might change or cease.
I recognise the circumstances element of the actus reus of an offence.
I can identify state of affairs as actus reus.
If you ticked ‘need to revise first’, which sections of the chapter are you going to revise? Must revise
Revision done
3.1 Voluntariness
3.2 Omissions
3.3 Imposition of liability for an omission to act
3.4 Duty to act under the common law
3.5 Distinguishing between act and omission
3.6 New categories of duty
3.7 The ‘circumstances’ element of the actus reus
Before you continue to the next topic listen again to audio presentation 4 to recap and consolidate what you have learnt.
4
Actus reus: consequences
Contents Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .32 4.1
Causation and liability . . . . . . . . . . . . . . . . . . . . . . . . . . .33
4.2
Factual causation . . . . . . . . . . . . . . . . . . . . . . . . . . . . .34
4.3
Legal causation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .36
4.4
Intervening causes . . . . . . . . . . . . . . . . . . . . . . . . . . . . .38 Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . .43
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Introduction You will recall that there are some crimes – called ‘result’ crimes – where the definition of the actus reus requires the prosecution to prove that the defendant’s conduct caused a prohibited result, or consequence. Result crimes, therefore, require proof of causation as one of the elements of the actus reus of the offence charged. Causation is an important aspect of the actus reus of all result crimes but the issue arises mainly in cases of homicide. Where causation is in issue, the prosecution must prove that the defendant’s conduct was both the factual cause and the legal cause of the result. Ultimately, the decision as to whether the defendant’s conduct caused the result is one for the jury but in determining this issue the jury must apply the legal principles which will have been explained to them by the trial judge (Pagett [1983]).
Essential reading and listening
Wilson, Chapter 5: ‘Causation’.
Audio presentation 5.
Extract from Textbook of criminal law by Glanville Williams, pp.381–82. (Included in your study pack.)
Stannard, J.E. ‘Criminal causation and the careless doctor’ (1992) MLR 55 4. (Included in your study pack.)
Cases
Blaue [1975] 1 WLR 1411; Pagett [1983] 76 Cr App R 279; Smith [1959] 2 QB 35; Cheshire [1991] 3 All ER 670 and other cases referred to throughout this chapter.
Learning outcomes By the end of this chapter and the relevant readings you should be able to:
identify when the issue of proving causation is relevant
explain the distinction between the factual cause and the legal cause of the consequence element of a result crime
explain the notion of novus actus interveniens
give a coherent account of the reasoning behind the rules relating to causation
apply the rules relating to causation to factual situations
successfully complete computer-marked assessment 1.
Criminal law Chapter 4 Actus reus: consequences
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4.1 Causation and liability Generally, the issue of causation presents no problem; it is usually self-evident. For example, A, intending to kill B, shoots B and B dies. It would normally follow that B has died as the result of A’s conduct. If that is the case A would be guilty of murder as he would appear to have unlawfully killed a human being (actus reus) with the intention to kill (mens rea). But what if A, intending to kill B, shoots at B, the bullet hitting B in the chest, seriously injuring him. An ambulance is called but takes over an hour to arrive. When B arrives at the hospital, weakened by the combination of the injury and the delay, the junior doctor who attends to him has been up all night dealing with emergencies and, because he is tired, fails to look at the bracelet B is wearing which reveals that B is allergic to penicillin. He gives B a large dose of penicillin. B has an allergic reaction to the drug and dies. Can it be said that A’s conduct caused B’s death? It certainly is a cause but for legal purposes should it be deemed to be the operative cause? These are the types of issues which trouble the courts.
Self-reflection Do you think that these intervening events should obliterate A’s contribution to B’s death which would result in A being guilty of neither murder nor manslaughter?† If so, do you think that the doctor and/or the ambulance service should be held to be criminally responsible? Alternatively, are you of the view, perhaps, that, as A initiated the chain of events which resulted in B’s death – after all, he did intend to kill B – the intervening events would not be sufficient to obliterate A’s contribution? That A’s contribution should be deemed to be the operative cause of B’s death, making A guilty of murder? Perhaps you are of the view that A’s state of mind should be taken into account at this stage. Note, however, that we are considering the actus reus and not the mens rea. (Causation is an element of the actus reus of result crimes although, arguably, the state of mind of the defendant is a factor which might influence the outcome of a trial or appeal.)
Activity 4.1 You should now consider the following situations. Do you think that, in each case, the defendant should be criminally liable for the death of the victim? Do not, at this stage, try to identify any offences or defences. You should merely consider what you think would be an appropriate outcome. Why, in each case, do you think that the defendant should or should not be criminally liable? By the time you have completed this chapter of the subject guide and the associated readings, you should be able to predict an outcome based upon the law. It might be useful for you at that time to reflect on any differences between your initial view and the likely outcome under the current law. You might also reflect on the likely outcome of the initial example given above. a. John has been convicted of the rape of Betty. Six months after the rape Betty has still not recovered psychologically. She feels ashamed. She commits suicide. Should John be accountable for Betty’s death? b. Sabina accepts a lift in Freddie’s car. Whilst driving at 30 miles per hour Freddie touches Sabina’s breast and asks her if she will have sexual intercourse with him. Sabina is frightened. She panics and jumps out of the car, breaking her ankle. Should Freddie be accountable for Sabina’s injury? c. Anna has a fight with Iqbal and stabs him. Iqbal is seriously injured. He is taken to hospital and placed on a life-support machine. One night a nurse, who hates money being wasted on expensive life-support machinery and without being authorised to do so, switches off the life-support machine. Iqbal dies. Should Anna be accountable for Iqbal’s death?
†
The actus reus of murder and manslaughter are the same: it is the mens rea which differs.
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University of London International Programmes d. Lee attacks Sam and beats him up. Sam is injured and taken to hospital. The doctor who attends to Sam has avian flu. The doctor does not know this. The doctor recovers, but Sam who contracts the virus from the doctor does not and dies some days later. Should Lee be accountable for Sam’s death? e. Natalia, intending to seriously injure him, stabs Ivan. Ivan is taken to hospital where he is told that he needs emergency surgery and a blood transfusion. Ivan is a Jehovah’s Witness. One of the tenets of this religion is that its adherents must not accept the blood of another. Ivan, despite being told that if he does not have a transfusion he will probably die, refuses the blood. He dies. Should Natalia be accountable for Ivan’s death? f.
Rahul, intending to kill Sachin, of whom he is jealous, shoots at him with a gun. It causes a slight flesh wound. An ambulance is called. On the way to hospital the ambulance collides with a speeding car. All of the occupants including Sachin are killed. Should Rahul be accountable for Sachin’s death?
No feedback provided at this stage, but see Activity 4.6.
Self-reflection
Reflect now on what you thought should be the outcomes in respect of questions c and d above.†
Did you come to the same conclusion for both of them? Why (or why not)?
How did your conclusions compare with those in respect of the example given at the beginning of this section?
What factors influenced your decisions?
Did relative blameworthiness influence your decisions at all? Even though we are considering an element of the actus reus and not mens rea here you might have found it difficult not to attach importance to the various states of mind of the actors or what in some cases you perceived them to be.
What type of intervening event, if any, do you think would be sufficient to obliterate the defendant’s conduct in each of the situations outlined above?
It is worth reflecting very carefully at this stage on why you came to your conclusions in respect of the above questions. Even if, as you work through this section of the guide and the readings, you find that your solutions are not necessarily those adopted by the courts, you might discover that your reasoning – or at least your instinct – was, in some instances, not dissimilar to that of the judges. Note that the issue of causation should (where it is relevant) always be considered as an element of the actus reus. The defendant’s conduct must be both the factual and legal cause of the result.
4.2 Factual causation Essential reading
Wilson, Chapter 5: ‘Causation’, Section 5.5 ‘Causation: the legal position’.
Factual causation is determined by reference to the sine qua non (or ‘but for’) test. It is a precondition of proof of causation but is not sufficient, in itself, to determine the causal link. For example, if A invited B to his house and on the way B was killed in a road accident, it could be said that ‘but for A inviting B to his house, B would not have died’. However, although A’s conduct was therefore a sine qua non of B’s death (i.e. a ‘but for’ or factual cause) it is not the legal cause and A could not be criminally liable for the death of B.
†
Never make assumptions as to a defendant’s state of mind or as to anything else for that matter. If you have not been given sufficient information in a question to come to a determinative conclusion on guilt or innocence then point this out.
Criminal law Chapter 4 Actus reus: consequences Nonetheless the defendant’s conduct must actually be demonstrated to have been the sine qua non of the result (see White [1910]). Whether something amounts to a factual cause of an event is a question of fact for the jury, who will determine this by reference to the ‘but for’ test (above). If the result would have occurred regardless of the defendant’s conduct – as in White – then he cannot be said to have caused that result regardless of his intention. The ‘but for’ test is the starting point for the consideration of causation but will never, of itself, determine the outcome. In Carey [2006] EWCA Crim 17 a girl had died following an affray during which she had had her face punched by one of the appellants. After the danger from the appellants was over – they had been chased away – the girl had run 109 yards uphill. Neither she nor her doctor was aware that she suffered from a heart disease. She collapsed and died after her run.
Activity 4.2 Read the case of Carey (which you can access on Westlaw through the Online Library) and consider the following questions. 1. With what offence were the appellants convicted? 2. What was the issue for the Court of Appeal? 3. What did the court decide?
4.2.1 Causation by omission Can a non-event be a ‘but for’ cause of the consequence in any result crime? If you reconsider the cases on liability for omissions to act (Chapter 3) you will see that the courts seem to assume that it can. Whatever the philosophical view, however, if it were otherwise, none of the defendants in the cases outlined in that chapter would have been convicted. You will recall from Chapter 4 the case of Instan [1893] 1 QB 450 where the defendant was convicted of the manslaughter of her elderly aunt with whom she lived and who became very ill and unable to fend for herself. The defendant had made no attempt to help her aunt, she had not given her food and neither had she tried to obtain medical help. Lord Coleridge CJ said in that case: [There can be no] question that the failure of the prisoner to discharge her legal duty at least accelerated the death of the deceased, if it did not actually cause it. There is no case directly in point; but it would be a slur upon and a discredit to the administration of justice in this country if there were any doubt as to the legal principle, or as to the present case being within it. The prisoner was under a moral obligation to the deceased from which arose a legal duty towards her; that legal duty the prisoner has wilfully and deliberately left unperformed, with the consequence that there has been an acceleration of the death of the deceased owing to the non-performance of that legal duty.
The Law Commission working paper on causation produced in 2002 proposes: (1)… [A] defendant causes a result which is an element of an offence when: (a) he does an act which makes a substantial and operative contribution to its occurrence or (b) he omits to do an act, which he is under a duty to do according to the law relating to the offence, and the failure to do the act makes substantial and operative contribution to its occurrence.
Summary When a person is charged with a result crime it must be proved that his or her conduct actually caused that result. Generally, this element of the offence needs no special consideration as it is clear from the facts that causation is established. For example, A stabs B and B dies instantly. There are occasions, however, where it is not clear that
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University of London International Programmes the defendant’s conduct was the cause of the result. It may be that A stabbed B but B was taken to hospital and given the wrong treatment following which B died. Where causation is an issue it must first of all be established that the defendant’s conduct was the ‘sine qua non’ or the ‘but for’ cause of the result. This is known as ‘factual causation’. If the defendant’s conduct was not the factual cause of the result then there can be no criminal liability. You should remember, however, that even if factual causation is established this does not, of itself, determine guilt. It must also be proved that the defendant’s conduct was the legal cause.
4.3 Legal causation Here, the judge will direct the jury as to whether something is capable of being the legal cause according to legal principles and the jury will decide on the basis of what the judge has told them whether or not it was in the case under consideration. In other words, whereas whether there was factual causation is a question of fact for the jury, it is a question of law as to whether a factual cause is capable of amounting to a legal cause of an event. Expert evidence will frequently play a role in court in the determination of cause – especially cause of death – when there are a number of possible causes. It will be obvious, for example, why medical evidence was necessary in the cases of White and Carey above. It should be noted, however, that although expert testimony is often both relevant and necessary it is not determinative. It is not for doctors to determine whether a defendant is or is not legally responsible for a victim’s death; that is a question of law to be decided according to the principles outlined below. This is one of the reasons why the case of Jordan [1956] 40 CAR 152 has been criticised, in that it is argued that it was the medical experts who determined the cause of death. Jordan, however, is a case which, although not explicitly overruled, is not followed and whose decision was described in Malcherek [1981] 1 WLR at 696D as ‘very exceptional’ and in Smith [1959] 2 QB 35 as a ‘very particular case depending upon its exact facts’.
Self-reflection Read the extract in your study pack from Glanville Williams, Textbook of criminal law (London: Stevens & Sons, 1983) second edition [ISBN 0420468609] pp.381–382 and consider carefully what he says. Glanville Williams points out that ‘several attempts have been made to find a suitable name for this second notion of cause’. He is of the opinion that some of the words used to describe it are ‘misleading’ but thinks the word ‘just’ in the Model Penal Code indicates the true nature of the problem – that is, he says: ‘… the further test to be applied to the but-for cause in order to qualify it for legal recognition is not a test of causation but a moral reaction’. Bear this in mind as you work through the cases on legal causation. It may help you to understand why the decisions were made in the way that they were. Another factor to bear in mind is that causation – or lack of it – is frequently pleaded by defendants where all the other elements of the offence with which they have been charged, including the mens rea, have been established. It is thus often a ‘last ditch’ attempt to be exonerated from liability and, for this reason, judges are wary of allowing it to succeed. This is particularly the case where there is evidence that medical treatment has contributed to the death. It has been pointed out in many of these cases that it is the defendant and not the doctors who are on trial. In addition to the descriptive words used in the above extract, other terms you will frequently come across which are used to define a ‘legal’ cause will include ‘operating’, ‘substantial’, ‘substantive’ and ‘significant’.
Criminal law Chapter 4 Actus reus: consequences
4.3.1 Operating and substantial cause Essential reading
Wilson, Chapter 5: ‘Causation’, Section 5.6 ‘Particular examples of casual sequences giving rise to causation problems’.
The defendant’s conduct must be an operating and substantial (or significant) cause of the result but it does not have to be the main or only cause.
Smith [1959] 2 QB 35 You will find the facts of this case in Wilson or, even better, you can access and read the case which you can access through the Online Library Lord Parker CJ said in this case: … [I]f at the time of death the original wound is still an operating cause and a substantial cause, then the death can properly be said to be the result of the wound, albeit that some other cause of death is also operating. Only if it can be said that the original wounding is merely the setting in which another cause operates can it be said that the death did not result from the wound. Putting it another way, only if the second cause is so overwhelming as to make the original wound merely part of the history can it be said that the death does not flow from the wound.
See also Benge (1846) 2 Car & Kir 230. The culpable act must be more than a minimal cause of the result. In Cato [1976] 1 WLR 110, Lord Widgery CJ said: As a matter of law it was sufficient if the prosecution could establish that [the heroin] was a cause [of death] provided it was a cause outside the de minimis range, and effectively bearing upon the acceleration of the moment of the victim’s death.
4.3.2 The result must be attributable to the culpable act Essential reading
Wilson, Chapter 5: ‘Causation’, Section 5.5 ‘Causation: the legal position’, Part B.1 ‘The general framework for imputing cause’.
Dalloway (1847) 2 Cox 273.
Activity 4.3 The facts of this case can be found in Wilson. Why was Dalloway found not guilty of manslaughter? See also Smith [1959] (above) and Cheshire [1991] (below) where the court decided that negligent medical treatment could only break the chain of causation where it was so independent of the defendant’s acts, and in itself so potent in causing death that the jury regard the contribution made by the defendant’s acts as insignificant. See also Carey [2006] (above). In R v Campbell (Andre), R v Yateman (Jermaine), R v Henry (Lloyd Rudolf) [2009] EWCA Crim 50 the victim had been attacked by a number of men including Campbell and Henry. Sometime later, Yateman, who had been a member of the original group of attackers, committed another assault on the victim and attempted to rob him. The victim subsequently died. Campbell and Henry appealed against their convictions for murder and manslaughter. They argued that the victim’s death was caused by the subsequent attack, with which they were not involved. The Court of Appeal dismissed their appeals. There was medical evidence on which the jury was entitled to conclude that their actions in the earlier incident were a significant cause of death and that causation could be established from the injuries sustained by the victim before Yateman’s attack. The judge’s summing up on causation was appropriate, as was his direction to the jury that it was for them to decide whether Yateman’s use of his fists in the course of the attempted robbery went beyond any pre-existing purpose. Therefore, the jury was entitled to conclude that Campbell and Henry were parties to a joint enterprise which extended to Yateman’s actions.
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4.3.3 Victims must be taken as found The defendant must take his victim as he finds him. Therefore if A inflicts a slight wound on a haemophiliac, or lightly hits the head of a person with a thin skull, A will be liable for the consequences. The victim’s weakness will not break the chain of causation.
Blaue [1975] 1 WLR 1411 The defendant stabbed a woman who needed surgery and a blood transfusion to save her life. She refused the transfusion as she was a Jehovah’s Witness and it was contrary to her beliefs. She died. The defendant, appealing to the Court of Appeal against his conviction for manslaughter, argued that the jury should have been directed that if they thought the victim’s refusal of blood was unreasonable then the chain of causation would have been broken. Lawton LJ said: At once the question arises – reasonable by whose standards? Those of Jehovah’s Witnesses? Humanists? Roman Catholics? Protestants of Anglo-Saxon descent? The man on the Clapham omnibus?† … Two cases each raising the same issue of reasonableness of religious belief, could produce different verdicts depending on where the cases were tried.
And later in his judgment: It does not lie in the mouth of the assailant to say that the victim’s religious beliefs which inhibited him from accepting certain kinds of treatment were unreasonable. The question for decision is what caused her death. The answer is the stab wound. The fact that the victim did not stop this coming about did not break the causal connection between the act and death…
See also Holland (1841) 2 Mood & R 251.
Summary We have seen that the defendant’s conduct, in addition to being the factual cause of the result, must also be the legal cause. Although it must be a significant cause of the result it does not have to be the main or only cause provided it is more than a minimal cause. The result must be attributable to the defendant’s conduct and the defendant takes his victim as he finds him. As to whether the defendant’s conduct is deemed to be the legal cause of the result where there is another intervening cause is discussed in the section below.
4.4 Intervening causes Essential reading
Wilson, Chapter 5: ‘Causation’, Section 5.6 ‘Particular examples of casual sequences giving rise to causation problems’.
Once the defendant’s conduct has started a chain of events he will be legally responsible for the result unless the chain is broken by some novus actus interveniens or supervening event. This might be the act of a third party, the act of the victim or an act of God/nature which has become the operating cause. It has been argued that this will only break the chain of causation, thus negating the defendant’s liability, where it was not reasonably foreseeable and has operated to render the defendant’s original conduct no longer an operating and substantial cause but merely part of the background history. Goff LJ in Pagett said: Occasionally…a specific issue of causation may arise. One such case is where, although an act of the accused constitutes a causa sine qua non of (or necessary condition for) the death of the victim, nevertheless the intervention of a third person may be regarded as the sole cause of the victim’s death, thereby relieving the accused of criminal responsibility. Such intervention, if it has such an effect, has often been described by
† The ‘man on the Clapham omnibus’ represented the hypothetical reasonable person against whom the defendant’s conduct would be judged.
Criminal law Chapter 4 Actus reus: consequences lawyers as a novus actus interveniens… a term of art which conveys to lawyers the crucial feature that there has not merely been an intervening act of another person, but that that act was so independent of the act of the accused that is should be regarded in law as the cause of the victim’s death, to the exclusion of the act of the accused.
An act done instinctively for the purposes of self-preservation will not break the chain of causation.
Pagett [1983] 76 Cr App R 279 The defendant, using his girlfriend as a human shield, shot at police officers who returned fire, killing his girlfriend. His appeal against conviction for manslaughter was dismissed by the Court of Appeal. The conduct of the police was justified as it was a reasonable act of self-defence. Goff LJ said: There can, we consider, be no doubt that a reasonable act performed for the purpose of self-preservation, being of course itself an act caused by the accused’s own act, does not operate as a novus actus interveniens.
It was also stated in Pagett that a free deliberate and informed intervention (i.e. a fully voluntary act) may have the effect of breaking the chain of causation, but see the Empress Car case and the comments in Wilson. See also the drug administration cases below.
Escape cases Where the defendant has frightened the victim to the extent that the victim has killed or injured himself trying to escape the danger then, provided the victim’s reaction was not so ‘daft’ as to make it the victim’s own voluntary act (Roberts (1971) 56 Cr App R 95 and Williams and Davis [1992] below), then it will not break the chain of causation between the defendant’s conduct and the result. In Williams and Davis [1992] 1 WLR 380 Stuart-Smith LJ stated: The nature of the threat was important in considering both the foreseeability of harm to the victim from the threat and the question whether the deceased’s conduct was proportionate to the threat, that is to say that it was within the ambit of reasonableness and not so daft as to make it his own voluntary act which broke the chain of causation. The jury should consider…whether the deceased’s reaction in jumping from the moving car was within the range of responses which might be expected from a victim placed in his situation. The jury should bear in mind any particular characteristic of the victim and the fact that in the agony of the moment he might act without thought and deliberation.
See also Mackie (1973) 57 Cr App R 453 and Marjoram [2000].
Activity 4.4 Online research Find the cases of Roberts [1971] and Williams and Davis [1992] using the Online Library. Could the reasoning in these cases be said to conflict with that in Blaue?
4.4.1 Killing by fright Essential reading
Wilson, Chapter 5: ‘Causation’, Section 5.6 ‘Particular examples of casual sequences giving rise to causation problems’.
When a victim dies as the result of fright – where, for example, the fear caused by the defendant causes a physiological reaction such as a heart attack – then the defendant takes the victim as he finds him. The abnormal state of the deceased’s health did not affect the question whether the prisoner knew or did not know of it if it were proved to the satisfaction of the jury that the death was accelerated by the prisoner’s unlawful act. (Ridley J in Hayward (1908) 21 Cox 692.)
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See also Dawson [1985] 81 Cr App R 150 and Carey. In Watson [1989] 2 All ER 865 the Court of Appeal found that where the victim had died of a heart attack, a jury could have decided that the appellants’ acts of burgling the house of a frail 87-year-old and verbally abusing him when he awoke had caused his death.
4.4.2 Neglect by the victim Where the victim neglects to treat an injury inflicted on him by the defendant and death results it is likely that the defendant will be held to be responsible for the death, as in Holland (above) where the defendant, in the course of an assault, injured one of the victim’s fingers. The victim rejected the surgeon’s advice that the finger should be amputated. The wound became infected with lockjaw (tetanus) from which the victim died. Maule J said in his direction to the jury that ‘the real question is, whether in the end the wound inflicted by the prisoner was the cause of death’. He who inflicted an injury which resulted in death could not excuse himself by pleading that his victim could have avoided death by taking greater care of himself. The jury convicted. In the more recent case of Dear [1996] Crim LR 595 the defendant had attacked the victim with a Stanley knife,† the victim having sexually abused the defendant’s daughter. The victim’s wounds were stitched but reopened and the victim bled to death. It was not clear whether the victim had reopened the wounds himself or whether they had reopened themselves. Either way, the victim had not obtained medical help. Rose LJ stated: It would not, in our judgment, be helpful to juries if the law required them… to decide causation in a case such as the present by embarking on an analysis of whether a victim had treated himself with mere negligence or gross neglect, the latter breaking but the former not breaking the chain of causation between the defendant’s wrongful act and the victim’s death.
It is to be noted from cases such as Blaue, Holland and Dear that an omission to act on the part of the victim will not break the chain of causation where the result can be said to be attributable to the original injury.
4.4.3 Medical interventions Essential reading
Wilson, Chapter 5: ‘Causation’, Section 5.6 ‘Particular examples of casual sequences giving rise to causation problems’, Part B.2 ‘Third party’s act contributing to the occurrence of injury’.
In Jordan [1956] the defendant who stabbed the victim was held not to be liable for his death. The victim had died after receiving ‘palpably wrong’ medical treatment when his wounds had almost healed. According to the court, death which resulted from ‘normal medical treatment’ would not break the chain of causation. However the effect of Smith [1959] (above) is to isolate Jordan – although not to overrule it – by referring to it as a ‘very particular case depending upon its own facts’. In Smith, had the Jordan test of ‘abnormal’ or ‘palpably wrong’ treatment been applied it would have been difficult to uphold Smith’s conviction unless it could be argued that the wound in Smith remained an ‘operating cause’. In Jordan the wound had practically healed and no longer posed a danger to the victim. Arguably, if there is a doctrine of ‘intervening act’ it was evaded in Smith by Parker CJ’s use of vague terms such as ‘operating’ and ‘substantial’ causes. In Malcherek [1981] Lane LJ stated: There may be occasions, although they will be rare, when the original injury has ceased to operate as a cause at all, but in the ordinary case if the treatment is given bona fide by competent and careful medical practitioners, then evidence will not be admissible to show that the treatment would not have been administered in the same way by other medical practitioners. In other words, the fact that the victim has died, despite or because of medical treatment for the initial injury given by careful and skilled medical practitioners, will not exonerate the original assailant from responsibility for the death.
†
Stanley knife: a knife with a sharp retractable blade used for ‘do it yourself’ projects.
Criminal law Chapter 4 Actus reus: consequences Subsequently, in Cheshire [1991] the court decided that negligent medical treatment could only break the chain of causation where it was so independent of the defendant’s acts, and in itself so potent in causing death, that the jury regard the contribution made by the defendant’s acts as insignificant. See also Gowans [2003] All ER (D) (Dec) where the Court of Appeal held that the jury had been properly directed in accordance with Smith [1959]. They were entitled to conclude on the basis of the evidence that the attack necessitated treatment which had rendered the victim vulnerable to the infection and therefore that the death was attributable to the acts of the defendants. The court added that if the hospitalised victim of an attack contracted a fatal infection ‘purely by chance’ – for example by breathing in airborne germs – the attack would merely amount to the setting in which another cause operated. In those circumstances, the death of the victim would not be attributed to the acts of the assailant. Consider now the situation where the injuries inflicted by the defendant prevent lifesaving treatment for another unconnected condition.
Self-assessment Read the case of McKechnie (1991) 94 Cr App R 51. Why was the defendant’s conviction for manslaughter upheld by the Court of Appeal.
Activity 4.5 Read the article ‘Criminal causation and the careless doctor’ by John E. Stannard in your study pack and consider the following questions. a. What was the ‘direct conflict of expert testimony’ with which the court was confronted in the case of Cheshire? b. In what way was the trial judge ‘uncompromising’ in his direction to the jury? c. What was the question for the Court of Appeal in this case? d. What does the author consider to be the three criteria to be satisfied (assuming the defendant’s conduct is the factual cause of death) in order to hold the defendant criminally responsible? e. Why was Jordan’s conviction quashed? f.
Did the Court of Appeal in Cheshire agree with the trial judge’s direction to the jury?
g. What were the points of principle stressed by Beldam LJ in this case? h. Why did the author consider the reasoning in the case of Evans and Gardiner (No.2) [1976] VR 523 to be ‘questionable’? i.
In cases concerning the competence of medical treatment, what did the author consider the ultimate question to be?
4.4.4 Acts of God/nature Essential reading
Wilson, Chapter 5: ‘Causation’, Section 5.6 ‘Particular examples of casual sequences giving rise to causation problems’, Part B.3 ‘Intervening cause supersedes defendant’s act’.
Generally the result will be deemed not to have been reasonably foreseeable.
4.4.5 Unlawful administration of controlled drugs Essential reading
Wilson, Chapter 5: ‘Causation’, Section 5.6 ‘Particular examples of casual sequences giving rise to causation problems’, Part B.3 ‘Intervening cause supersedes defendant’s act’.
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University of London International Programmes The following cases should be considered here. These cases are more fully discussed in Chapters 7–8 in the context of manslaughter.
Kennedy (No.1) [1999] Cr App R 54
Dias [2002] EWCA Crim 1
Finlay [2003] EWCA Crim 3868
Kennedy (No.2) [2005] EWCA Crim 685
What you should note at this stage, and will consider further when you study manslaughter, is that a line of recent cases concerning constructive manslaughter and involving the administration of drugs has proved controversial. In these cases the defendant supplied a controlled drug to a user who consumed or self-injected the drug and then died from its effects.
Self-reflection Read Wilson, Chapter 5: Section 5.6 ‘Particular examples of casual sequences giving rise to causation problems’, Part B.3 ‘Intervening cause supersedes defendant’s act’, which contains a brief account of the above cases. Can D who supplies drugs to V to self-inject ever be guilty of manslaughter if V dies?
Activity 4.6 In Activity 4.1 you were asked to consider a number of scenarios as a self-reflection exercise. Return to questions a–e. Having worked your way through this topic, how would you now answer these questions? a. Should John be accountable for Betty’s death? b. Should Freddie be accountable for Sabina’s injury? c. Should Anna be accountable for Iqbal’s death? d. Should Lee be accountable for Sam’s death? e. Should Natalia be accountable for Ivan’s death? Do not attempt to deal with the offences themselves. This is purely an exercise on the principles of causation.
Summary Where the offence is a ‘result’ crime it must be proved that the defendant’s conduct was both the factual and the legal cause of the prohibited result or consequence. The issue is one for the jury to determine, applying the legal principles which will have been explained to them by the judge in the summing up. This issue is, generally, not a contentious one but you should be able to recognise when it is.
Criminal law Chapter 4 Actus reus: consequences
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Reflect and review Look through the points listed below: Are you ready to move on to the next chapter? Ready to move on = I am satisfied that I have sufficient understanding of the principles outlined in this chapter to enable me to go on to the next chapter. Need to revise first = There are one or two areas I am unsure about and need to revise before I go on to the next chapter. Need to study again = I found many or all of the principles outlined in this chapter very difficult and need to go over them again before I move on. Tick a box for each topic. Ready to move on
Need to revise first
Need to study again
I can explain the distinction between the factual cause and the legal cause of the consequence element of a result crime.
I can explain the notion of novus actus interveniens.
I can give a coherent account of the reasoning behind the rules relating to causation.
I can apply the rules relating to causation to factual situations.
I have completed the first computer marked assessment and achieved a mark of 65% or better.
I can identify when the issue of proving causation is relevant.
If you ticked ‘need to revise first’, which sections of the chapter are you going to revise? Must revise
Revision done
4.1 Causation and liability
4.2 Factual causation
4.3 Legal causation
4.4 Intervening causes
Before you continue to the next topic listen again to audio presentation 5 to recap and consolidate what you have learnt.
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5
Mens rea
Contents Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .46 5.1
Mens rea . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
5.2
Intention. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .49
5.3
Recklessness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .53
5.4
Negligence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .56
5.5
Coincidence of actus reus and mens rea . . . . . . . . . . . . . . . . . . 56
5.6
Transferred malice . . . . . . . . . . . . . . . . . . . . . . . . . . . . .58
5.7
Strict liability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .59 Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . .64
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Introduction We considered the actus reus of offences in the preceding chapters but, as you know, proof of the actus reus does not, of itself, make a defendant guilty of an offence. It must also be proved that the defendant committed the actus reus of the offence with the requisite mens rea (the mental element) as specified in the definition of that offence. Remember, you must go to the definition of the offence to find out what is the appropriate mens rea for a particular offence. Although the majority of the offences in this subject guide are offences requiring proof of either intention or recklessness, there are a number of criminal offences which can be committed negligently (e.g. careless driving and the serious offence of gross negligence manslaughter considered in Chapter 6). Negligence is not a form of mens rea. Negligence is determined by reference to an objective standard (i.e. would a reasonable person have/have not done what the defendant did/did not do?). In addition, there are a large number of offences (usually statutory) which may be committed without mens rea or negligence in respect of at least one element of the actus reus. These are strict liability offences.
Essential reading and listening
Wilson Chapter 6: ‘Mens rea’.
Audio presentation 6.
Lord Bingham’s speech in R v G [2003] HL. (Included in your study pack.)
Article 6 of the European Convention on Human Rights and Fundamental Freedoms. (Included in your study pack.)
Extract from Ackner LJ’s judgment in Attorney General’s Reference (No. 4 of 1980) [1981] 2 All ER 617. (Included in your study pack.)
Learning outcomes By the end of this chapter and the relevant readings you should be able to:
understand the different types of mens rea
explain the distinction between intention and recklessness
ascertain what mens rea requirements are relevant to the particular offence you are dealing with
explain the principles of coincidence of actus reus and mens rea
explain the notion of basic, specific and ulterior intent
explain the rules relating to transferred malice and know where they apply
explain why negligence is not a form of mens rea
give a coherent account of some of the arguments in favour of and against the imposition of strict liability.
Criminal law Chapter 5 Mens rea
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5.1 Mens rea As with actus reus, it is essential not to be misled by the Latin phrase mens rea. It does not indicate wickedness in any moral or general sense. Nor does a good motive provide a defence to what is otherwise criminal behaviour. Mens rea is a legal term of art which refers to the state of mind required for a particular criminal offence. This has not always been the case. As Glanville Williams points out in his Textbook of criminal law at page 70: Increasing insistence upon this fault element was a mark of advancing civilisation. In early law the distinction between what we now call crimes and civil wrongs was blurred, and liability in both was very strict. Little or no mental element was requisite: the law hardly distinguished between intentional and unintentional acts. In the animistic period of legal thinking ‘punishment’ was inflicted even upon animals and inanimate objects.
Over the centuries, the notion of the requirement of some mental element before blameworthiness could be attributed to a defendant gradually came to be accepted. The law was influenced first of all by the church and such proponents of its teaching as St. Augustine and Theodore of Tarsus, and by writers such as Bracton who wrote in the thirteenth century and Coke who wrote in the fifteenth century. The maxim, ‘reum non facit nisi mens rea’, which had been cited in Leges Henrici Primi† in relation to perjury, appeared in Coke’s Third Institute as actus non facit reum, nisi mens sit rea. The maxim does not apply to crimes of negligence or those of strict liability. Many crimes, however, require proof that at the time the defendant acted or omitted to act he had the particular state of mind as determined by the definition of the offence with which he is charged. It is important to note that a person who has committed the actus reus of an offence with the appropriate mens rea is not necessarily morally reprehensible or wicked. Motive is generally irrelevant in criminal law. So, for example, mercy killing, whether or not it is carried out by a doctor, is murder whatever the motive of the defendant. Where, however, a doctor whose primary purpose or motive is the relief of pain, gives medication to a patient which he knows will incidentally hasten that patient’s death, he will not be deemed to have the mens rea for murder. See Adams [1957] Crim LR 365 and Devlin J’s direction to the jury that: a doctor who [is] aiding the sick and dying [does not have] to calculate in minutes, or even in hours, and perhaps not in days or weeks the effect upon a patient’s life of the medicines which he administers or else be in peril of a charge of murder…he is entitled to do all that is proper and necessary to relieve pain and suffering, even if the measures he takes may incidentally shorten life…
This direction was approved by the House of Lords in Airdale NHS Trust v Bland [1993] 2 WLR 316. In Bland Lord Goff said: … [T]he established rule [is] that a doctor may, when caring for a patient who is, for example, dying of cancer, lawfully administer painkilling drugs despite the fact that he knows that an incidental effect of that application will be to abbreviate the patient’s life.
The law, however, distinguishes between allowing to die – which may include the giving of palliative care which incidentally shortens life – and killing. See also R v Cox Winchester Crown Court, 18 September 1992 12 BMLR, in Chapter 4 of this guide. You may remember that, although the patient died, the doctor could not be charged with her murder as she had been cremated before his conduct was discovered and the causal link between his conduct and her death could not therefore be established beyond reasonable doubt. He was, however, convicted of attempted murder. Note the cases of Gillick and A (Children) discussed elsewhere in this guide and also see Steane [1947] KB 997. Generally, however, motive is irrelevant. See Chandler v DPP [1964] AC 763.
†
Leges Henrici Primi: (Latin) The laws of King Henry I, who reigned from 1100–1135.
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University of London International Programmes Note that a mistaken belief may negate a defendant’s mens rea. A defendant who, for example, shoots and kills a person, honestly believing that it was a tailor’s dummy will not be guilty of murder. Equally, a person who appropriates property belonging to another, honestly believing it to be his own property will not be guilty of theft. Mistake is discussed in Chapter 11.
Self-reflection Was there any difference between the doctors’ motives in the cases of Cox and Bland?
5.1.1 Basic, specific and ulterior intent offences Occasionally judges refer to offences of basic, specific or ulterior intent. An offence of basic intent is one for which the prosecution do not have to prove any intent beyond what the accused actually did (e.g. he punched or touched someone or broke a window). A crime of specific intent requires the prosecution to have something in mind as a result of his action (e.g. to kill or cause serious injury to the victim). The distinction between basic and specific intent crimes is of importance where the defendant has raised self-induced intoxication as evidence of lack of mens rea. Such evidence is relevant evidence for crimes of specific intent but not for those of basic intent: Majewski [1977] AC 443. An ulterior intent crime is one which requires mens rea in relation to a consequence which goes beyond the actus reus of the offence. For example burglary contrary to s.9(1)(a) of the Theft Act 1968 (as amended by the Sexual Offences Act 2003) is an example of an ulterior intent crime. Section 9 provides: (1) A person is guilty of burglary if: (a) he enters a building or part of a building as a trespasser and with intent to commit any such offence as is mentioned in subsection (2) below; … (2) The offences referred to in subsection (1)(a) above are offences of stealing anything in the building or part of a building in question, or inflicting on any person therein any grievous bodily harm…[or of] doing unlawful damage to the building or anything therein.
If you read the above carefully, you will see that the actus reus of burglary contrary to s.9(1)(a) is committed as soon as the defendant enters, as a trespasser, the building or part of a building. The basic mens rea is knowledge as to the facts which made him a trespasser. The ulterior mens rea is the intention to commit one of the three offences specified in subs.(2). It is not necessary that he goes on to commit any of these offences: it is enough that, at the time of his trespassory entry, he intended to do so. This offence is discussed in Chapter 16. Further examples of ulterior intent crimes include wounding with intent to cause grievous bodily harm and wounding or causing grievous bodily harm with intent to resist or prevent arrest contrary to s.18 of the Offences Against the Person Act 1861 discussed in Chapter 8.
Activity 5.1 Revision and consolidation Return to the definition of the offence of criminal damage contrary to s.1(1) of the Criminal Damage Act. a. What is the mens rea for this offence? b. Is this offence a specific intent crime or one of basic intent? c. Is this offence a conduct crime or a result crime? d. Consider the definition of the offence of theft contrary to s.1(1) of the Theft Act 1968. Is this offence a basic or a specific intent crime? Is it an ulterior intent crime?
Criminal law Chapter 5 Mens rea
Summary Criminal liability for most serious offences requires proof of either intention or recklessness. Some examples of offences which require proof of nothing less than intention are murder, causing grievous bodily harm with intent contrary to s.18 of the Offences Against the Person Act 1861 and attempt, an inchoate offence contrary to s.1(1) of the Criminal Attempts Act 1981. Recklessness is sufficient mens rea for the offence of criminal damage contrary to the Criminal Damage Act 1971 (considered in more detail in later chapters of this guide). The requisite mental element may relate to:
the defendant’s conduct; and/or
the relevant circumstances; and/or
(for result crimes) the consequences.
It is important that you consider the definition of any offence very carefully in order to ascertain what is the mens rea for that particular offence.
5.2 Intention Essential reading
Wilson Chapter 6: ‘Mens rea’, Section 6.6 ‘Intention’.
Many of the Court of Appeal and House of Lords decisions relating to the meaning of intention have arisen where the defendant has been charged with murder. Murder and many of these cases are discussed further in Chapter 7. In your reading you will come across two terms in this context. They are direct intent and oblique intent.
Direct intent A person could be said to have a direct intention where it was their purpose to achieve a particular result. So, for example, it is my purpose to eat this chocolate. I eat the chocolate. I intended to eat the chocolate.
Oblique intent A person could be said to have an ‘oblique’ intention where, although a particular result is not his primary purpose or objective, he appreciates, as a virtual certainty, that that result will occur as a consequence of his conduct. For example, imagine my purpose is to destroy some papers which are being taken to the other side of the world on a plane. It is not my purpose to hurt anybody. The only way, however, that I can destroy the papers is by destroying the plane. The plane, by definition, will have people on it. I put a bomb on the plane. I do not want to hurt anybody, that is not my purpose but I do appreciate that, if the bomb goes off while, say, the plane is flying over the Atlantic, it is virtually certain that these people will be killed. Assuming the bomb goes off and people are killed, if I was charged with murder, a jury would be entitled to find that I intended to kill. Therefore, it could be said that, in the above example, I have a direct intention to destroy the papers and an oblique intention to kill. Please note that two most important cases in this section are Nedrick [1986] and the House of Lords decision in Woollin [1998] 3 WLR 382 HL. The meaning of ‘oblique intent’ has, in the past, been a contentious issue where judges, in cases such as DPP v Smith [1961] AC 290 and Hyam [1975] AC 55, have used tests which go far beyond the ordinary meaning of the word ‘intention’, causing confusion and uncertainty.
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University of London International Programmes The decision in Hyam had been subject to a number of criticisms. In Moloney [1985] where the appellant had appealed against his conviction for murder, the trial judge having directed the jury in accordance with Hyam, the House of Lords held that, in the vast majority of crimes requiring proof of intention, it was not necessary for the trial judge to explain the meaning of intention to the jury. In cases where there was evidence of direct intent it was sufficient for the judge to tell the jury that they must be satisfied that the defendant intended, in the ordinary meaning of the word, to kill or cause GBH. In those rare cases where the evidence suggested oblique intention the judge could give guidelines to the jury. Foresight was merely evidence of, but was not to be equated, with intent. In Moloney the House of Lords held that in a case such as this two questions should be placed before the jury. These were, according to Lord Bridge: First, was death or really serious injury in a murder case (or whatever relevant consequence must be proved to have been intended in any other case) a natural consequence of the defendant’s voluntary act? Secondly, did the defendant foresee that consequence as being a natural consequence of his act? The jury should then be told that if they answer yes to both questions it is a proper inference for them to draw that he intended that consequence.
The Moloney guidelines were refined by the House of Lords in Hancock and Shankland – who disapproved Lord Bridge’s term ‘natural consequence’ but approved Moloney in all other respects. They were further refined in Nedrick [1986] by the Court of Appeal. Lord Lane, who gave judgment for the court, said: Where the charge was murder and in the rare cases where the simple direction was not enough, the jury should be directed that they were not entitled to infer the necessary intention unless they felt sure that death or serious bodily harm was a virtual certainty – barring some unforeseen intervention – as a result of the defendant’s actions and that the defendant appreciated that such was the case.
Activity 5.2 Go to the Online Library and find the case of Woollin [1998] 3 WLR 382. Now read Lord Steyn’s speech and answer the following questions. 1. What were the facts of the case? 2. What offence had the defendant been charged with? 3. Given that the Crown did not contend that the appellant desired to kill his son or to cause him serious injury, what was the issue? 4. How had the trial judge directed the jury? 5. What offence was the defendant convicted of? 6. Did the Court of Appeal uphold that conviction? 7. What was the certified question for the House of Lords? 8. What did the House of Lords decide? Now that you have completed the activity you will know what the case was about and what the issues were which needed to be clarified. Remember that Lord Steyn said: … [T]he judge should not have departed from the Nedrick direction. By using the phrase ‘substantial risk’ the judge blurred the line between intention and recklessness, and hence between murder and manslaughter. The misdirection enlarged the scope of the mental element required for murder. It was a material misdirection.
As to the Nedrick test of foresight of virtual certainty, he thought it was ‘simple and clear’. It was a ‘tried and tested formula’ and judges should continue to use it. Although Lord Steyn acknowledged that: … [I]t may exclude a conviction of murder in the often cited terrorist example where a member of the bomb disposal team is killed [as] in such a case it may realistically be said that the terrorist did not foresee the killing of a member of the bomb disposal team as a virtual certainty.
Criminal law Chapter 5 Mens rea his view was that this would not cause any substantial difficulty. This was because: … [I]mmediately below murder there is available a verdict of manslaughter which may attract, in the discretion of the court, a life sentence.
He then said that he was ‘satisfied that the Nedrick test, which was squarely based on the decision of the House in Moloney, is pitched at the right level of foresight’ but he agreed with Glanville Williams, J.C. Smith and Andrew Ashworth that the ‘use of the words “to infer”… may detract from the clarity of the model direction… I would substitute the words “to find”’. The Judicial Studies Board publishes, among other things, specimen directions for trial judges. You will find these at www.jsbni.com/Publications/BenchBook/Documents/ BenchBook.doc. These are meant to be used by trial judges as guidelines for their directions to juries. In the case of R v O’Connor [2009] EWCA 1372 one of the grounds on which the defendant appealed against his conviction for murder was the way in which the trial judge had directed the jury on the issue of intention. The trial judge had defined for the jury the definition of grievous bodily harm and made clear to them the difference between the intention required for murder and manslaughter. The appeal was dismissed. The judge had given the jury the recommended Judicial Studies Board direction (see the link above). The defendant had originally intended to argue that the trial judge had been obliged to give the jury additional direction on the foresight of consequences in accordance with the decision in Nedrick (1986). The Court of Appeal thought it was ‘fortunate’ that he had abandoned that submission because it had ‘no merit whatsoever’. Unless the facts indicate it is appropriate, elaboration of directions on intent with reference to the foresight of consequences were to be avoided. See also McNamara [2009] [2009] EWCA Crim 2530 and R v Gregory (Matthew) [2009] EWCA Crim 1374. The Court of Appeal held that the JSB specimen directions were a framework to provide assistance and guidance and did not need to be followed slavishly. The important issue was that the jury was given a direction which was accurate, helpful and correctly reflected the law. The essential ingredients were present and it could not amount to a misdirection. The appeal was dismissed. Therefore, please remember that these guidelines should only be given to juries in the circumstances where the evidence is that it was not the defendant’s purpose or objective to achieve a result. Generally the issue of whether a defendant intended a consequence should be left to the good sense of the jury. A question which arises from the decision in Woollin is whether Lord Steyn’s substitution of the word ‘find’ for that of ‘infer’ changed foresight of a virtual certainty on the part of the defendant:
from evidence from which the jury may infer that he intended the consequence
to a rule of substantive law so that if they were satisfied beyond reasonable doubt that the defendant foresaw the consequence as being virtually certain they must find that he intended it.
In Nedrick, Lord Lane had said: ‘The decision is one for the jury to be reached upon a consideration of all the evidence.’ In Woollin, however, Lord Steyn said at one point in his speech that: ‘… a result foreseen as virtually certain is a result foreseen’. He also referred to a passage in Moloney where Lord Bridge had said: [L]ooking at the decided cases where a crime of specific intent was under consideration… they suggest to me that the probability of the consequence taken to have been foreseen must be little short of overwhelming before it will be sufficient to establish the necessary intent.
Lord Steyn did concede, however, that Lord Bridge had also provided guidelines for the jury in those ‘rare cases’ where it might be necessary to direct a jury by reference to foresight of consequences. It should also be noted that Lord Bridge had also pointed
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In Matthews and Alleyne [2003] 2 Cr App R 30 the Court of Appeal held that Woollin did not lay down a rule of substantive law. Nedrick derived from existing law laid down in Moloney and Hancock and Shankland. The critical direction in Nedrick had been approved in Woollin subject only to the change of one word. Another issue following Woollin is whether the critical direction is of general application or whether it is restricted to murder. The cases of Moloney, Hancock and Shankland, Nedrick and Woollin all concerned appeals against convictions for murder. Nonetheless, ‘intention’ to achieve a particular consequence is the mens rea for a number of offences and Lord Bridge recognised this in his speech in Moloney when he referred to ‘death or really serious injury in a murder case (or whatever relevant consequence must be proved to have been intended in any other case)’. In Walker and Hayles (1990) 90 Cr App R 226 the Court of Appeal adopted the Nedrick direction in a case of attempt although it did blur the line between intention and recklessness by expressing the view that the phrase ‘very high degree of probability’ meant the same as virtual certainty. In Woollin, however, Lord Steyn said: … I approach the issues arising on this appeal on the basis that it does not follow that ‘intent’ necessarily has precisely the same meaning in every context in the criminal law.
There are many contexts, however, where it would be irrational not to have the same test for oblique intent. Walker and Hayles confirms that it is appropriate for the inchoate offence of attempt contrary to s.1(1) of the Criminal Attempts Act 1981 and the test is also an appropriate one for the ‘intention’ element of the offences contrary to s.18 of the Offences Against the Person Act 1861. In ‘Legislating the criminal code: offences against the person and general principles’ (Law Com No. 218) the Law Commission proposed following the definition of intention: 1. … a person acts (a) ‘intentionally’ with respect to a result when: (i) it is his purpose to cause it, or (ii) although it is not his purpose to cause it, he knows that it would occur in the ordinary course of events if he were to succeed in his purpose of causing some other result…
Although this is not yet the law, the above clause does reflect to a large extent the present position under the law although it is to be hoped that if this clause is adopted as the law (ii) does not result in the courts giving a wider meaning to intention.
Activity 5.3 Consider the following situations. In which, if any, do you think Susan intended grievous bodily harm? a. She threw her baby across the room knowing that it was virtually certain that it would suffer GBH. b. She threw her baby across the room knowing that there was a substantial risk that it would suffer GBH. c. She threw her baby across the room hoping it would land on the bed and suffer no harm.
Criminal law Chapter 5 Mens rea
Activity 5.4 John went out shooting with Fred hoping that he would get the opportunity to kill him. He thought it was unlikely as there were other people in their shooting party who might see him. He did not get an opportunity to be alone with Fred and in desperation he aimed and shot at a rock which was 20 feet away from Fred, hoping that the bullet would ricochet and hit Fred, killing him. There was a million to one chance that it would do so. Did John have the mens rea for murder?
Summary Under the law as it is at present the defendant may be held to have intended a particular result where he acts in order to bring about that result. In other words, his primary purpose, aim or objective was to bring about a particular result. This is ‘direct intent’ (Note that purpose must be distinguished from motive, so a person who ‘mercy kills’ intends to kill: it is their purpose to kill even though their motive might be benevolent.) The defendant may also be held to have intended a consequence in situations where it was not his primary purpose but he knew that there was a virtually certain risk of that consequence occurring as a result of his conduct. This is ‘oblique intent’. Therefore, a person who blows up a building in order to destroy incriminating documents, knowing that the building is occupied and that there is a virtual certainty of death or serious harm, will have a direct intent to cause criminal damage contrary to s.1(1) of the Criminal Damage Act 1971, an oblique intent to kill or cause grievous bodily harm (the mens rea for murder) and an oblique intent to cause aggravated criminal damage contrary to s.1(2) of the Criminal Damage Act 1971. (Note that recklessness is sufficient mens rea for aggravated criminal damage; see Chapter 17.) Please also note that, unless the facts of the case indicate a need for the Woollin/ Nedrick direction, the question as to whether a defendant intended a particular consequence should be left to the good sense of the jury. There is a measure of uncertainty as to whether Woollin creates a rule of substantive law that if the jury is satisfied beyond reasonable doubt that the defendant foresaw the consequence as being virtually certain, it must find that he intended it or whether it is evidence from which the jury may find that he intended the consequence. There is also a measure of uncertainty as to whether the critical direction should be applied in other cases where proof of intention is required and the prohibited consequence was not the defendant’s purpose or desire. The better view, it is suggested, is that where appropriate, foresight of virtual certainty on the part of the defendant would be the correct test.
5.3 Recklessness Essential reading
Wilson, Chapter 6: ‘Mens rea’, Section 6.8 ‘Recklessness’.
As we saw earlier in this chapter, for some offences nothing less than intention is sufficient to establish criminal liability. Many offences, however, can be committed intentionally or recklessly. Recklessness could be described as unjustifiable risk taking but not all risk taking is reckless in the sense that it would attract criminal liability; some risks are justified by the social utility of the activity. For example, undergoing surgery inevitably involves risks beyond the control of the surgeon and, as the Law Commission pointed out: ‘The operation of public transport… is accompanied by risks of accident beyond the control of the operator…’ (Law Com No. 31). A person is reckless if, knowing that there is a risk that a consequence may result from his conduct, or that a relevant circumstance may exist, he takes that risk and it is unreasonable for him to do so having regard to the degree and nature of the risk
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University of London International Programmes which he knows to be present. This is deliberate conscious risk taking, based on what the defendant himself foresaw. Lack of foresight of the risk entitles the defendant to an acquittal. The courts originally gave recklessness this subjective meaning; the leading authority is Cunningham [1957] 2 QB 396 where the Court of Criminal Appeal approved the definition in Professor Kenny’s Outlines of criminal law (1902). In 1982 the House of Lords in Caldwell [1982] AC 341 extended the above definition – in respect of the offence of criminal damage – to include a defendant who had not given any thought to the possibility of there being an obvious risk of damage to property. Therefore, following Caldwell a defendant could be reckless despite not having foreseen the risk, provided that the risk was an obvious one. Caldwell recklessness was applied by the House of Lords to the offence of reckless driving (this offence has now been repealed). In Seymour [1983] 2 AC 493 the House of Lords applied it to the offence of manslaughter (although Seymour was later disapproved by the House of Lords in Adomako [1995] 1 AC 171 (see Chapter 6)). The decision in Caldwell was, for many years, the subject of criticism and was finally overruled by the House of Lords in R v G [2003]. Note: The sample examination question at the end of this chapter involves a discussion of recklessness. In order to write a competent answer you must ensure that you have a sound knowledge of the area, including the relevant cases. You will find references to these cases in your textbook and in the speech of Lord Bingham (which is in your study pack). It is suggested that, for the activity below, you read the speech of Lord Bingham independently of the questions and then read it again in conjunction with the questions set out below.
Activity 5.5 Please read Lord Bingham’s speech in R v G and another [2003] UKHL 50 and answer the following 26 questions. 1. What was the point of law of general public importance certified by the Court of Appeal? 2. What, according to Lord Bingham, did the appeal turn on? 3. How had the trial judge in this case explained to the jury the notion of the ‘ordinary, reasonable bystander’ (i.e. the ‘reasonable man’)? 4. How did the trial judge direct the jury to view the boys’ immaturity when they were determining the question as to whether it would have been obvious to an ordinary reasonable bystander watching that the fire would have spread to the extent that it did? 5. The jury convicted the boys of the offence. When adjourning the proceedings for a pre-sentence report what did the judge say he would take into account when sentencing the boys? 6. How were the boys sentenced? 7. How, according to Lord Bingham did the court in R v Pembliton (1874) LR 2 CCR 119 interpret the term ‘maliciously’ in the Malicious Damage Act 1861? 8. Pembliton was relied upon in Cunningham. In giving the reserved judgment of the Court of Criminal Appeal in Cunningham, Byrne J cited with approval Professor C.S. Kenny’s definition of malice in the first edition of his Outlines of criminal law which was published in 1902. What was that definition? 9. In para 33 of its Working Paper No. 23 in April 1969 what did the Law Commission identify as the ‘essential mental element in the existing malicious damage offences’? 10. Following the passing of the Criminal Damage Act 1971, how did the Court of Appeal in R v Briggs [1977] 1 WLR 605 rule on the issue of recklessness for the purposes of this Act?
Criminal law Chapter 5 Mens rea 11. How did the Court of Appeal in R v Parker (Daryl) [1977] 1 WLR 600 modify the definition in Briggs? 12. Lord Edmund-Davies, in his dissenting opinion in Caldwell, cited Professor Glanville Williams who had pointed out in his Textbook on criminal law (1978) at page 79 that the modification in Parker (Daryl) had made no inroad into the concept of recklessness as then understood. What had he said? 13. In the case of R v Stephenson [1979] QB 695 the meaning of ‘reckless’ for the purposes of s.1(1) of the Criminal Damage Act 1971 was again considered by the Court of Appeal. What did the court consider it ‘fair to assume’? 14. What was the Court of Appeal’s view in Stephenson as to the defendant who did not foresee a risk because he was intoxicated? 15. In Caldwell, Lord Diplock said that he preferred the ordinary meaning of ‘reckless’. What did he say that meaning ‘surely includes’? 16. What did Lord Diplock say would be a proper direction to the jury in respect of a person charged with an offence under s.1(1) of the Criminal Damage Act 1971? 17. Lord Edmund-Davies delivered a dissenting speech in Caldwell in which he expressed ‘respectful, but profound disagreement’ with Lord Diplock’s dismissal of Professor Kenny’s statement. He observed: ‘In the absence of exculpatory factors, the defendant’s state of mind is therefore all-important where recklessness is an element in the offence charged.’ He then referred to s.8 of the Criminal Justice Act 1967. What does s.8 provide? 18. In Lawrence (Stephen) [1982] AC 510, decided by the House of Lords the same day that Caldwell was decided, with Lord Diplock being one of the parties to both decisions, Lord Diplock applied essentially the same test, in respect of reckless driving, as laid down in Caldwell in the context of criminal damage, with an addition. What was that addition? 19. What inference did the justices in Elliott v C [1983] 1 WLR 939 make in respect of Lord Diplock’s reference in Caldwell to ‘an obvious risk’ which led to them acquitting C? 20. The prosecution appealed by way of case stated against the decision of the justices. Was the appeal allowed or dismissed? 21. Why was there not an appeal on behalf of C to the House of Lords? 22. At the trial of R v Stephen (Malcolm R) [1984] Cr App R 334, it was submitted on the defendant’s behalf that when considering recklessness the jury could only convict him ‘if he did an act which created a risk…obvious to someone of his age and with such of his characteristics as would affect his appreciation of the risk’. The trial judge ruled against that submission and the defendant appealed against the trial judge’s ruling. What did the Court of Appeal decide? 23. What did Lord Bingham consider to be the ‘starting point’ in the context of the decision which had to be made in relation to G and the other boys in the instant case? 24. What impact did his determination of this question have on his view of the majority decision of the House of Lords in Caldwell? 25. What four reasons, taken together, did Lord Bingham give for rejecting the arguments of counsel for the prosecution that the House of Lords, in determining this case, should not depart from its decision in Caldwell? 26. How did Lord Bingham answer the certified question?
Reminder of learning outcomes By this stage you should be able to:
understand the different types of mens rea
explain the distinction between intention and recklessness.
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5.4 Negligence Essential reading
Wilson, Chapter 6: ‘Mens rea’, Section 6.7 ‘Negligence’.
A person is negligent if he is unaware of the risk in question but ought to have been aware of it or having foreseen it he does take steps to avoid it but those steps fall below the standard of conduct which would be expected of a reasonable person. There are very few offences of negligence. The Sexual Offences Act 2003 has imported an objective element into rape and other sexual offences in that a person must have a reasonable belief that the other is consenting (see Chapter 10). Gross negligence manslaughter is an offence of negligence. The House of Lords in the case of Adomako [1995] 1 AC 171 disapproving Seymour [1983] 2 AC 493 and approving Bateman [1925] 19 Cr App R 8 ruled that ordinary principles of negligence applied for ascertainment of whether or not a defendant had been in breach of a duty of care towards a victim who had died. Where a breach of duty was established, it had to be determined whether that breach had caused the death of the victim. If it had then if the jury found – having regard to the extent to which the defendant’s conduct departed from the proper standard of care and of the risk of death – that the breach of duty should be characterised as gross negligence and therefore a crime they may convict of manslaughter. See also the cases of Willoughby (2004) and Evans (Gemma) [2009] EWCA Crim 650. Evans is considered in Chapters 3 and 6 of this guide and Willoughby is also considered in Chapter 6.
5.5 Coincidence of actus reus and mens rea Essential reading
Wilson, Chapter 8: ‘Relationship between actus reus and mens rea’.
Where an offence requires mens rea the prosecution must prove that the accused had mens rea at the time he did the act (or omitted to act) which caused the actus reus (Jakeman (1982) 76 Cr App R 223). The actus reus and mens rea of a crime must therefore coincide in time. Consider the following example. A drives towards B’s house, intending to kill B when he arrives, but before he gets there, a drunken pedestrian falls off the pavement in front of A’s car giving A – who, we will assume, is driving carefully – no opportunity to stop. When A gets out of the car he discovers that the pedestrian was B and that B is dead. A dances with delight but A is not guilty of murder. He did not have a present intention to kill the pedestrian. He did not know it was B and it makes no difference that he is delighted when he discovers that it was, in fact, B. Where the actus reus of an offence can consist of a continuing act then, provided the defendant had the mens rea for the offence at some time during its continuance, there will be coincidence of actus reus and mens rea (Fagan v MPC [1969]).
Activity 5.6 Go to the Online Library and find the case of Thabo Meli v The Queen [1954] 1 WLR 228 and answer the following questions. 1. What were the facts of the case? 2. To what court did the appellants make their final appeal? 3. What argument did they put forward? 4. What did that court decide?
Criminal law Chapter 5 Mens rea
Activity 5.7 By now, you should be finding it easier to retrieve materials from the databases in the Online Library. Now go back to the Online Library, find the case of Church [1966] 1 QB 59 and answer the following questions. 1. What were the facts of this case? 2. With what offence was the defendant convicted? 3. Why did the Court of Appeal uphold his conviction? The court also stated, obiter, in this case that: … the jury should have been told that it was still open to them to convict of murder, notwithstanding that the appellant may have thought his blows and attempt at strangulation had actually produced death when he threw the body into the river, if they regarded the appellant’s behaviour from the moment he first struck her to the moment when he threw her into the river as a series of acts designed to cause death or grievous bodily harm.
Self-reflection The obiter statement in relation to murder in Church refers to ‘a series of acts designed to cause death’. Can the disposal of what is believed to be a corpse form part of a series of acts ‘designed to cause death’? In Le Brun [1991] 4 All ER 673 there was no antecedent plan and neither was there a belief on the part of the defendant that he was disposing of a corpse. Le Brun had an argument with his wife in the street, during which he knocked her unconscious. He dragged her from the street – either to drag her home or to conceal what he had done. Whilst being dragged she struck her head on the pavement and died. The Court of Appeal upheld Le Brun’s conviction for murder. The court noted that the death in this case was not the result of a preconceived plan which went wrong as had been the case in Thabo Meli. Lord Lane CJ posed the question: Normally the actus reus and mens rea coincide in point of time. What is the situation when they do not? Is it permissible… [as here]… to combine them to produce a conviction for manslaughter?
He referred to Church and went on to say: 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… … [I]n circumstances such as the present… the act which causes death, and the necessary mental state to constitute manslaughter, need not coincide in point of time…
Activity 5.8 Read the extract from Ackner LJ’s judgment in the case of Attorney General’s Reference (No. 4 of 1980) [1981] 2 All ER 617 in your study pack and answer the following questions. a. What ‘single and simple’ question did this reference raise? b. What was the answer to that question? c. How did Ackner LJ say that the jury should have been directed? d. Is it possible that this direction is too favourable to the defendant?
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5.6 Transferred malice Essential reading
Wilson, Chapter 8: ‘Relationship between actus reus and mens rea’, Section 8.1 ‘Introduction’, Part B ‘Definitional occurrence’ .
If A, intending to kill B, kills C having mistaken him for B, the doctrine of transferred malice will apply and A will be guilty of murder. Similarly, if A intends to break the windows of house B but instead accidentally breaks the windows of house C, A will be guilty of criminal damage in respect of house C. The ‘malice’ will be transferred. In Latimer (1886) 17 QBD 359 Lord Coleridge CJ stated: It is common knowledge that a man who has an unlawful and malicious intent against another, and in attempting to carry it out, injures a third person, is guilty of what the law deems malice against the person injured, because the offender is doing an unlawful act, and has that which the judges call general malice, and that is enough.
‘Malice’ will not be transferred where the actus reus achieved is not that which was intended. The actus reus and mens rea must coincide. So, where A shoots at B intending to kill B but misses his target, but the bullet breaks a window the ‘malice’ will not be transferred. A will not be guilty of criminal damage by virtue of the doctrine of transferred malice (Pembliton (1874) LR 2 CCR 119). He will, of course, be guilty of criminal damage if he had the mens rea for criminal damage – i.e. he intended or foresaw a risk of damage to property belonging to another. He is also likely to be found guilty of attempted murder as he intended to kill (see Chapter 6). Lord Mustill in the case of Attorney General’s Reference (No. 3 of 1994) [1997] 3 WLR 421 referred to the doctrine of transferred malice as a ‘fiction’ lacking a ‘sound intellectual basis’. The facts of this case were that the defendant had stabbed a pregnant woman in the abdomen. The woman recovered and no injury to the foetus was detected at the time. The child, however, was delivered prematurely and died within a few days of complications arising out of the premature birth. The defendant was charged with murder but was acquitted, the jury having been directed by the trial judge that no conviction for murder or manslaughter was possible in law.† The prosecution appealed by way of Attorney General’s reference. The Court of Appeal in that case applied the doctrine of transferred malice, saying that malice could be transferred but, on a further appeal to the House of Lords, the House ruled that it could not as it would require a double transfer of malice – i.e. from the mother to the foetus and from the foetus to the child. A conviction for manslaughter by unlawful and dangerous act could, however, lie (see Chapter 7). The principle of transferred malice is relevant in respect of any defences available to a defendant. Where A provokes B and B kills A, on a charge of murder B may plead the partial defence to murder of provocation (see Chapter 6). Similarly, where A provokes B but B accidentally kills C, having aimed his attack at A, B may be charged with the murder of C using the doctrine of transferred malice. Even though it was A and not C who provoked B, B will, nonetheless, be able to plead the defence of provocation. The doctrine of transferred malice may also apply in the case of an accomplice, provided the offence achieved by the principal offender is one to which the doctrine is capable of applying. (Accessorial liability is discussed in Chapter 14.)
†
The offences of murder and manslaughter cannot lie in respect of a foetus as it is not a life in being. The child had, however, been born alive and had a life independent of its mother, albeit for only a short time. It therefore had an independent legal personality and was thus a human being.
Criminal law Chapter 5 Mens rea
5.7 Strict liability Essential reading
Wilson Chapter 7: ‘Strict liability’.
A strict liability offence may be described as an offence where, in relation to one or more elements of the actus reus, neither mens rea nor negligence needs to be proved in order to secure a conviction.
R v Unah (Flora) [2011] EWCA Crim 1837
G [2006] EWCA Crim 821
Note that even an offence of strict liability must be voluntary. Strict liability offences are, in general, statutory offences – many, but not all, of which are regulatory offences seen as ‘quasi-criminal’ and normally punishable only by a fine. See Wilson Chapter 7: Sections 7.2, 7.3. Where the definition of an offence contains a word which imports a mental element (e.g. ‘knowledge’, ‘wilful’, ‘maliciously’, ‘intention’) then it is not an offence of strict liability. Where the statute is silent or ambiguous as to a requirement of mens rea it is a question of interpretation as to whether or not mens rea is a requirement.
5.7.1 Presumption of mens rea There is a presumption that, even where a statute is silent as to mens rea, mens rea is required. In Sweet v Parsley [1970] AC 133 HL Lord Reid said: ‘[I]t is firmly established by a host of authorities that mens rea is an essential ingredient of every offence unless some reason can be found for holding that that is not necessary.’ He also said: ‘[I]t is a universal principle that if a penal provision is reasonably capable of two interpretations, that interpretation which is most favourable to the accused must be adopted.’ In B (a minor) [2000] 2 WLR 452 the House of Lords was robust in its endorsement of the presumption of mens rea. It expressed regret that Parliament did not address its mind, when enacting legislation, to whether mens rea should be a constituent part of the offence and did not state clearly whether mens rea was required in respect of particular offences. Lord Steyn cited Lord Hoffmann in R v Secretary of State for the Home Department, ex parte Simms [1999] 3 WLR 328, who said: In the absence of expressed language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual.
In Muhammed [2002] EWCA Crim 1856 the Court of Appeal rejected the submission that, in order to be compatible with Article 7 of the European Convention on Human Rights, a provision had to be read so as to import a requirement of mens rea. Contracting states were permitted, under certain circumstances, to enact offences of strict liability. See also R v K [2001] UKHL 41.
Activity 5.9 Online research Find the case of Gammon (Hong Kong) Ltd v A–G of Hong Kong [1985] AC 1 PC in the Online Library. Go to Lord Scarman’s speech. What did he say were the five matters to be considered by a court in determining whether the presumption of mens rea had been rebutted by a particular statutory provision? Note that although mens rea may be a requirement for some elements of an offence it may not be a requirement for all of them. See also R v G [2008] UKHL 37.
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R v G involves an offence contrary to the Sexual Offences Act 2003. This offence is not on the University of London Criminal law syllabus but, although you do not need to know the actual offence, you should be aware of what the House of Lords decided in respect of strict liability offences and Article 6 of the European Convention on Human Rights as this is of general application. One of the grounds of the appellant’s appeal was that the conviction violated his right to a fair trial and the presumption of innocence under Article 6 of the European Convention on Human Rights because it was an offence of strict liability. Article 6(1) provides that everyone is entitled to a ‘fair and public hearing’ and Article 6(2) provides that everyone charged with an offence ‘shall be presumed innocent until proved guilty according to law’. The Court of Appeal dismissed his appeal. He appealed, unsuccessfully, to the House of Lords. The House unanimously held that the Article was concerned with the procedural fairness of a trial and not with the substantive law. It is a matter for the domestic legislatures to define the ingredients of offences. The Article is concerned with matter such as the burden of proof in respect of the elements of the offences but not the content. The policy underlying s.5 was the protection of children and the imposition of strict liability in respect of the age of the complainant reinforced that policy.
5.7.2 The statutory context of the words In its determination as to whether a particular offence requires mens rea, the court may look at other provisions in the statute to aid their decision. In Cundy v Le Cocq (1884) 13 QBD 207 the Divisional Court of the Queen’s Bench upheld the defendant’s conviction for selling intoxicating liquor to a person who was drunk. The defendant, who neither knew of nor was negligent as to the customer’s drunkenness had been convicted under s.13 of the Licensing Act 1872 which did not import any specific requirement of mens rea. Because other sections of the statute used the word ‘knowingly’ while s.13 did not, the court came to the conclusion that it had been Parliament’s intention to create an offence of strict liability. A similar approach was adopted in Pharmaceutical Society of Great Britain v Storkwain [1986] 1 WLR 803 and in Cheshire County Council Trading Standards Dept. ex parte Alan Helliwell & Sons (Bolton) Ltd [1991]. Nonetheless, In Sweet v Parsley Lord Reid pointed out that: It is… firmly established that the fact that other sections of the Act expressly require mens rea, for example because they contain the word ‘knowingly’, is not in itself sufficient to justify a decision that a section which is silent as to mens rea creates an absolute offence.
The House of Lords in R v K [2001] rejected the prosecution’s argument that, because other subsections of the section under which the defendant had been charged specified an exonerating mental element, Parliament, in not including those elements in the relevant subjection, must have intended not to include them. The House ruled that there was nothing in the section which clearly indicated the displacement of the presumption of mens rea.†
5.7.3 Subject matter of the offence In Sherras v de Rutzen [1895], where Parliament was deemed to have intended to import a requirement of mens rea, it was said that in order to give effect to the intention of Parliament, it was important firstly, to consider the actual words used in the statute and secondly, to consider the subject matter of the provision. Extrinsic factors should only be considered where Parliament’s intention was not clear from the statute. In Cundy v Le Cocq the court had found that the purpose of the Act was the repression of drunkenness and in Storkwain [1986] the purpose of the offence was to prevent illicit drugs from reaching the market. In both cases this influenced the imposition of strict liability.
†
In R v K the defendant had been charged under s.14 of the Sexual Offences Act 1956 which has now been repealed by s.140 and Schedule 7 of the Sexual Offences Act 2003.
Criminal law Chapter 5 Mens rea The view of Wright J in Sherras was that, apart from ‘isolated and extreme’ exceptions such as Prince’s Case (1875) LR 2 CCR 154 (see now B (a minor) [2000]): … [T]he principal classes of exceptions (to the presumption of mens rea) may perhaps be reduced to three. One is a class of acts which…are not criminal in any real sense, but are acts which in the public interest are prohibited under a penalty… Another class comprehends some, and perhaps all, public nuisances… Lastly, there are many cases in which, although the proceeding is criminal in form, it is really only a summary mode of enforcing a civil right…
In Gammon, Lord Scarman’s view was that the presumption of mens rea was particularly strong where the offence was ‘truly criminal’ in character (i.e. they were not acts described by Wright J as ‘acts which are not criminal in any real sense’). Where an offence is ‘truly criminal’ it is likely to attract a severe penalty and ‘social obloquy’ and courts will often apply the presumption and find that Parliament intended to import a requirement of mens rea. See Sweet and Parsley, Alphacell v Woodward [1972] and B (a minor). This, however, will not always be the case. In Gammon the Privy Council imposed strict liability for an offence for which the maximum penalty was a fine of $HK 250,000 and three years’ imprisonment. Similarly, in Howells [1977] the Court of Appeal justified its decision that unlawful possession of a firearm contrary to s.1 of the Firearms Act 1968 was a strict liability offence by pointing out that the danger to society posed by the possession of lethal firearms was so obviously great that an absolute prohibition on possession must have been the intention of Parliament. This offence carried a maximum penalty of three years’ imprisonment. See also Hussain [1981]. The possibility of damage to the public and the burden on the prosecution of proving mens rea are factors which the court will take into account when deciding whether the presumption of mens rea is rebutted (see Alphacell v Woodward [1972]). However, to rebut the presumption of mens rea it is not enough that the offence is one of grave social concern, such as public safety. It must also be shown that strict liability would promote the objects of the statute by, for example, encouraging greater vigilance (see Gammon [1984] and Lim Chin Aik v R [1963]).
Self-reflection Read Article 6 of the European Convention on Human Rights in your study pack. In Sweet v Parsley [1970] Lord Reid expressed the view that: ‘… there are many kinds of case where putting on the prosecutor the full burden of proving mens rea creates great difficulties and may lead to many unjust acquittals…’. He considered the possibility of Parliament reversing the burden of proof as to mens rea so that once the facts were proved the onus would be on the defendant to prove on balance of probabilities that he ‘was innocent of any criminal intention’ and went on to say that he found it a little surprising that ‘more use has not been made of this method: but one of the bad effects of the decision of this House in Woolmington v DPP [1935] AC 462 may have been to discourage its use’. Do you agree with Lord Reid? Do you think if Parliament adopted Lord Reid’s suggested method this would be in breach of Article 6 of the European Convention on Human Rights?
Summary Criminal liability for most serious offences requires proof of either intention or recklessness. The requisite mental element may relate to: the defendant’s conduct, the relevant circumstances and/or (for result crimes) the consequences. It is important that you consider the definition of any offence very carefully in order to ascertain what the mens rea is for that particular offence. For a very few offences, negligence on the part of the defendant is sufficient to found liability. Note that there must be coincidence of actus reus and mens rea before there can be liability for an offence.
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University of London International Programmes Where a statute is silent or ambiguous as to a mens rea requirement, the presumption is that mens rea is required. This presumption, however, is rebuttable. Although there is some inconsistency in decisions (and although there is no single test a court will apply in deciding whether the presumption is displaced), in its determination as to whether mens rea is required in respect of a particular offence where the statute is silent or ambiguous the court may consider:
the statutory context within which the section or sections to be interpreted lie
the social context of the offence
the seriousness of the offence
the severity of punishment.
Sample examination question ‘The surest test of a new legal rule is not whether it satisfies a team of logicians but how it performs in the real world. With the benefit of hindsight the verdict must be that the rule laid down by the majority in Caldwell failed this test… Experience suggests that in Caldwell the law took a wrong turn.’ Lord Steyn in R v G [2004] Discuss.
Advice on answering the question The following advice consists of points you might note when considering this question. In your essay you would be expected to critically examine the development of the law in this regard in the context of what Lord Steyn said in the quote you are asked to discuss.
Introduction Your introduction should set out the ambit of your essay. You should explain that ‘recklessness’, which is the mens rea for a number of basic intent crimes, is the taking of an unjustifiable risk. For a number of years, following the House of Lords’ ruling in Caldwell [1982] a different test of recklessness was applied to the offence of criminal damage to that applied to other offences of recklessness. Set out briefly the Caldwell test for recklessness and explain what changes the House of Lords made in R v G. Note that the issue in the question arises in relation to the second limb of the Caldwell test. The Caldwell test attracted much criticism during the 21 years in which it represented the law. Nonetheless, it also had its supporters who would not agree with Lord Steyn that the law ‘took a wrong turn’. You should now critically analyse the arguments which have been made both for and against the appropriateness of the Caldwell test for recklessness, some of which are set out briefly below. (You might now re-read Lord Bingham’s speech from R v G, which is in your study pack, where all of these arguments are considered in more detail.) At the same time, consider and, where appropriate, address Lord Steyn’s comments about the test of a legal rule in the context of ‘logicians’ and ‘the real world’. Consider the fairness or otherwise of the test in the particular context of the cases of Elliott v C [1983], R v Stephen (Malcolm R) [1984] and the facts of the case of R v G itself.
Arguments for and against the Caldwell test for recklessness The evolution of the Criminal Damage Act 1971: Did the House of Lords in Caldwell merely misconstrue s.1 of that Act? Consider the Law Commission Working Paper where the decision in Cunningham [1957] was cited with approval. Lord Diplock said in Caldwell that he was simply applying the natural dictionary meaning of the word ‘reckless’ which imports the state of mind of carelessness ‘…regardless or heedless of the possible harmful consequences of one’s acts’. Inadvertence/advertence: Lord Diplock in Caldwell was of the view that blameworthiness in relation to conduct should not be limited to those situations where a defendant realises that a prohibited consequence could occur. He thought that inadvertence was as blameworthy as advertence. What were his reasons for this?
Criminal law Chapter 5 Mens rea In Caldwell, the House of Lords was considering the mental element of a person who was intoxicated and claimed he did not foresee a risk of endangerment to life as the result of his criminal damage. What, however, of the person who either lacks the capacity to foresee a risk or for reasons which are not, in themselves, blameworthy fails to appreciate such a risk? Consider the cases of Elliott, Stephen (Malcolm R) and G. Is it fair that people should be deemed to be blameworthy because of inadequacies over which they have no control? Consider the pre-Caldwell decision in the case of Stephenson [1979]. Alternatively, could it be argued that one of the functions of the law is setting standards of behaviour and protecting the public and that these aims should take precedence over the blameworthiness of an individual? The modern development of mens rea tends towards a subjective assessment of a defendant’s state of mind but the ‘objective’ element of Caldwell recklessness does not reflect the state of mind of the defendant who has given no thought to a risk. Lord Diplock expressed the view that the application of ‘subjective’ recklessness may not always be practicable as it requires a meticulous analysis of a defendant’s state of mind and could make it difficult for a jury to be sure of a defendant’s guilty beyond reasonable doubt. Nevertheless, despite the need for a ‘meticulous analysis’ of a defendant’s state of mind for other offences of recklessness and, indeed, for crimes requiring proof of intention there is no evidence that juries have particular difficulties with ‘subjective’ tests resulting in significant numbers of unjust acquittals. There was considerable ‘shopfloor’ criticism of the decision in Caldwell which Lord Bingham thought should not be ignored. Why should academic and judicial criticism influence the House of Lords? Deal directly with the issue raised in the question, supporting your conclusion with some of the arguments outlined in your essay.
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Reflect and review Look through the points listed below: Are you ready to move on to the next chapter? Ready to move on = I am satisfied that I have sufficient understanding of the principles outlined in this chapter to enable me to go on to the next chapter. Need to revise first = There are one or two areas I am unsure about and need to revise before I go on to the next chapter. Need to study again = I found many or all of the principles outlined in this chapter very difficult and need to go over them again before I move on. Tick a box for each topic. Ready to move on
Need to revise first
Need to study again
I understand the different types of mens rea.
I can explain the distinction between intention and recklessness.
I can ascertain what mens rea requirements are relevant to the particular offence you are dealing with.
I can explain the principles of coincidence of actus reus and mens rea.
I can explain the notion of basic, specific and ulterior intent.
I can explain the rules relating to transferred malice and know where they apply.
I can explain why negligence is not a form of mens rea.
I can give a coherent account of some of the arguments in favour of and against the imposition of strict liability.
If you ticked ‘need to revise first’, which sections of the chapter are you going to revise? Must revise
Revision done
5.1 Mens rea
5.2 Intention
5.3 Recklessness
5.4 Negligence
5.5 Coincidence of actus reus and mens rea
5.6 Transferred malice
5.7 Strict liability
Before you continue to the next topic listen again to audio presentation 6 to recap and consolidate what you have learnt.
6
Unlawful homicide: murder and manslaughter
Contents Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .66 6.1
Homicide in context . . . . . . . . . . . . . . . . . . . . . . . . . . . .67
6.2
The distinction between murder and manslaughter . . . . . . . . . . . .68
6.3
The actus reus of murder and manslaughter . . . . . . . . . . . . . . . .69
6.4
The mens rea of murder . . . . . . . . . . . . . . . . . . . . . . . . . .72
6.5
Involuntary manslaughter . . . . . . . . . . . . . . . . . . . . . . . . .72
6.6
Proposed reforms . . . . . . . . . . . . . . . . . . . . . . . . . . . . .79 Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . .82
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Introduction There is no offence of ‘homicide’ as such. A person cannot be charged with or convicted of ‘homicide’. Homicide means the killing of a human being and may be lawful – where, for example, fatal force was necessary to defend oneself. The two most important offences of unlawful homicide are murder and manslaughter. Although both are common law offences, elements of murder and manslaughter have been modified by Acts of Parliament and the penalties for each are statutory. Until 1957, murder (the more serious of the two offences) was a capital offence – that is, a sentence of death automatically followed conviction. The Homicide Act 1957 drew a distinction between degrees of murder – capital and non-capital murder – and provided that non-capital murder was to be punished with a life sentence. The distinction proved unsatisfactory and the death penalty was abolished by the Murder (Abolition of Death Penalty) Act 1965. All those convicted of murder in England and Wales are now sentenced to life imprisonment. The penalty for manslaughter is at the discretion of the judge, with s.5 of the Offences Against the Person Act providing that the maximum sentence is life imprisonment. Murder and manslaughter share a common actus reus – the unlawful killing of a human being. The distinction between the offences is complicated by the fact that there are various forms of manslaughter. Murder and ‘involuntary manslaughter’ differ in terms of the mens rea or fault element required. Murder and ‘voluntary manslaughter’ are distinguished not in terms of mens rea but by the presence of one of three mitigating defences – provocation, diminished responsibility and suicide pact. In this chapter the common elements of murder and manslaughter are considered, as are the fault elements of murder and involuntary manslaughter. The three forms of voluntary manslaughter are the subject matter of Chapter 7.
Essential reading and listening
Wilson, Chapter 13: ‘Homicide’.
Audio presentation 7.
Learning outcomes By the end of this chapter and the relevant readings you should be able to:
explain and apply to factual situations the actus reus elements of murder and manslaughter
explain and apply to factual situations the mens rea of murder and the fault elements of the various forms of involuntary manslaughter:
manslaughter by an unlawful and dangerous act
manslaughter by gross negligence
reckless manslaughter
describe the proposals for reform of the law relating to murder and involuntary manslaughter.
Criminal law Chapter 6 Unlawful homicide: murder and manslaughter
6.1 Homicide in context Essential reading
Wilson, Chapter 13: ‘Homicide’, Section 13.1 ‘Introduction’ and Section 13.2 ‘Meaning of homicide’.
In England and Wales, the incidence of offences of homicide is relatively low. Of the approximately 1 million violent crimes in England and Wales recorded by the police in 2009–2010, homicides accounted for less than 0.1 per cent (619 deaths) (The British Crime Survey 2009–10 HOSB 2010). Nevertheless crimes of homicide, and especially murder, are regarded as the most serious and abhorrent crimes. The taking of life and the impact that it can have on the family and friends of the victim give a special significance to offences involving the killing of another human being. The seriousness with which they are regarded is reflected in the maximum penalties. In the case of murder, the Murder (Abolition of Death Penalty) Act 1965 stipulates a mandatory sentence. The judge has no option but to sentence the person convicted of murder to a term of imprisonment for life. Section 269 of the Criminal Justice Act 2003 requires the trial judge to state the minimum term that the convicted murderer should serve before he or she is eligible to be released on licence. This should reflect the seriousness of the murder and should be set by reference to one of three starting points: whole life, 30 years and 15 years. Whole life terms should be recommended where, for example:
there was more than one victim and the murder of each involved a substantial degree of premeditation or planning
the victim was a child and the child had been abducted
there was a sexual or sadistic motivation to the killing.
In February 2010 there were 34 prisoners serving whole life terms. A starting point of 30 years would be appropriate in cases where, for example, the victim was a police officer acting in the course of his or her duty or firearms or explosives were used. A starting point of 15 years is used where the longer terms are not considered appropriate for the case. Having chosen the starting point, the judge is required to fine tune the minimum term to be served by considering any additional aggravating or mitigating factors. When the minimum term has elapsed the prisoner may be considered by the Parole Board for release on licence. And even where a convicted murderer is released on licence, he or she may be recalled by administrative action if there is a breach of the conditions of the licence. So although the mandatory penalty may not mean that persons convicted of murder spend the rest of their life in prison, the sentence continues for their entire life. Where a person is convicted of manslaughter, s.5 of the Offences Against the Person Act 1861 provides that the maximum penalty is a discretionary life sentence. Of those convicted of manslaughter in 2008/9, just under 4 per cent received a life sentence. Eighty per cent received other custodial sentences, the majority of which were for less than four years (39 per cent of all sentences). Hospital orders (with or without restrictions) were imposed on the majority of the remaining offenders (14 per cent). Although the penalties for murder and manslaughter are provided for by statute, and although elements of the offences have been modified by a number of Acts of Parliament the definitions of the offences are still to be found at common law.
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6.2 The distinction between murder and manslaughter Both murder and manslaughter share a common actus reus, defined by Sir Edward Coke in the seventeenth century and discussed below. How then do the offences differ? What makes murder the more serious offence? The answer is not straightforward because, although there is only one offence of manslaughter, it takes various forms. There are two basic categories of the offence – ‘involuntary manslaughter’ and ‘voluntary manslaughter’.
6.2.1 Murder and involuntary manslaughter Murder and the various forms of involuntary manslaughter differ with respect to the mental element required. As we shall see, murder requires proof of an intention to kill or cause grievous bodily harm whereas each of the forms of involuntary manslaughter is satisfied on proof of a less culpable level of mens rea or fault. Under the current law there are three situations where an unintentional killing can give rise to criminal liability for involuntary manslaughter.
Manslaughter by an unlawful and dangerous act – ‘constructive manslaughter’ This form of the offence is committed where D unintentionally and unforeseeably kills another person having committed an unlawful act which was in an objective sense likely to cause some bodily harm.
Manslaughter by gross negligence This form of manslaughter is satisfied on proof that the defendant’s conduct which caused the death of the deceased amounted to a breach of duty owed towards the deceased and was so serious as to justify the imposition of criminal liability for manslaughter.
Reckless manslaughter This type of manslaughter requires that the defendant deliberately took an unjustified risk of causing serious injury.
6.2.2 Murder and voluntary manslaughter The difference between murder and voluntary manslaughter is not one of mens rea. The person guilty of this category of manslaughter killed another person, intending to kill or cause grievous bodily harm (GBH), and would be guilty of murder but for the presence of one of three defined mitigating defences which reduces his criminal liability to that of manslaughter. There are three forms of voluntary manslaughter:
Where the killing resulted from a loss of self-control Sections 54 and 56 of the Coroners and Justice Act 2009 abolished the common law partial defence of provocation and replaces it with a new partial defence to murder where the killing resulted from a loss of self-control attributable to a ‘qualifying trigger’.
Manslaughter by diminished responsibility Section 2 of the Homicide Act 1957 provides that liability is reduced from murder to manslaughter if, at the time of the killing, D was suffering from diminished responsibility. The definition in s.2 of the Homicide Act was substituted by a new definition in s.52 of the Coroners and Justice Act 2009 The defences of ‘loss of self-control’ and ‘diminished responsibility’ are covered in Chapter 7.
Criminal law Chapter 6 Unlawful homicide: murder and manslaughter Manslaughter by suicide pact Section 4 of the Homicide Act 1957 provides that it is manslaughter and not murder for a person acting in pursuance of a suicide pact to kill another.
6.3 The actus reus of murder and manslaughter Essential reading
Wilson, Chapter 13: ‘Homicide’, Section 13.3 ‘Punishing homicide’.
The definition written in the early seventeenth century by the Chief Justice of the time, Sir Edward Coke (1552–1634), in his Institutes of the laws of England is still the basis of the current law. This provides that the actus reus is committed if D ‘unlawfully killeth any reasonable creature in rerum natura under the Queen’s peace’.
‘Unlawfully’ The requirement that the killing is unlawful excludes those killings resulting, for example, from the use of reasonable force in self-defence. And in Re A (children) [2000] 4 All ER 961 the Court of Appeal held that an operation to separate conjoined twins in order to save the life of the stronger was not unlawful even though it would inevitably result in the death of the weaker.
‘Killeth’ This refers to the requirement that D’s acts are a legal cause of death. For further discussion of causation see Chapter 4. Note that it is only necessary to show that D accelerated the death of V, not that V would have lived without the injury perpetrated by D. So even if V is suffering from terminal cancer, D will be liable if he fatally stabs V. In Re A (children), it was held that although the weaker twin, Mary, would inevitably have died within weeks or months whether or not an operation to save her sister Jodie was carried out, the operation would nevertheless amount to a legal cause of death of Mary. Ward LJ explained: I appreciate, of course, that in one sense Mary will die because she is simply incapable of living. She is not a viable child. But as she is alive at the time the operation is undertaken, the operation serves to hasten her inevitable death just as the lethal injection accelerates the death of a patient at a terminal stage. So I do not see how, in law, the severance of the artery will not be treated as a cause of her death.
Ordinarily, the question whether the victim is dead is not problematic. The usual criterion which determines death is the cessation of the cardiopulmonary system, i.e. the absence of heartbeat and breathing. Modern technology, however, enables patients to be kept alive in the sense that they are conscious and lucid even though their respiratory functions have ceased. And the same technology makes it possible to keep the heart and lungs functioning when the person has very little or no brain function. Is a person in such a condition alive or dead? The medical view was expressed by the Conference of Royal Medical Colleges (1979) 1 BMJ 332 that once there has been an irreversible cessation of the brain stem a person will be regarded medically as dead even where they are being mechanically ventilated. The brain stem controls the body’s semi-autonomous movements, like breathing, reflex actions and the beating of the heart. It is relatively resistant and will often continue to function after interruption to the supply of oxygen to the brain while other parts of the brain will be damaged irreparably. If the brain stem continues to function the heart will continue to beat and the lungs will inhale and exhale although parts of the brain responsible for cognition may not function. This comatose condition short of brain stem death is known as persistent vegetative state (PVS) and does not legally amount to death. A PVS patient is alive and must not be confused with the patient who is brain stem dead. Although there is no statutory definition of death in England this distinction has been accepted by the House of Lords. See the case of Airedale NHS Trust v Bland [1993] 1 All ER 821.
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University of London International Programmes The medical definition of death was considered in R v Malcherek; R v Steel [1981] 2 All ER 422. The victims of two separate serious attacks had been placed on life-support machines. In each case the doctors concluded that as the victim’s brain had ceased to function the machine should be disconnected. At the trials of each of the defendants the judge, after hearing submissions from counsel, decided to withdraw from the jury the issue of the cause of the victim’s death, on the ground that at the time of death the original injuries inflicted on the victim were an operating cause of death and that it was not open to the jury to conclude that the accused had not caused the death of his victim. Both defendants were convicted of murder. On appeal they contended that the in each of these two cases the doctors did not carry out all the tests for establishing brain death and that the jury should have been allowed to consider whether the cause of death in each case was the switching off of the life-support machine.
Activity 6.1 Read the extract from the judgment in Malcherek and Steel [1981] 2 All ER 422 in the study pack and consider the questions below. a. Did the Court of Appeal adopt the medical test of brain stem death? b. Why was it not necessary to give legal backing to the medical definition of death?
‘Any reasonable creature in rerum natura’ The killing must be of ‘any reasonable creature in rerum natura’ – that is, a human life in being. In addition to considering what level of brain damage marks the end of life the courts have considered when life as a human being begins. The issue is determined by whether the newborn child has an independent existence of its mother, and it is generally accepted that this will be the case when either it has an independent circulation or it has breathed after birth. Thus, it is not murder nor is it manslaughter to kill a foetus in the womb or in the process of leaving the womb. Nor is it murder or manslaughter if the foetus is injured in the womb and emerges stillborn (i.e. born dead). But it may amount to unlawfully procuring a miscarriage contrary to s.58 of the Offences Against the Person Act 1861 or the offence of child destruction contrary to s.1 of the Infant Life (Preservation) Act 1929 if, at the time of the injury, the foetus was capable of being born alive. A foetus becomes a human being when two conditions are satisfied.
The entire body of the child must have emerged from the body of the mother.
The child must be alive and have an existence independent of the mother.
However, if the defendant injures the foetus while it is still in the womb but it is born alive and the baby then dies of the injuries sustained while in the womb, that does amount to the killing of a human being. But although this amounts to homicide, there is a problem with convicting of murder in such circumstances. That is, murder requires proof of an intention to kill or cause serious injury to a human being and the foetus is not, as we have seen, a human being. So if the defendant intended the foetus to die in the womb he will lack the mens rea for murder. It is only in the rather unlikely circumstances where the defendant inflicted the injury intending that the child should die of the injuries after birth or cause it to suffer serious injury after birth that he or she may be convicted of murder. And, following the decision of the House of Lords in the Attorney General’s Reference (No. 3 of 1994) [1993] 1 AC 789 it is only where the original injuries were targeted against the foetus and not its mother that the defendant may be convicted of murder. D stabbed his pregnant girlfriend in the back. No injury to the foetus was detected but it was born prematurely and died four months later from a lung condition attributed
Criminal law Chapter 6 Unlawful homicide: murder and manslaughter to her premature birth. The House rejected the argument that the foetus could be regarded as part of the mother so that an intention to cause grievous bodily harm to the mother was equivalent to the same intent directed towards the foetus. The House also rejected the second of the Crown’s arguments that the intent towards the mother could be transferred towards the child, on the ground that this required a double ‘transfer’ of intent first from the mother to the foetus and then from the foetus to the child. Rather strangely, although the House rejected the argument when considering murder, it adopted it when considering the defendant’s liability for manslaughter. The House held that all that it is required for constructive manslaughter is an unlawful and dangerous act leading to death, in circumstances where it was foreseeable that it might hurt anyone at all. It was unnecessary to prove that D knew that his act was likely to injure the person who died as a result of it or intended to injure that person.
Activity 6.2 In Re A (Children) the question arose as to whether Mary was ‘a reasonable creature in rerum natura’. Read the extract in the study pack and then consider the following questions: a. According to the medical experts, if Mary had not been joined to Jodie would she have been born alive? b. Despite her reliance on Jodie, Mary was regarded as a separate individual. Why? c. Is a conjoined twin a ‘reasonable creature’?
‘Within the Queen’s peace’ Quite simply, this refers to the fact that it is neither murder nor manslaughter to kill an alien enemy in the heat of war. But, of course, it is murder to kill enemy soldiers who have been captured or surrendered. And note that by s.9 of the Offences Against the Person Act 1861 and s.3 of the British Nationality Act 1948 murder or manslaughter committed by a British citizen outside the United Kingdom may be tried and punished in England.
‘Within a year and a day’ There used to be a rule, dating from the sixteenth century, that only if the death of V followed within a year and a day of D’s attack could the death be attributed to D’s attack. The original justification for the rule was based on the fact that it was often difficult to identify the cause of death where a considerable period of time had elapsed between the attack and the death. Where more than a year and a day had elapsed there was, in effect, an irrebuttable presumption that the death was not caused by the attack. In 1994 the Law Commission, in the light of advances in medical science making it possible to determine the cause of death and to keep patients alive for long periods, recommended its abolition. (‘The year and a day rule’ in Homicide consultation paper No. 136, 1994.) The recommendation was implemented in 1996 by the Law Reform (Year and a Day Rule) Act 1996, s.1. Now a person can be charged and convicted of murder or manslaughter irrespective of the amount of time between the fatal attack and the death of the victim. It is of course still necessary to prove that the attack was a legal cause of V’s death.
Activity 6.3 Using the Online Library locate the Law Reform (Year and a Day Rule) Act 1996. When may proceedings for a fatal offence only be instituted with the consent of Attorney General?
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Summary Both murder and manslaughter require proof that D unlawfully killed a human being. Thus, the killing of a foetus in the womb is neither murder nor manslaughter. And, although there is not yet a legal definition of death, persons suffering from conditions short of brain death are recognised legally as being alive. It is only necessary to show that the acts or omissions of D accelerated the death of V and it is no longer necessary that death followed within a year and a day.
6.4 The mens rea of murder Essential reading
Wilson, Chapter 13: ‘Homicide’, Section 13.4 ‘Murder’.
The mental element in murder is known by the misleading term ‘malice aforethought’. It is misleading because there is no requirement that the killing was ‘premeditated’ or ‘with aforethought’ and it is also misleading because ‘malice’ does not accurately describe the mental element of the offence. And thus, while the term is still used, the modern formulation of the mens rea of murder is an intention to kill or cause GBH (Moloney [1985] AC 905).
6.4.1 The meaning of intention The meaning of intention was considered in an earlier chapter. Following the decision of the House of Lords in Woollin [1999] 1 Cr App R 8 as applied in Matthews and Alleyne [2003] 2 Cr App R 30 the law can be summarised as follows.
If D’s aim or purpose was to kill or cause GBH then D intended to kill or cause GBH. If it was not his aim or purpose but he knew that death or GBH was virtually certain to result from his actions then the jury are entitled but not obliged to find that he intended to kill or cause GBH.
If D foresaw a risk of death or GBH but at a level lower than virtual certainty – for example, he foresaw that death or GBH was probable – then that is not sufficient to amount to an intention to kill or cause GBH.
6.4.2 An intention to cause grievous bodily harm It is well established that an intention to cause grievous bodily harm – really serious harm – will suffice for murder (Vickers [1957] 2 QB 664; Cunningham [1982] AC 566). As we shall see later, this aspect of the mens rea has been subject to considerable academic and judicial criticism. (To give you an idea of the criticisms you might like to read the study pack extract from Lord Steyn’s speech in Powell and Daniels; English [1999] 1 AC 1.)
6.5 Involuntary manslaughter Essential reading
Wilson, Chapter 13: ‘Homicide’, Section 13.7 ‘Involuntary manslaughter’.
6.5.1 Manslaughter by an unlawful and dangerous act (‘constructive manslaughter’) There are three elements to this form of manslaughter. It must be proved that:
the defendant intentionally performed an unlawful act
the unlawful act was dangerous
the unlawful act caused death.
Criminal law Chapter 6 Unlawful homicide: murder and manslaughter The requirement of an unlawful act The essence of constructive crime is that liability for one offence is based upon the commission of another less serious offence. Thus, liability for this form of manslaughter is constructed upon an ‘unlawful act’ which D committed and which is causally related to the death. It is not every unlawful act, however, that will suffice for constructive manslaughter. In Franklin [1883] it was held that a civil wrong is insufficient and it was settled by the House of Lords in Andrews [1937] that an offence whose basis is negligence is not an unlawful act for the purposes of constructive manslaughter. An omission will not suffice – see Lowe [1973] – although it may give rise to liability for manslaughter by gross negligence. Most commonly the base crime upon which liability is constructed will consist of an assault or battery, but it need not. In Goodfellow [1986] an offence of criminal damage sufficed and, in Watson [1989], the Court of Appeal held that liability might be constructed upon a burglary contrary to s.9(1)(a) of the Theft Act 1968. Is it necessary that the prosecution prove all the elements of the crime upon which liability for manslaughter is constructed? Although there are a couple of decisions – e.g. Cato [1976] and DPP v Newbury [1977] – which imply that a person may be convicted of manslaughter without proof of all the elements of the base crime it is generally accepted that the better approach is demonstrated by the case of Lamb (1967), a case in which D accidentally shot his friend. See also Jennings [1990].
Activity 6.4 Read the extract from Lamb in the study pack. Why, according to Sachs J, was Lamb not guilty of manslaughter by an unlawful act?
Dangerousness What is meant by ‘dangerous’ in this context? How is the court to determine whether the act was a dangerous one? In Church [1966], Lord Edmund-Davies, delivering the judgment of the Court of Appeal, said that for the purposes of constructive manslaughter an unlawful act is dangerous if ‘all sober and reasonable people’ would inevitably recognise that the unlawful act subjected the victim to the risk of some harm, albeit not serious harm (see also Newbury [1977]). The test is an objective one; it is not necessary to prove that the defendant knew that his conduct carried the risk of harm (Lipman [1970]). However, it was decided in Dawson [1985] that the objective test should be applied in the context of the circumstances known to the accused. And so if the accused is unaware of a peculiar vulnerability of the victim, then the ‘sober and reasonable man’ is also taken to lack this knowledge in assessing whether the conduct was objectively dangerous. Dawson was applied in Carey [2005] but distinguished in Watson [1989] and Ball [1989]. Watson burgled the home of an 87-year-old man late at night. The man lived alone and suffered from a serious heart condition. He was woken up by the appellant and his accomplice and verbally abused. An hour and a half after the burglary, the man had a heart attack and died. The Court of Appeal held that the knowledge of his victim to be attributed to the reasonable man for the purposes of this element of constructive manslaughter was not limited to the knowledge which the defendant acquired when he first entered the house but included knowledge gained during the course of the burglary. Ball loaded a gun with a cartridge which he took out of his pocket and fired it at V, killing him. The pocket contained live and blank cartridges and Ball claimed that he intended and believed that the cartridge he loaded was blank. The Court of Appeal
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The unlawful act was a legal cause of death This issue is resolved in accordance with ordinary principles of causation discussed earlier in this guide.
6.5.2 Manslaughter and the administration of drugs Essential reading
Wilson, Chapter 5: ‘Causation’, Section 5.6 ‘Particular examples of casual sequences giving rise to causation problems’.
In Cato (1976) it was held that if D injects V with a drug, he will be guilty of manslaughter by an unlawful act if V dies as a result, even if the drug was selected and prepared by V and injected with his consent. The unlawful act in such cases is the offence of unlawfully and maliciously administering or causing to be administered a noxious thing so as to endanger life contrary to s.23 of the Offences Against the Person Act 1861. But what is the position where the defendant does not actually perform the injection; where, for example, the defendant supplies the drug to a user who consumes it or self injects it and dies from the effects? In Dalby [1982] the defendant had supplied the deceased, O’Such, with Diconal† tablets. O’Such injected the drugs and returned home to his flat where he fell into a coma and died. Dalby was prosecuted for manslaughter and convicted on the basis that his supply of the Diconal tablets was an unlawful and dangerous act which caused the death of O’Such. The Court of Appeal allowed Dalby’s appeal on the basis that the act of supply itself was not an act directed at the victim and did not cause direct injury. Later decisions of the Court of Appeal in Mitchell [1983] and Goodfellow [1986] and the House of Lords in Attorney General’s Reference (No. 3 of 1994) have held that there is no need for the unlawful act to be aimed at the victim and the decision in Dalby has been explained on the ground that there was no causal link between the supply and the death of O’Such. However, in a series of controversial decisions the Court of Appeal held that a defendant might be guilty of manslaughter even where V self-injected. In Kennedy [1999] the defendant prepared and gave the deceased a syringe containing heroin. The deceased injected himself. The heroin affected his breathing and he died as a result. The Court of Appeal dismissed Kennedy’s appeal against conviction for manslaughter on the basis that, as he had actively assisted and encouraged the deceased, he was liable as a secondary party to V’s unlawful self-injection. The ruling attracted widespread criticism on the basis that there can be no secondary liability without a principal offender. Although possession of heroin is an offence, it was the self-injection and not possession which caused the deceased’s death, and selfinjection of heroin is not an offence. In Dias (2001), a case involving similar facts to those in Kennedy, the Court of Appeal agreed that the analysis in Kennedy was flawed but added that there might be situations where the supplier of the drug is guilty of manslaughter as a principal. In Rogers (2003), the appellant held a tourniquet to deceased’s arm while the deceased injected himself with heroin. The dose of heroin proved lethal. In this case the Court of Appeal, whilst agreeing that self-injection was not an unlawful act, held that D had ‘actively participated’ in the mechanics of injection and thus had committed an offence contrary to s.23. As this was a dangerous act he was guilty of manslaughter by an unlawful act. The problem with this decision is that it gives an
†
Diconal is a combination of the anaesthetic opioid dipipanone hydrochloride and the antihistamine cyclizine.
Criminal law Chapter 6 Unlawful homicide: murder and manslaughter extremely wide meaning to the term ‘administered’. The injection was the voluntary decision of the deceased and, although the defendant assisted, it is hard to see how his contribution could be regarded as amounting to administration. In Finlay (2003) the Court of Appeal considered whether a person who prepares a syringe of a controlled drug and gives it to another person who self-injects might be convicted of manslaughter if the latter dies. The Court based its analysis on the form of the s.23 offence of causing a noxious thing to be administered rather than the straightforward administration of a noxious thing. The Court held that it was a question for the jury whether the defendant had caused the substance to be administered and it was not necessary to prove that the defendant’s actions were the sole cause nor the immediate cause of the deceased injecting heroin. Furthermore, the Court held that the fact that victim had injected himself did not necessarily break the chain of causation. The Court of Appeal made reference to the decision of the House of Lords in Environment Agency v Empress Car Company (1999) in which it was held that the independent act of a person only broke the chain if it was an extraordinary occurrence rather than a ‘normal fact of life’. On the facts of Finlay the jury were entitled to conclude that the self-injection of the drug by the deceased was an ordinary occurrence. The decision in Kennedy was referred to the Court of Appeal for reconsideration by the Criminal Cases Review Commission – Kennedy (No.2) (2005). Lord Woolf, delivering the judgment of the Court, reviewed the first appeal, and the decisions in Dias, Richards, Rogers and Finlay. He agreed that the decision in the first appeal by Kennedy was flawed. The supplier of the drug could not be regarded as an accessory. But the appeal was nonetheless dismissed. Dismissing the approach taken in Finlay as ‘unnecessarily sophisticated’ the Court, attempting to sidestep the issues of causation, held that Kennedy and the deceased were carrying out a ‘combined operation’ for which they were jointly responsible. The self-injection by V did not break the chain of causation between the act of D and V’s death as the parties were acting in concert. The House of Lords allowed Kennedy’s appeal. The House reviewed the earlier decisions and held, firstly, that Finlay was wrongly decided. There is a well established principle of English law that a free and voluntary act of a person with full capacity is not regarded as having been caused by another and thus: D is not to be treated as causing V to act in a certain way if V makes a voluntary and informed decision to act in that way rather than another.
Thus where V self-injects, it is not appropriate to regard the supplier of the drug as having caused the drug to be administered. The prosecution were therefore restricted to arguing that the drug was administered by Kennedy. Again the logical conclusion of the fact that the deceased’s decision to self-inject was free and voluntary was that the heroin was not administered by the defendant. D may have encouraged or assisted the deceased to inject himself but he did not administer the drug. Rogers was also wrongly decided. Finally the House rejected the analysis of the Court of Appeal in Kennedy’s second appeal. This was not a case of a ‘combined operation’ for which Kennedy and the deceased were jointly responsible. The deceased… had a choice, knowing the facts, whether to inject himself of not. The heroin was, as the certified question correctly recognises, self-administered, not jointly administered.
Where a person freely and deliberately injects himself neither that act nor its consequences are attributable to the supplier. This is in accordance with the general principle that the free deliberate and informed acts of an individual initiate a fresh
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Activity 6.5 Using the Online Library, find the decision of the House of Lords in R v Kennedy [2008] 1 AC 269. What was the certified question of general public importance considered by the House? What short answer was given to the question in para 25 of the judgment?
6.5.3 Manslaughter by gross negligence Essential reading
Wilson, Chapter 13: ‘Homicide’, Section 13.7 ‘Involuntary manslaughter’, Part C ‘Manslaughter by breach of duty’.
The negligent killing of another human being has for a long time given rise to liability for manslaughter but whereas, in the early history of the offence, any degree of negligence would suffice, the modern approach requires proof of a high degree of negligence – gross negligence. In Andrews v DPP [1937] 2 All ER 552 Lord Atkin noted: [In the older cases] expressions will be found which indicate that to cause death by any lack of due care will amount to manslaughter, but, as manners softened and the law became more humane, a narrower criterion appeared. After all, manslaughter is a felony, and was capital, and men shrank from attaching the serious consequences of a conviction for felony to results produced by mere inadvertence.
The difficulty the courts have faced is to define, in a way which juries might find easy to apply, the level of negligence required. In Bateman (1925) 19 Cr App R 8 Lord Hewart LCJ observed: In explaining to juries the test which they should apply to determine whether the negligence, in the particular case, amounted or did not amount to a crime, judges have used many epithets, such as ‘culpable’, ‘criminal’, ‘gross’, ‘wicked’, ‘clear’, ‘complete’. But, whatever epithet be used and whether an epithet be used or not, in order to establish criminal liability the facts must be such that, in the opinion of the jury, the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others, as to amount to a crime against the State and conduct deserving punishment.
Some judges found the Bateman approach unsatisfactory and in the search for a more precise formulation there was, in some cases, a shift away towards expressing the fault element in terms of recklessness. See, for example, Stone and Dobinson [1977] QB 354, discussed in Chapter 3, and Seymour (Edward John) [1983] 2 AC 493. This approach was however regarded as somewhat rigid, and the House of Lords, in Adomako [1995] 1 AC 171, reverted to the Bateman approach. The accused, an anaesthetist, failed to respond appropriately to signs that his patient had ceased to breathe when a tube supplying oxygen from a ventilator had become disconnected. The patient died as a result of irreversible brain damage. Adomako was convicted of manslaughter by gross negligence. His appeal to the Court of Appeal was dismissed, as was his appeal to the House of Lords. Lord Mackay of Clashfern LC, with whom the other Law Lords agreed, explained the principles to be applied in cases of manslaughter by gross negligence. He said: The ordinary principles of the law of negligence apply to ascertain whether or not the defendant has been in breach of a duty of care towards the victim who has died. If such breach of duty is established the next question is whether that breach of duty caused
Criminal law Chapter 6 Unlawful homicide: murder and manslaughter the death of the victim. If so the jury must go on to consider whether that breach of duty should be characterised as gross negligence and therefore a crime. This will depend on the seriousness of the breach of duty committed by the defendant in all the circumstances in which the defendant was placed when it occurred. The jury will have to consider whether the extent to which the defendant’s conduct departed from the proper standard of care incumbent upon him, involving as it must have done a risk of death to the patient, was such that it should be judged criminal.
The elements of manslaughter by gross negligence 1 The requirement of a duty of care In Willoughby [2004] Rose LJ confirmed that, although there may be special cases where a duty obviously exists, such as that between doctor and patient, and where the judge may direct the jury accordingly, the question whether a duty was owed by the defendant to the deceased will usually be a matter for the jury, provided there is evidence capable of establishing a duty in law. And in Wacker [2002] EWCA Crim 1944 the Court of Appeal held that a duty of care may arise even where the defendant and deceased were involved in a joint unlawful enterprise. In Lewin v CPS [2002] EWHC 1049 D left his drunk adult friend in a car on a hot day. The friend later died in the car but there was no duty of care owed because it could not have been foreseen that the friend was being exposed to the risk of death. In Ruffell [2003] 2 Cr App R (S) 53, however, the Court of Appeal found that the defendant had breached a duty of care towards the victim by deliberately leaving the victim, who had clearly been unwell, outside in the cold weather and not bringing him inside. In Evans [2009] EWCA Crim 650 the appellant, D, and her mother, T, were convicted of the manslaughter of D’s half-sister (and T’s daughter), C, who had injected herself with what proved to be an overdose of heroin. All three women had been heroin users, and the appellant had procured the heroin in question from a local dealer, A. When C became ill, showing signs of having overdosed, D and T stayed with her but decided against calling for help for fear that so doing would get them all into trouble. C died during the night. Clearly D was not guilty of manslaughter by an unlawful act as the supply of heroin was not the legal cause of death and the self-injection by V was a free, deliberate and voluntary act initiating a fresh chain of causation – see 7.5.2 above. The issue was whether D was liable for manslaughter by gross negligence on the basis of her failure to take reasonable steps for the safety of the deceased once she appreciated that the heroin she procured for her was having a potentially fatal impact on her health. Dismissing the appeal, the Court of Appeal held: 1. Whether a duty may exist is a question of law, and the jury are to be directed on what the law is – deciding the question whether the facts established the existence of the duty. 2. When a person has created or contributed to the creation of a state of affairs which he knows, or ought reasonably to know, has become life threatening, a consequent duty on him to act by taking reasonable steps to save the other’s life will normally arise.
Lord Judge CJ, delivering the judgment of the court, explained the roles of judge and jury as follows. In some cases, such as those arising from a doctor/patient relationship where the existence of the duty is not in dispute, the judge may well direct the jury that a duty of care exists. Such a direction would be proper. But if, for example, the doctor were on holiday at the material time, and the deceased asked a casual question over a drink, it may very well be that the question whether a doctor/patient relationship existed, and accordingly whether a duty of care arose, would be in dispute. In any cases where the issue is in dispute, and therefore in more complex cases, and assuming that the judge has found that it would be open to the jury to find that there was a duty of care, or a duty to act, the jury should be directed that if facts a + b and/or c or d are established, then in law
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2 There must be a breach of duty amounting to gross negligence In civil law, where a person is under a duty, doing something or failing to do something in a way which falls below the standard that might be expected of a reasonable person will amount to a negligent breach of duty. For criminal law that will not suffice. As Lord Mackay explained: The essence of the matter which is supremely a jury question is whether, having regard to the risk of death involved, the conduct of the defendant was so bad in all the circumstances as to amount in their judgment to a criminal act or omission.
In the Attorney General’s Reference (No. 2 of 1999) it was said that there is no need to prove that D foresaw a risk of death. The Adomako approach has been criticised on a number of grounds, most notably its apparent circularity. For example, the Law Commission (Law Com 237) Legislating the criminal code; involuntary manslaughter, at para 3.9 commented: The first problem with this test is that it is circular: the jury must be directed to convict the defendant of a crime if they think his conduct was ‘criminal’. In effect, this leaves a question of law to the jury, and, because juries do not give reasons for their decisions, it is impossible to tell what criteria will be applied in an individual case. This must lead to uncertainty in the law. The CPS has told us that prosecutors find it difficult to judge when to bring a prosecution, defendants have difficulty in deciding how to plead, and there is a danger that juries may bring in inconsistent verdicts on broadly similar evidence.
In Misra [2004] EWCA Crim 2375 these issues were considered by the Court of Appeal. The appellants, Drs Misra and Srivastava, were senior house officers (that is, hospital doctors) responsible for the post-operative care of a patient who had had routine surgery to treat an injured tendon in his knee. The wound became infected which resulted in toxic shock syndrome from which the patient died. The defendants were charged with manslaughter by gross negligence. Following Adomako, the trial judge had directed the jury that they should convict of manslaughter by gross negligence only if they were sure that the defendant’s conduct: ... fell so far below the standard to be expected of a reasonably competent and careful senior house officer that it was something, in your assessment, truly exceptionally bad, and which showed such an indifference to an obviously serious risk to the life of the deceased and such a departure from the standard to be expected as to amount, in your judgment, to a criminal act or omission, and so to be the very serious crime of manslaughter.
The doctors were convicted and appealed on the ground that the test of liability for the offence of manslaughter by gross negligence did not comply with the requirement of legal certainty in Article 7 of the European Convention on Human Rights. In addition, relying on Article 6, it was argued that a reasoned decision in respect of the law is a necessary element of a fair hearing and that as the jury are not required to explain their reasons for their decision Article 6 was not complied with. 3 The breach caused the death The final requirement, that the breach caused the death, is resolved in accordance with normal causation principles.
Activity 6.6 Read the study pack extracts from the decision of the Court of Appeal in R v Misra; R v Srivastava [2004] EWCA Crim 2375. a. Did the court agree that following Adomako the law concerning manslaughter by gross negligence was uncertain? b. How did the Court of Appeal respond to the argument that the jury were deciding an issue of law?
Criminal law Chapter 6 Unlawful homicide: murder and manslaughter c. How did the Court of Appeal respond to the argument that following the decision of the House in R v G [2004] 1 AC 1034 an element of mens rea was a requirement of all serious offences?
Self-reflection Do you agree with the Court of Appeal in Misra that the law relating to manslaughter by gross negligence is not uncertain?
6.5.4 Reckless manslaughter Following Hyam a person who killed having foreseen that death or serious injury was a highly probable result of his actions was guilty of murder. In Moloney [1985], the House of Lords held that foresight, in the absence of an intention to kill or cause serious injury, would no longer suffice for murder. It follows that it will suffice for manslaughter. This basis of liability is rarely relied upon because in most cases D will also be guilty of constructive manslaughter and/or manslaughter by gross negligence and this type of manslaughter will most commonly be relevant where D has been charged with murder. If the jury are sure that D foresaw a risk of death or serious harm but not to the level at which they are entitled to conclude that he intended to kill or cause serious harm then a manslaughter verdict would be appropriate provided that D was unjustified in taking the risk (Lidar [2000] 4 Archbold News 3).
Summary The three forms of involuntary manslaughter are distinguished from murder by their fault element. The mens rea of murder is an intention to kill or cause GBH. Manslaughter by an unlawful and dangerous act requires proof of an unlawful act which caused death and which carried an objective risk of some harm. Manslaughter by gross negligence is committed where death has resulted from a serious breach of a duty of care. The basis of liability for reckless manslaughter is foresight of the risk of death or serious injury.
6.6 Proposed reforms Essential reading
Wilson, Chapter 13: ‘Homicide’, Section 13.8 ‘Reforming criminal homicide’.
Law Commission Report No. 304 (November 2006).
Activity 6.7 Read the study pack extract from Powell and Daniels; English [1999] 1 AC 1. What, according to Lord Steyn, is the problem with the present definition of the mens rea of murder? Manslaughter also covers, at one extreme, the killer who consciously and deliberately took an unjustified risk of causing death and, at the other, the person who killed by an unlawful act but who neither intended nor foresaw any harm at all resulting from his act. As Lord Lane CJ remarked in Walker (1992) 13 Cr App R (S) 474, 476: It is a truism to say that of all the crimes in the calendar, the crime of manslaughter faces the sentencing judge with the greatest problem, because manslaughter ranges in its gravity from the borders of murder right down to those of accidental death. It is never easy to strike exactly the right point at which to pitch the sentence.
Summary In this chapter we have considered murder and the form of manslaughter known as involuntary manslaughter. Both offences share the same actus reus and are
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distinguished by their mens rea requirements. The actus reus is the killing of a human being. The mens rea of murder requires proof of an intention to kill or cause GBH. Involuntary manslaughter can be committed in three ways:
manslaughter by an unlawful and dangerous act
manslaughter by gross negligence
reckless manslaughter.
Sample examination question Nicola wanted to frighten Susan and so poured some petrol through her letterbox and ignited it. The fire spread throughout the house. Susan, who was asleep in bed, breathed in the fumes. She was taken, unconscious, to hospital and placed on a life-support machine. After a few days the doctors diagnosed that as a result of breathing in the fumes, she was suffering from irreversible brain stem death and switched off the machine. Susan was declared dead. Discuss Nicola’s criminal liability.
Advice on answering the question Nicola’s liability for murder should first be considered. This is committed where a person, intending to kill or intending to cause grievous bodily harm and in the absence of a defence, unlawfully kills another human being (Moloney [1985]). The actus reus consists of causing the death of a human being and you should note that provided the decision of the doctors to discontinue life-support treatment was bona fide, switching off the machine will not break the chain of causation (Malcherek and Steel [1981]). The mens rea of murder requires proof of an intention to kill or cause grievous bodily harm (Vickers [1957]) and grievous bodily harm means ‘serious bodily harm’ (Saunders [1985]). Note that Nicola’s direct intent was to frighten Susan. The jury are, however, entitled to find that she intended to kill or cause grievous bodily harm if they are sure that Nicola was aware that death or serious bodily harm was virtually certain to result from her actions (Moloney [1985]; Hancock and Shankland [1986]; Woollin [1998]). As Nicola may not have acted with the mens rea for murder her liability for manslaughter ought to be considered. Constructive manslaughter requires proof that D commits an unlawful and dangerous act which causes the death of another (Goodfellow [1986]; Newbury [1977]). The offence of arson contrary to s.1(1) and 1(3) of the Criminal Damage Act 1971 will suffice as an unlawful act for the purposes of manslaughter (Goodfellow). This offence is committed if D intentionally or recklessly, and without lawful excuse, destroys or damages property belonging to another by fire. Clearly, Nicola committed arson when she ignited the petrol. The question whether the unlawful act was dangerous is an objective one – i.e. whether all sober and reasonable people would inevitably have recognised that Susan’s acts carried a risk of some harm, albeit not serious harm (Church [1966]). You should consider the alternative bases of liability for manslaughter – i.e. ‘by gross negligence’ and ‘reckless manslaughter’. The categories of manslaughter are not mutually exclusive – a defendant may be guilty of the offence by more than one route (Willoughby [2004]). Manslaughter by gross negligence requires proof (a) that a duty of care was owed by Nicola to Susan; (b) that Nicola committed a gross breach of that duty; and (c) that the breach caused death. Whether a duty exists is answered by reference to the ordinary principles of the law of negligence (Adomako [1995]). Although this is a question of fact for the jury it is reasonable to assume that Nicola owed a duty not to expose Susan to the risk of harm.
Criminal law Chapter 6 Unlawful homicide: murder and manslaughter Whether there was a gross breach of duty depends on the seriousness of the breach, taking into account all the circumstances and in particular the objective risk of death. This too is a question of fact for the jury who should consider whether Nicola’s conduct created a foreseeable risk of death and fell so far below the standard of a reasonable person that it should give rise to criminal liability (Adomako). But again, it is reasonable to assume that a jury, properly directed, would conclude that Nicola committed a grossly negligent breach. The issue of causation was discussed above. If Nicola foresaw a risk of death or serious harm but not that either consequence was virtually certain to result then she is guilty of reckless manslaughter. It is clear that she had no justification for exposing Susan to the risk (Lidar [2000] 4 Archbold News 3). The question asks you to consider Nicola’s criminal liability as a whole and not just her liability for an offence of homicide. Therefore you should consider her liability for an offence of aggravated damage contrary to s.1(2) of the Criminal Damage Act 1971 (dealt with in Chapter 17). You should note that the actus reus consists of damaging or destroying property by fire and that clearly Nicola did so. The mens rea comprises two elements: first that D intentionally recklessly damaged or destroyed property, and secondly that she either intended or was reckless as to endangering life. In this context, recklessness bears a ‘subjective’ meaning; that is, the prosecution must prove that Nicola was aware of a risk that life might be endangered and it was, in the circumstances known to her, unreasonable to take that risk (R v G [2003], overruling Metropolitan Police Commissioner v Caldwell [1981]). Note also Cooper [2004] in which the Court of Appeal held, applying R v G to a case of arson being reckless as to whether life would be endangered, that if D had been aware that there was a risk but had dismissed it as a negligible risk then D is not reckless. Note that it is necessary to show that D was reckless as to life being endangered by the damage. However, in Dudley [1989] it was held that it suffices that D was reckless as to life being endangered by the fire itself.
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Reflect and review Look through the points listed below: Are you ready to move on to the next chapter? Ready to move on = I am satisfied that I have sufficient understanding of the principles outlined in this chapter to enable me to go on to the next chapter. Need to revise first = There are one or two areas I am unsure about and need to revise before I go on to the next chapter. Need to study again = I found many or all of the principles outlined in this chapter very difficult and need to go over them again before I move on. Tick a box for each topic. Ready to move on
Need to revise first
Need to study again
manslaughter by an unlawful and dangerous act
manslaughter by gross negligence
reckless manslaughter.
I can explain and apply to factual situations the actus reus elements of murder and manslaughter. I can explain and apply to factual situations the mens rea of murder and the fault elements of the various forms of involuntary manslaughter:
I can describe the proposals for reform of the law relating to murder and involuntary manslaughter.
If you ticked ‘need to revise first’, which sections of the chapter are you going to revise? Must revise
Revision done
6.1 Homicide in context
6.2 The distinction between murder and manslaughter
6.3 The actus reus of murder and manslaughter
6.4 The mens rea of murder
6.5 Involuntary manslaughter
6.6 Proposed reforms
Before you continue to the next topic listen again to audio presentation 7 to recap and consolidate what you have learnt.
7
Voluntary manslaughter: the defences of loss of control and diminished responsibility
Contents Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .84 7.1
Loss of control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .85
7.2
Diminished responsibility . . . . . . . . . . . . . . . . . . . . . . . . .88 Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . .97
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Introduction This chapter considers the defences of loss of control and diminished responsibility. Both defences are available only on charges of murder and, if successfully pleaded, reduce liability to manslaughter. Therefore, they need only be considered where D killed V having either intended to kill or intended to cause grievous bodily harm. The reason why these defences apply only to murder is that the penalty for murder is fixed and thus, although the presence of mitigating factors may be taken into account when setting the minimum term to be served in prison, the judge is bound to impose a mandatory life sentence. By treating loss of control and diminished responsibility as defences reducing liability to manslaughter the judge’s hands are untied, and he or she may impose any penalty up to and including a discretionary life sentence. With offences other than murder the penalty is not fixed; when sentencing the judge can take all relevant mitigating factors into account.
Essential reading and listening
Wilson, Chapter 13: ‘Homicide’, Section 13.5 ‘Malice mitigated: voluntary manslaughter’ and Section 13.6 ‘Diminished responsibility: the internal trigger’.
Audio presentation 8.
Available from Westlaw on the Online Library:
Miles, J. (2009) ‘The Coroners and Justice Act 2009: a “dog’s breakfast” of homicide reform’, Archbold News, 10, 6–9.
Leigh, L.H. ‘Two new partial defences to murder’, Criminal Law & Justice Weekly (2010) 174 JPN 53.
Whitney, C. (2010) ‘Loss of control’ Criminal Law & Justice Weekly 174 JPN 197.
Explanatory notes to the Coroners and Justice Act 2009, Part 2, Ministry of Justice (2009).
Murder, manslaughter and infanticide: proposals for reform of the law, Consultation Paper CP19/08, Ministry of Justice (2008).
Learning outcomes By the end of this chapter and the relevant readings you should be able to:
identify when the defences of loss of control and diminished responsibility may be raised
understand the ingredients of the defences of loss of control and diminished responsibility
apply the defences of loss of control and diminished responsibility to factual situations.
Criminal law Chapter 7 Voluntary manslaughter
7.1 Loss of control The partial defence of loss of control replaces the common law partial defence of provocation, abolished by s.56 of the Coroners and Justice Act 2009. The common law defence applied where D was provoked to lose self-control by things said or done (or both), and in the opinion of the jury the provocation was enough to make a reasonable man do as D did. Reform of the law followed recommendations by the Law Commission in two reports in 2004 (Partial Defences to Murder, Law Com No. 290) and 2006 (Murder, manslaughter and infanticide, Law Com No. 304). The Government’s response to these proposals was published in 2008 (Murder, manslaughter and infanticide; proposals for reform of the law) and a Bill followed shortly after. The Coroners and Justice Act 2009 received Royal Assent in November 2009.
7.1.1 Introduction Section 54(1) of the Coroners and Justice Act 2009 sets out the ingredients of the new defence. It provides: Where a person (“D”) kills or is a party to the killing of another (“V”), D is not to be convicted of murder if— a. D’s acts and omissions in doing or being a party to the killing resulted from D’s loss of self-control, b. the loss of self-control had a qualifying trigger, and c. a person of D’s sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same or in a similar way to D.
Section 54(7) provides that, if successfully pleaded, a person who would otherwise be guilty of murder will be convicted of manslaughter. The defendant bears an evidential burden in respect of the defence (s.54(6)). Only where, in the opinion of the judge, a properly directed jury could reasonably conclude the defence might apply should it be left for their consideration. Provided this threshold requirement is met, the burden of proof rests with the prosecution and the jury must assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not (s.54(5)). Thus the prosecution must prove that D’s fatal acts or omissions did not result from a loss of self-control and/or the loss of self-control was not a result of a ‘qualifying trigger’ as defined in s.55 and/or a person of D’s sex and age, with a normal degree of tolerance etc., would not have reacted in the same or similar way to D.
7.1.2 The requirement of a loss of self-control There must be a loss of self-control resulting from a qualifying trigger; the defence is not available to someone who killed out of calculated revenge. Under the old law it was not necessary that the defendant had completely lost control to the extent that he did not know what he was doing (Richens (1994) 98 Cr App R 43) and this remains the case under the new defence. What is required is that the defendant was unable to restrain himself from doing what he did or omitted to do.
The loss of self-control need not be sudden The classic formulation of the defence of provocation in Duffy [1949] required that the accused acted: under a sudden and temporary loss of self-control, rendering him so subject to passion as to make him for the moment not master of his mind.
Although there had to be a sudden loss of self-control, the defence was not denied merely because there was a delayed reaction. The loss of self-control need not have followed immediately upon the provoking conduct. However, it was pointed out in the case law that, as a matter of common sense, the longer the time interval between the final act of provocation and the killing the less likely it was that the D did indeed suffer a loss of self-control.
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University of London International Programmes In Ahluwalia [1992] 4 All ER 889 the Court of Appeal stated that: although the defence would not, as a matter of law, be negatived simply because of a delayed reaction the longer the delay and the stronger the evidence of deliberation on the part of the defendant the more likely it would be that the prosecution would be able to negative it. In the instant case, despite the delay, the judge had properly directed the jury to consider whether there was a ‘sudden and temporary loss of self-control’. He had not suggested that the response of the appellant had to be immediate. This was an accurate account of the law.
So the loss of self-control had to be sudden but it did not have to immediately follow the provoking acts or words. A delayed reaction would suffice provided there was a sudden loss of self-control attributable to the provocation at the time of the fatal act. Many commentators expressed the view that the requirement of a loss of self-control imported into the defence an inherent ‘gender bias’ in favour of men. The Law Commission in its report Partial defences to murder (Law Com Report No. 290 (2004)), at para 3.28 commented that: A noteworthy issue which emerged from our discussions with psychiatrists was that those who give vent to anger by ‘losing self-control’ to the point of killing another person generally do so in circumstances in which they can afford to do so. An angry strong man can afford to lose his self-control with someone who provokes him, if that person is physically smaller and weaker. An angry person is much less likely to ‘lose self-control’ and attack another person in circumstances in which he or she is likely to come off worse by doing so.
Female defendants, it is argued, are less likely to ‘snap’ in response to taunts or violence from a man and so less likely to kill in a way which allowed them to raise the defence of provocation. Like Kiranjit Ahluwalia, women are more likely to respond to abuse by suffering a ‘slow-burn’ anger or fear which eventually leads to killing the man when he is asleep or for some other reason relatively vulnerable. And so the defence would fail on the grounds that she did not suffer a sudden loss of self-control. Under the new law, although there needs to be a loss of self-control, s.54(2) provides that it need not be ‘sudden’. However, the extent to which s.54(2) eradicates the gender bias is not clear. First, it is questionable whether a loss of self-control can ever be anything other than ‘sudden’. Is it not inherent in the ordinary meaning and understanding of a ‘loss of self-control’ that the person in question abruptly ‘snaps’ or ‘explodes’? Secondly, although the loss of self-control need not immediately follow the triggering incident the explanatory notes to the Act point out: The length of time between the incident and the killing does however affect whether there is sufficient evidence of a loss of self-control for the judge to leave the issue to the jury, and how readily a jury accepts that the defendant had indeed lost his or her self-control at the time of the killing. Although subsection (2) in the new partial defence makes clear that it is not a requirement for the new partial defence that the loss of self control be sudden, it will remain open, as at present, for the judge (in deciding whether to leave the defence to the jury) and the jury (in determining whether the killing did in fact result from a loss of self-control and whether the other aspects of the partial defence are satisfied) to take into account any delay between a relevant incident and the killing.
Thus, the lack of an immediate reaction does not automatically defeat the defence but, as under the old law, it is evidence either that there was not a lack of self-control or that, if there was a loss of self-control, it was not in response to the earlier trigger. The longer the delay the more likely it is that D had not lost his self-control.
Self-reflection Is it possible for a person to suffer a ‘loss of self-control’ which is not ‘sudden’? The Act provides that the defence cannot be relied upon where D ‘acted in a considered desire for revenge’ (s.54(4)). The explanatory notes to the Act state that this is the case even where D has lost self-control.
Criminal law Chapter 7 Voluntary manslaughter
Self-reflection Is s.54(4) necessary? Surely if a person acted in a considered desire for revenge the requirement of a loss of self-control in s.54(1)(a) will not be satisfied.
7.1.3 The loss of self-control must be a result of a ‘qualifying trigger’ Section 54(1)(b) provides that the loss of self-control must have a qualifying trigger as set out in s.55. The following are qualifying triggers
A fear of serious violence Section 55(3): where D’s loss of self-control was attributable to D’s fear of serious violence from V against D or another identified person. Note the relationship between this and self-defence discussed in Chapter 11 of this guide. Unlike loss of control, self-defence is a complete defence. It is only available where D, in the circumstances believed by D to exist, used reasonable force to defend himself or another. The new defence is available where D overreacted and the force used was excessive. In common with self-defence, the question is whether D genuinely feared serious violence and not whether such fear was reasonable. Note that the fear must be in respect of violence against D or another identified person and so, as the explanatory notes to the Act explain, fear that V would use serious violence against people generally will not qualify.
A justifiable sense of being seriously wronged Section 55(4): where D’s loss of self-control was attributable to a thing or things done or said (or both) which (a) constituted circumstances of an extremely grave character and (b) caused D to have a justifiable sense of being seriously wronged (s.55(4)). This bears some similarities with the old defence of provocation. However, whereas anything said or done could qualify as a trigger for provocation, the new defence is limited to things of an extremely grave character. This is, presumably, an objective question. Similarly, whether D had a ‘justifiable sense of being seriously wronged’ implies an objective evaluation.
Combined triggers Section 55(5): where D’s loss of self-control was attributable to a combination of the matters mentioned in s.55(3) and s.55(4) above.
Limitations on qualifying triggers Section 55(6) provides: In determining whether a loss of self-control had a qualifying trigger— d. D’s fear of serious violence is to be disregarded to the extent that it was caused by a thing which D incited to be done or said for the purpose of providing an excuse to use violence; e. A sense of being seriously wronged by a thing done or said is not justifiable if D incited the thing to be done or said for the purpose of providing an excuse to use violence.
(Note that the mere fact that D caused a reaction in V, which in turn led D to lose his self-control, is not enough. D’s fear of violence / sense of being seriously wronged, is only to be disregarded / not justified if D incited the behaviour which triggered it for the purpose of providing an excuse.) f. the fact that a thing done or said constituted sexual infidelity is to be disregarded.
The exclusion of ‘sexual infidelity’ as a trigger reflects the Government’s view that anger on discovering that a spouse or partner had been sexually unfaithful should never partially excuse murder. However the Court of Appeal have now concluded that
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Self-reflection Do you agree that sexual infidelity should not be regarded as a qualifying trigger for a loss of self-control?
7.1.4 The evaluative question Section 54(1)(c) introduces an objective evaluative element into the defence of provocation. This involves considering whether a person of D’s sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same or in a similar way to D. Subsection (3) reinforces the requirement in subsection (1)(c) that D’s response is evaluated by reference to the response one might expect of a person of ‘normal tolerance and self-restraint’ by providing that the reference to D’s circumstances in that subsection means all circumstances ‘other than those whose only relevance to D’s conduct is that they bear upon D’s general level of tolerance and self-restraint’. Thus the fact that D is exceptionally short-tempered or volatile may not be taken into account when deciding whether an ordinary person might have acted as the defendant did. However a history of having been abused can be taken into account, as might those characteristics of D which were the target of verbal insults. Where the defendant’s capacity for self-control was affected by mental disorder then the defence of diminished responsibility may be available to reduce liability from murder to manslaughter (see 7.2.1 below).
Activity 7.1 Consider whether the defence of loss of control might be available in the following circumstances. Kiranjit, an Asian woman, returned home to find a man raping her 15 year old daughter. She picked up a knife from the kitchen. The man shouted racist abuse at her and started to run away. Kiranjit chased after him. He tripped and fell and she stabbed him in the back several times, killing him.
Summary The defence of loss of control applies only to murder and, if successfully pleaded, reduces liability to manslaughter. D must have lost self-control in response to a qualifying trigger to which a person of D’s sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same or in a similar way.
7.2 Diminished responsibility The defence of diminished responsibility is a statutory defence applying only to murder. It was introduced following the Royal Commission on Capital Punishment (Cmnd 8932, 1949–1953) as a compromise solution to one of the problems concerning the mandatory death penalty. As the law then was, the condition of mentally disordered defendants could not be taken into account when sentencing those convicted of murder except in those limited cases where the condition amounted to legal insanity. The defence of diminished responsibility overcomes the problem by reducing liability from murder to manslaughter, thereby giving the judge discretion as to sentence. Reform of the law was recommended by the Law Commission in its 2006 report (‘Murder, manslaughter and infanticide’, Law Com No. 304 paras 5.83 – 5.142). The Government accepted the Law Commission’s analysis that the partial defence of
Criminal law Chapter 7 Voluntary manslaughter diminished responsibility should be retained but reformed and broadly agreed with their recommendations. Modifications to the defence were put into effect by s.52 of the Coroners and Justice Act 2009. The defence is defined in s.2(1) of the Homicide Act 1957 as substituted by s.52 of the Coroners and Justice Act 2009. It provides that: 1. A person (“D”) who kills or is a party to the killing of another is not to be convicted of murder if D was suffering from an abnormality of mental functioning which— a. arose from a recognised medical condition, b. substantially impaired D’s ability to do one or more of the things mentioned in subsection (1A), and c. provides an explanation for D’s acts and omissions in doing or being a party to the killing. 1A. Those things are— a. to understand the nature of D’s conduct; b. to form a rational judgment; c. to exercise self-control.
The defence is available to those charged with murder as principals or secondary parties but not to those charged with attempted murder (Campbell [1997]).
Burden of proof If D pleads diminished responsibility, then he must prove it on the balance of probabilities (s.2(2); Dunbar [1958]) 1QB 1. By virtue of s.6 of the Criminal Procedure (Insanity) Act 1964, where the defendant has raised the defence of insanity the prosecution are entitled to raise diminished responsibility, in which case they must prove it beyond reasonable doubt (Grant [1960] Crim LR 424). A plea of guilty to diminished responsibility manslaughter may be accepted by the judge where the medical evidence is not disputed (Cox (1968) 52 Cr App R 130).
Disposal Between 1997 and 2001 a total of 157 defendants raised diminished responsibility as a defence. Out of a total of 36 contested cases, diminished responsibility pleas were successful in eight. In addition there were 118 uncontested pleas of diminished responsibility, making a combined total of 126 successful pleas. Approximately one half of those convicted of manslaughter by diminished responsibility received hospital orders under s.37 of the Mental Health Act 1983, many with restriction orders imposed under s.41 of the same statute. Of the remainder, probation orders were the most popular form of disposal. Ten were given discretionary life penalties (Law Commission Report No. 290 Appendix B (2004)).
7.2.1 Ingredients of the defence For a successful plea, it must be proved that:
D was suffering from an abnormality of mental functioning which arose from a recognised medical condition,
which substantially impaired D’s ability to (a) to understand the nature of D’s conduct or (b) to form a rational judgment or (c) to exercise self-control, and
which provides an explanation for D’s acts and omissions in doing or being a party to the killing.
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An abnormality of mental functioning which arose from a recognised medical condition The old law required proof of an ‘abnormality of mind’. This term was heavily criticised on the basis that it was vague and did not relate to psychiatric practice. ‘Abnormality of mental functioning’ was preferred to ‘abnormality of mind’ by those psychiatrists who made submissions to the Law Commission and the requirement that it ‘arose from a recognised medical condition’ is intended by the Government ‘to bring the existing terminology up-to-date in a way which would accommodate future developments in diagnostic practice and encourage defences to be grounded in a valid medical diagnosis’. The Act does not state by whom the condition needs to be medically recognised but it was assumed by the Government that the phrase ‘recognised medical condition’ would encompass the ‘physical, psychiatric and psychological conditions’ recognised by ‘accepted classificatory systems’ including the World Health Organisation’s ICD-10 classification of diseases and the Diagnostic and Statistical Manual of Mental Disorders (DSM) published by the American Psychiatric Association. These include both functional and organic conditions. Therefore, in addition to the recognised psychoses including schizophrenia, mood disorders such as mania and depression and neuroses such as the phobias and post-traumatic stress disorder, conditions like dementia and epilepsy might form the basis of a plea of diminished responsibility. Although ordinary jealousy will not amount to an abnormality of mental functioning arising from a recognised medical condition, morbid or pathological jealousy might. Note the following remark made in the Report of the Committee on Mentally Abnormal Offenders (the Butler Committee), 1975, Cmnd 6244, para 19.7: Sometimes, depression and jealousy can properly be diagnosed as mental disorders; but the distinction between conditions which can be so diagnosed and normal depression or normal jealousy may be one of degree only, and the effect of the… law is to put strong pressure on the psychiatrist to conform his medical opinion to the exigency of avoiding a very severe sentence, fixed by law, for a person for whom everyone has the greatest sympathy.
Medical evidence Although medical evidence of an abnormality of mental functioning arising from a recognised medical condition is required (Dix [1981]), the availability of the defence is for the jury and not the medical experts. A jury is entitled to reject even the unchallenged evidence of an expert and is entitled to take into account all the circumstances of the killing. If, however, the psychiatric evidence is uncontested and there is nothing in the facts or circumstances to cast doubt on it, they are bound to accept it (Byrne [1960]; Matheson [1958]; Kiszko [1978]; Sanders [1991] Crim LR 781; Salmon [2005] EWCA Crim 70; Walker [2009] EWCA Crim 1829).
Substantially impairment of specific abilities Under the old law it had to be proved that the abnormality ‘substantially impaired [D’s] mental responsibility’ for the killing. This requirement was criticised as it involved a complex question of the extent to which D’s abnormality affected his culpability. The Government accepted the Law Commission proposal that this be replaced and the substituted section provides that the abnormality of mental functioning must substantially impair one of the three abilities specified in s.2(1A). The substantial impairment must be in respect of one of the following three abilities. D’s ability to understand the nature of his/her conduct This bears some similarity with the first limb of the M’Naghten Rules which requires that D ‘does not know the nature and quality of his act’. The Law Commission recognised that this might mean that, in this type of case ‘to prove diminished responsibility D would have to show that he or she was “borderline insane”’ (para 5.138).
Criminal law Chapter 7 Voluntary manslaughter The relationship between diminished responsibility and insanity is discussed below. The Law Commission gave the following illustration of this limb: A boy aged 10 who has been left to play very violent video games for hours on end for much of his life, loses his temper and kills another child when the child attempts to take a game from him. When interviewed, he shows no real understanding that, when a person is killed they cannot simply be later revived, as happens in the games he has been continually playing.
D’s ability to form a rational judgment The Law Commission gave the following illustrations of this limb: a. a woman suffering from post-traumatic stress disorder, consequent upon violent abuse suffered at her husband’s hands, comes to believe that only burning her husband to death will rid the world of his sins b. a mentally sub-normal boy believes that he must follow his older brother’s instructions, even when they involve taking take part in a killing. He says, ‘I wouldn’t dream of disobeying my brother and he would never tell me to do something if it was really wrong’ c. a depressed man who has been caring for many years for a terminally ill spouse, kills her, at her request. He says that he had found it progressively more difficult to stop her repeated requests dominating his thoughts to the exclusion of all else, so that ‘I felt I would never think straight again until I had given her what she wanted’.
Self-reflection Do you agree that each of the examples above involve an impairment of D’s ability to form a rational judgment? D’s ability to exercise self-control This is to be contrasted with the loss of self-control defence discussed earlier in this chapter. Unlike the defence under s.54(1) this is not limited to cases where the loss of self-control had a qualifying trigger and a person of D’s sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same or in a similar way to D. The Law Commission gave the following illustration of this limb: A man says that sometimes the devil takes control of him and implants in him a desire to kill, a desire that must be acted on before the devil will go away.
Self-reflection Do you agree that this illustration involves an impairment of the ability to exercise self-control? Under the old law the question of whether an impairment was substantial was for the jury to decide in a ‘broad commonsense way’ and not by the medical experts (Byrne (1960) 2 QB 396; Hill [2008] EWCA Crim 76; Khan (Dawood) [2010] 1 Cr App R 4). It was also held that the impairment must be more than ‘trivial’ or ‘minimal’ but need not be ‘total’ (Lloyd [1967] 1 QB 175; R v R [2010] EWCA Crim 194). A similar approach is likely to be followed in respect of the new legislation. Although a medical expert might give evidence on the symptoms of D’s disorder and its likely effects on the specified abilities it will be for the jury to decide whether there was a ‘substantial impairment’
The abnormality of mental functioning provides an explanation for D’s acts and omissions in doing or being a party to the killing This requirement was recommended by the Law Commission. Section 2(1B) states that for the purposes of subsection (1)(c), an abnormality of mental functioning provides an explanation for D’s conduct if it causes, or is a significant contributory factor in causing, D to carry out that conduct. Thus, for the partial defence to apply there must be a connection between the abnormality and the killing and it must be more than a trivial factor. It need not, however, be the sole cause of the killing.
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University of London International Programmes Relationship with insanity Whereas insanity is limited to diseases of the mind affecting perception, understanding or cognition – the defendant must suffer a defect of reason such that he did not know what he was doing or did not know that what he was doing was legally wrong – diminished responsibility is not so restricted. As we have seen, it includes abnormalities in self-control. Even in those cases where there is a potential overlap between insanity and diminished responsibility – those cases where D’s ability to understand the nature of his/her conduct was impaired by a mental disorder – there remains a significant distinction between the two defences. As the Law Commission point out: ‘[T] he definition of insanity means that whether a defect of reason (stemming from a disease of the mind) amounts to insanity in law is an ‘all or nothing’ matter. Either D shows that the defect of reason led him or her not to know the nature or quality of his or her act or that it was legally wrong or the defect of reason did not have that effect.’
By way of contrast, the definition of diminished responsibility requires a substantial impairment and thus is a matter of judgement and degree. So there remains: ‘an important theoretical distinction between the insanity plea (involving an all-ornothing question) and the plea of diminished responsibility (involving a judgement of degree as to whether there was a substantial impairment by an abnormality of mental functioning)’ (para 5.142).
Note also that, unlike the redrafted defence of diminished responsibility, the M’Naghten Rules do not include a requirement that the acts of the defendant were caused by his or her mental condition.
7.2.2 Alcohol, drugs and diminished responsibility The transient effects of alcohol or drugs In Di Duca (1959) 43 Cr App R 167 it was held that the transient effects of intoxicants do not constitute an abnormality of mind from one of the specified causes and thus cannot diminish responsibility. This is also true of the amended defence. For the purpose of the Act a state of intoxication is not an ‘abnormality of mental functioning [arising] from a recognised medical condition’. (Regina v Dowds [2012] EWCA Crim 281.)
Mental abnormality and intoxication As we have seen, an abnormality of mental functioning need not be the sole cause of the killing. Thus, if D, who suffers from an abnormality of mental functioning from a recognised medical condition, is under the influence of alcohol and kills V, the availability of the defence will depend on whether the abnormality substantially impaired one of the three abilities and caused, or was a significant contributory factor in causing, D to carry out that conduct. Even if the alcohol played a part the defence may be relied upon. Thus, where there are two causes of the abnormality of mind, one of which is within the scope of the defence and the other which is not (intoxication) the defendant may nonetheless succeed in the defence even if he would not or may not have killed if he had been sober. The fact that D was intoxicated does not disentitle him from successfully pleading diminished responsibility, nor should it to be taken into account when considering whether D suffered from an abnormality of mental functioning. The jury must consider whether apart from the drink the abnormality substantially impaired D’s ability to understand the nature of his conduct, to form a rational judgment or to exercise self-control and was a more than trivial cause of the killing. In Hill [2008], decided under the old law, it was held that as D’s abnormality (an organic brain injury) would not have resulted in a significant impairment until it interacted with alcohol he had consumed, the defence was not available. It is submitted that that remains the position under the substituted s.2.
Criminal law Chapter 7 Voluntary manslaughter Alcohol dependency syndrome Alcohol dependency syndrome is a medical condition recognised by both the World Health Organisation’s ICD-10 and the AMA Diagnostic and Statistical Manual of Mental Disorders (DSM). But as there are a number of different criteria for a diagnosis of dependency not all patients have the same symptoms or the same problems related to drinking. Thus it does not necessarily follow from the fact that the defendant suffered from alcohol dependency syndrome that he has established the necessary abnormality of mental functioning. In Stewart [2009] EWCA Crim 593 it was held that whether D is suffering from a mental abnormality will depend on ‘the jury’s findings about the nature and extent of the syndrome and whether, looking at the matter broadly, his consumption of alcohol before the killing is fairly to be regarded as the involuntary result of an irresistible craving for or compulsion to drink.’ Stewart was decided under the old law but it is likely that this approach to the question of mental abnormality will continue to be followed. Under the new provision the jury will also have to consider whether the syndrome substantially impaired one of the key abilities and whether it was a significant cause of the relevant conduct.
Self-assessment question What are the three ingredients of the defence of diminished responsibility?
Summary The defence of diminished responsibility, defined in s.2 of the Homicide Act 1957 as substituted by s.52 of the Coroners and Justice Act 2009, applies only to murder. As with loss of control, a successful plea reduces liability to manslaughter. As an exception to the normal rule in criminal trials the burden of proof is on the defendant. D must show, on a balance of probabilities, that at the time of the killing he was suffering from an abnormality of mental functioning arising from a recognised medical condition which substantially impaired D’s ability to (a) understand the nature of D’s conduct or (b) form a rational judgment or (c) exercise self-control, and provides an explanation for D’s acts and omissions in doing or being a party to the killing. The defence is wider in scope than legal insanity and it has been pleaded successfully in cases where D has suffered from a condition impairing his ability to exercise selfcontrol. The transient effects of alcohol do not amount to an abnormality of mental functioning arising from a medical condition but nor do they disentitle a defendant from raising the defence. In cases where the defendant was intoxicated and also suffering from an abnormality of mind, the effects of the alcohol should be ignored by the jury when considering the availability of the defence. Alcohol dependency syndrome is a recognised medical condition and thus, depending on its nature and extent, whether it substantially impaired one of the three specified abilities and whether it was a significant cause of D’s behaviour, may be the basis of a successful plea of diminished responsibility.
Reminder of learning outcomes By this stage you should be able to:
identify when the defences of loss of control and diminished responsibility may be raised
understand the ingredients of the defences of loss of control and diminished responsibility
apply the defences of loss of control and diminished responsibility to factual situations.
Sample examination question a. Frank, a deaf mute with an extremely low IQ, was taunted by local children. He lost his self-control and, intending to cause serious injury, beat one of them to death.
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University of London International Programmes b. Joseph, who had been drinking, went into a club and started to behave in an aggressive manner to some of the customers including William to whom he threatened violence. William responded by pouring a glass of beer over Joseph. This angered Joseph and he started to shout at William. William, still holding the glass, took hold of Joseph and punched him. Joseph, believing that William was about to hit him with the glass, drew out a knife and, intending serious injury, fatally stabbed him. Discuss the criminal liability of Frank and Joseph.
Advice on answering the question Liability for murder It is important to start your answer by considering liability for murder. You should point out:
A person who, intending to kill or cause grievous bodily harm, kills another human being, is guilty of murder (Vickers [1957]; Moloney [1985]) and that is clear from the facts that both defendants killed with the required intent.
Therefore D will be convicted of murder unless he can take advantage of either of the two defences discussed in this chapter both of which reduce liability to manslaughter.
a. Frank The defence of loss of control – s.54(1) of the Coroners and Justice Act 2009 You should point out the following.
The effect of a successful plea – s.54(7)
Although s.54(6) imposes an evidential burden on D, the burden of proof is on the prosecution (s.54(5)) who must prove beyond reasonable doubt that:
D’s fatal acts or omissions did not result from a loss of self-control (s.54(1)(a)) and/or
the loss of self-control was not a result of a ‘qualifying trigger’ as defined in s.55 and/or
a person of D’s sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, would not have reacted in the same or in a similar way to D (s.54(1)(c)).
The facts of the question indicate that Frank suffered a loss of self-control as required by s.54(1)(a).
Provided the things done or said constituted circumstances of an extremely grave character and caused D to have a justifiable sense of being seriously wronged they would qualify as triggers under s.55(4). Ultimately this would be for the jury to decide.
The requirements that the things said or done constitute circumstances of an extremely grave character and that D was caused to have a justifiable sense of being seriously wronged are, presumably, objective questions.
The question whether a person of normal degree and tolerance and self-restraint might, in the circumstances, have reacted in a similar way to Frank is an objective evaluative question ultimately for the jury.
Frank’s low IQ might be taken into account if it caused him to misunderstand what the children were saying or doing. Similarly, the fact that Frank was not able to respond verbally to the provocation might also be taken into account. But evidence that his intellectual limitations and his disability caused him to be exceptionally volatile would not be admissible in support of a plea of loss of control as s.54(3) excludes from consideration circumstances ‘which bear upon D’s general level of tolerance and self-restraint’.
Criminal law Chapter 7 Voluntary manslaughter Diminished responsibility – s.2(1) of the Homicide Act 1957 as substituted by s.52 of the Coroners and Justice Act 2009 You should point out the following.
For a successful plea, D must prove on the balance of probabilities (s.2(2); Dunbar [1958]) that:
he was suffering from an abnormality of mental functioning which arose from a recognised medical condition,
which substantially impaired his ability to (a) to understand the nature of D’s conduct or (b) to form a rational judgment or (c) to exercise self-control – subsection (1A),
and provides an explanation for his acts and omissions in doing or being a party to the killing.
The facts indicate that Frank suffered from a low IQ. Depending on the overall level of Frank’s intellectual ability this may amount to mental retardation which is recognised as a mental condition by the World Health Organisation ICD-10.
It is for the jury to decide on the basis of the medical evidence and other relevant circumstances whether the degree of retardation suffered by Frank amounted to an abnormality of mental functioning (Dix (1981); Byrne (1960); Walker [2009]).
The facts indicate that Frank lacked self-control at the time of the killing but it must be proved that his ability to exercise self-control was impaired by his mental abnormality. This again is a question for the jury to decide on the basis of the medical evidence and other relevant circumstances.
The impairment must be ‘substantial’. This involves consideration of the degree of impairment and it is for the jury and not for the medical experts to decide. Under the old law the jury was required to decide the issue in a ‘broad commonsense way’ (Byrne (1960); Hill [2008]; Khan (Dawood) [2010]) and it was held that the impairment must be more than ‘trivial’ or ‘minimal’ but need not be ‘total’ (Lloyd [1967]; R v R [2010]). A similar approach is likely to be followed in respect of the new legislation. Although a medical expert might give evidence on the nature of Frank’s disorder and its likely effects on his ability to exercise self-control it will be for the jury to decide whether there was a ‘substantial impairment’
In addition it must be proved that there was a ‘significant’ causal connection between the abnormality and the killing (s.2(1B)). The abnormality need not, however, be the sole cause. This, too, is a question for the jury.
Section 2(3) of the Act provides that a successful plea of diminished responsibility reduces liability from murder to manslaughter.
b. Joseph The defence of loss of control – s.54(1) of the Coroners and Justice Act 2009 Provided Joseph had lost his self-control at the time of the killing he may raise the partial defence. There are a number of possible qualifying triggers under s.55: iii. William pouring the beer over his head iv. William punching Joseph v. Joseph’s fear that William might cause him serious violence vi. a combination of the above. (i) and (ii) would qualify as triggers only if they were, in the opinion of the jury, extremely grave and caused Joseph to have a justifiable sense of being seriously wronged. The relative immediacy of Joseph’s reaction to the triggers is good evidence of a loss of self-control.
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The fact that William’s behaviour was induced by Joseph is not, in itself, enough to disqualify the triggers of his loss self-control. Only if the jury are sure that Joseph incited the behaviour for the purpose of providing an excuse to use violence should his fear of serious violence be disregarded and/or his sense of being seriously wronged be treated as unjustifiable (s.55(6)). Clearly if, at the time of the killing, Joseph was acting out of ‘a considered desire for revenge’ the defence is not available to him (s.54(4)). The question of whether a person of the same age and sex as Joseph, with a normal degree of tolerance and self-restraint might, in the circumstances, have reacted in a similar way are ultimately for the jury (s.54(5)). Note: Joseph may be entitled to rely then on the defence of self-defence. This is a complete defence and is discussed in Chapter 11 of this guide.
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Reflect and review Look through the points listed below: Are you ready to move on to the next chapter? Ready to move on = I am satisfied that I have sufficient understanding of the principles outlined in this chapter to enable me to go on to the next chapter. Need to revise first = There are one or two areas I am unsure about and need to revise before I go on to the next chapter. Need to study again = I found many or all of the principles outlined in this chapter very difficult and need to go over them again before I move on. Tick a box for each topic. Ready to move on
Need to revise first
Need to study again
I can understand the ingredients of the defences of loss of control and diminished responsibility.
I can identify when the defences of loss of control and diminished responsibility may be raised.
I can apply the defences of loss of control and diminished responsibility to factual situations.
If you ticked ‘need to revise first’, which sections of the chapter are you going to revise? Must revise
Revision done
7.1 Loss of control
7.2 Diminished responsibility
Before you continue to the next topic listen again to audio presentation 8 to recap and consolidate what you have learnt.
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8
Simple non-fatal offences against the person
Contents Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100 8.1
Common assault . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
8.2
Assault . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
8.3
Battery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
8.4
Consent as a defence to assault and battery . . . . . . . . . . . . . . . 107 Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114
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Introduction This chapter and Chapter 9 of this guide are concerned with a number of, mainly statutory, non-fatal offences against the person (although most of them are common law in origin). You should note at this point that the Offences Against the Person Act which consolidated the pre-existing law in 1861 (and is used in around 100,000 prosecutions every year) does not contain a coherent and consistent group of provisions. For example the maximum sentence for the relatively minor offence contrary to s.47 is five years’ imprisonment: this is also the maximum sentence for the more serious offence contrary to s.20.† Its wording is outdated and its provisions have been described by the Law Commission – which has made a number of proposals for reform – as ‘archaic and unclear’. This statute will be referred to as ‘OAPA’. You will see that a number of the cases referred to in this chapter are civil cases. Assault and battery are both civil and criminal wrongs. The elements of the criminal offences of assault and battery and the civil wrongs (or torts) of assault and battery are similar, originating from the same ancient actions. Victims must be human beings which means at the beginning of life the child must be fully extruded from, and have an existence independent of, its mother and at the other end of life the victim must not have reached the stage of brain stem death. This is more fully discussed in Chapter 6 in relation to homicide but the principles apply equally to non-fatal offences. Sexual offences are governed by the Sexual Offences Act 2003 and are dealt with in Chapter 11.
Essential reading and listening
Wilson, Chapter 11: ‘Non-fatal offences’.
Audio presentation 9.
The extract from the Law Commission’s Offences Against the Person Bill report 1998. (Included in your study pack.)
Gardiner, S. ‘Should more matches end in court?’, New Law Journal 1 July 2005. (Included in your study pack.)
Learning outcomes By the end of this chapter and the relevant readings you should be able to:
explain the definitional elements of the offence of assault
explain the definitional elements of the offence of battery
define the term ‘common assault’
explain the defence of consent as it applies to assault and battery
explain the limits of the defence of consent to an assault or a battery.
†
Although it is the convention when writing about the offences in this and the next chapter to begin with the least serious, working through to the most serious, it is important that you remember that when answering questions on this topic, you begin your answer with the most serious offence as indicated by the facts of the question.
Criminal law Chapter 8 Simple non-fatal offences against the person
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8.1 Common assault Essential reading
Wilson, Chapter 11: ‘Non-fatal offences’, Section 11.3 ‘Offences protecting personal autonomy’.
‘Common assault’ is a term which covers the offences of both assault and battery, which were distinct offences at common law. The word ‘common’ is used because there is no aggravating ingredient. The existence of the two offences as separate offences has been confirmed by s.39 of the Criminal Justice Act 1988 which provides that: Common assault and battery [are] summary offences† and a person guilty of either of them shall be liable to a fine, not exceeding level 5 on the standard scale, to imprisonment for a term not exceeding six months, or to both.
†
A summary offence is tried in a magistrates’ court.
There has been some debate as to whether assault and battery are statutory offences. See DPP v Little [1992] 1 All ER 299 where the Divisional Court held them to be statutory offences, but note also Laws J in Haystead v Chief Constable of Derbyshire [2000] Crim LR 758 who said: ‘… [I]n truth, common assault by beating [battery] remains a common law offence.’ Generally, an offence is a statutory offence where its definition is to be found in a statute so although, for example, the penalty for murder is set out in a statute, the offence remains one of common law as the definition of the offence is to be found at common law. Section 47 OAPA did not define these offences although it did provide for a penalty. Section 39 of the Criminal Justice Act 1988 merely provides that common assault and battery are summary offences and now sets out the maximum penalty. The section does not define the offences. There was a similar debate in respect of the aggravated form of this offence, that is assault occasioning actual bodily harm contrary to s.47 OAPA (see Chapter 9). Whether they be common law or statutory, assault and battery are separate offences and for our purposes must be treated as such.† Despite the fact that the term ‘assault’ is often used to describe a battery (physical assault) you must be careful not to confuse the two. When discussing these offences you should be precise in your terminology, thus demonstrating that you recognise the differences between the actus reus of (pure) assault and that of battery (physical assault). Neither assault nor battery requires any proof of harm having been suffered by the victim. The mere fact that an assault or battery has been perpetrated is sufficient for a conviction. Generally, of course, some minor harm will have been suffered – the result of a battery might be a bruise or a black eye – but it is not necessary for the prosecution to prove that this was the case for the offence to lie. Where any harm caused is more serious, for example broken limbs or perhaps psychiatric harm caused by an assault or a battery, the defendant will be charged with one of the aggravated forms of the non-fatal offences against the person which are discussed in Chapter 10. The seriousness of the harm suffered by the victim, together with the mental element of the defendant at the time of the offence will determine which of the aggravated offences would be appropriate to charge him or her with. A defendant will frequently be charged with a range of these offences. and problem questions on this topic generally require consideration of a number of these offences. The offences of assault and battery form the basis of the offence contrary to s.47 OAPA and it is therefore important that you are familiar with the elements of these offences before you begin your study of the aggravated non-fatal offences.
†
The offence of assault is committed when a person intentionally or recklessly causes another person to apprehend the application of immediate unlawful violence and that of battery is committed when a person intentionally or recklessly inflicts immediate unlawful violence on another person.
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8.2 Assault Essential reading
Fagan v MPC [1969] 1 QB 439
Savage and Parmenter [1991] 1 AC 699
Venna [1975] 3 All ER 78
Ireland [1997] 4 All ER 225.
Activity 8.1 See the above cases. How is the offence of ‘pure’ assault defined? Note that the term ‘violence’ is a little misleading in that it is not necessary that the victim apprehends anything particularly severe. Force would perhaps be a better word as it more accurately reflects the rule that the apprehension of any unwanted touching – e.g. an unwelcome kiss – would be sufficient. Various prefixes are employed to describe this type of assault in order to distinguish it from battery. It might be called ‘simple’ assault, ‘pure’ assault, ‘psychic’ assault, ‘technical’ assault, ‘strict’ or even ‘mere’ assault depending upon which textbook, article or case you are reading.
8.2.1 Actus reus Essential reading
Wilson, Chapter 11: ‘Non-fatal offences’, Section 11.3 ‘Offences protecting personal autonomy’.
Turberville v Savage (1669) 1 Mod Rep 3
R v St George (1840) 9 C & P 483
Faulkner v Talbot [1981] 3 All ER 468.
The actus reus of assault is committed where the defendant causes another to apprehend the application of immediate unlawful force. You will see from this that one of the elements of the actus reus is concerned with what was going on in the victim’s mind. No matter what the defendant’s intention was and no matter what he did, if the victim did not apprehend unlawful force – perhaps because he was asleep, had his back turned to the defendant, was blind or was a twoday-old baby – there can be no offence of assault.
Activity 8.2 See the cases above and consider the following questions a. X and Y were arguing on the telephone. X became very angry and said to Y: ‘If you were here I would punch you on the nose’. Has X assaulted Y? b. X pointed an unloaded gun at Y intending to alarm him. Is X guilty of assault? c. Would it be correct to say that for there to be an assault the victim must fear the apprehension of immediate unlawful force? As stated above, the unlawful contact does not need to be violent in the sense that the word ‘violence’ is normally understood. What we are considering here is the victim’s apprehension of a battery which was defined by Lord Lane CJ as: … [A]ny unlawful touching of another person without the consent of that person and without lawful excuse. It need not necessarily be hostile, rude, or aggressive…
Immediacy The victim must apprehend immediate violence for this offence to lie. Therefore a threat to perpetrate violence on the victim ‘next week’ would not be an assault.
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What is ‘immediate’, however, appears to depend upon the circumstances of the case and may not need to be ‘instantaneous’. In Smith v Chief Superintendent of Woking Police Station (1983) 76 Cr App R 234 it was assault to stand outside the victim’s window and stare in – while she was dressed in nothing but a short pink nightdress – with intent to frighten her and causing her to apprehend contact. In R v Ireland and Burstow [1998] AC 147 Lord Steyn used the term ‘imminent’ and in R v Horseferry Road Metropolitan Stipendiary Magistrate ex parte Siadatan [1991] 1 QB 260 (QBD) Watkins LJ said (albeit in the context of a different offence): It seems to us that the word ‘immediate’ does not mean ‘instantaneous’: that a relatively short time interval may elapse between the act which is threatening [or] abusive…and the unlawful violence. ‘Immediacy’ connotes proximity in time and proximity in causation; that it is likely that violence will result within a relatively short period of time and without any other intervening occurrence.
In Constanza [1997] Crim LR 576 the defendant sent numerous letters to the victim, drove past her door on many occasions and made a number of silent telephone calls. V was concerned that the defendant had ‘flipped’ and that something could happen ‘at any time’. The Court of Appeal held that the judge had been entitled to leave the question of whether the victim had a fear of imminent violence to the jury. The test was whether there was a ‘fear of violence at some time not excluding the immediate future’.
Omissions Essential reading
Fagan v Metropolitan Police Commissioner [1969] 1 QB 439
DPP v Santana-Bermudez [2003] EWHC 2908 (Admin).
Activity 8.3 Can an assault be committed by omission?
Words Words may negate what otherwise might be an assault. In Turberville v Savage (1669) 1 Mod Rep 3 the victim and the defendant were having an argument. The defendant placed his hand upon his sword and said: ‘If it were not assize† time I would not take such language from you.’ It was held that the words negated what would otherwise have been an assault. Despite this it was for a long time unclear as to whether words alone could amount to an assault. In the case of R v Meade (1823) 1 Lew CC 184 it was said that no words or singing could be equivalent to an assault. In R v Wilson [1955] 1 WLR 493, however, it was considered that the words ‘get out the knives’ could amount to an assault. It would now seem from the decision of the House of Lords in R v Ireland and Burstow [1998] AC 147 that words alone (and in some circumstances silence) can constitute an assault where the victim apprehends the possibility of imminent force. Lord Steyn rejected the proposition that an assault could never be committed by words alone and said that silence might also constitute an assault, but whether it did so or not was a question of fact.
Activity 8.4 a. Read the study pack extract from Lord Steyn’s speech in R v Ireland and Burstow, and answer the following questions. i. What was Lord Steyn’s view as to the proposition that ‘no words or singing are equivalent to an assault’? ii. Can a silent telephone call amount to an assault? b. Read the extract from the Law Commission’s Offences Against the Person Bill report 1998 in your study pack and answer the following questions.
†
Assizes were periodic criminal courts held twice each year in each county from the thirteenth century until 1972.
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University of London International Programmes i. Which clause proposes a statutory definition for the offences we now know as assault and battery? ii. How does that clause propose that these offences be defined?
8.2.2 Mens rea Essential reading
Wilson, Chapter 11: ‘Non-fatal offences’, Section 11.3 ‘Offences protecting personal autonomy’.
The mens rea requirement for assault is intention or recklessness. Thus, it must be proved that the defendant either intended to cause, or was aware of a risk of causing, the victim to apprehend the application of immediate unlawful violence (Venna [1976] QB 421). Note that ‘recklessness’ in this context is subjective, i.e. it must be proved beyond reasonable doubt that the defendant foresaw the risk of causing the victim to apprehend the application of violence. See Savage and Parmenter [1991] 4 All ER 698. If there is any doubt in the jury’s mind as to whether or not the defendant did foresee the risk then the defendant must be acquitted.
Self-assessment questions Was there an assault in the following situations?† 1. John crept up behind Susie and kissed the back of her head. 2. Susie knew her friend Cissie was a nervous and timid girl. As a joke she telephoned Cissie and said: ‘I’m coming to get you.’ 3. Susie pointed an unloaded shotgun at Fred.
8.3 Battery Essential reading
Wilson, Chapter 11: ‘Non-fatal offences’, Section 11.3 ‘Offences protecting personal autonomy’.
Audio presentation 9.
A person commits a battery if he intentionally or recklessly inflicts immediate unlawful violence on another person. See Rolfe [1936] Cr App R 4; Collins v Wilcock [1984] 3 All ER 374.
Self-Reflection Consider the following scenarios before you do any of the reading and before you listen to the audio presentations. Having read the definition of battery (set out above) do you think any of the participants below should be found guilty of this offence? You will come across similar situations as you work through this chapter and, at the end of the chapter, you will be asked to revisit these questions and consider them again, this time using the knowledge you have acquired. 1. John tripped over a loose paving stone in the street and fell against Sandra. The impact of this pushed Sandra over. 2. Susan was being searched by the police. She knew she had a pair of scissors in her pocket but did not tell the policewoman, who cut herself when she searched Susan’s pocket. 3. Samir watched Dave walk down some steps and saw a cat lying on one of the steps. He noticed that Dave could not see it but said nothing. Dave tripped over the cat and fell down the steps.
†
Ensure that you consider, first of all, whether the actus reus of assault is made out before you go on to consider the mens rea.
Criminal law Chapter 8 Simple non-fatal offences against the person 4. Priya was very cross with Archie. She hit him, causing him to drop Sam, the baby he was carrying. Sam hurt his head. 5. John threw a stone at Cecil, intending to hit him but missed. 6. Amy crept up behind Fred and kissed him. 7. Donal hit Sarah but it did not hurt her. 8. Angelina spat in Brad’s face.
8.3.1 Actus reus Essential reading
Wilson, Chapter 11: ‘Non-fatal offences’, Section 11.3 ‘Offences protecting personal autonomy’.
The actus reus of battery is, therefore, the infliction of immediate unlawful violence on another person. Any application of force is sufficient and no harm or injury need be caused.
Violence In Callis v Gunn [1964] 1 QB 495 it was held that wrongly taking a person’s fingerprints could be a battery. Throwing water at the victim – although not at clothes she is wearing – is a battery: see Pursell v Horn (1838) 7 LJ QB 228. The tapping of a person on the shoulder by a police officer to get their attention is unlikely to be a battery but a subsequent restraint could be (Collins v Wilcock [1984] 3 All ER 374). Ordinary touching in the course of daily life is not battery. In Wilson v Pringle [1986] 2 All ER 440 it was suggested that touching must be ‘hostile’ to amount to a battery. However, Lord Goff in Re F [1990] 2 AC 1 doubted whether the term ‘hostile’ connoted anything more than contact beyond that which is ordinarily acceptable in everyday life, saying: A prank that gets out of hand, an over-friendly slap on the back, surgical treatment by a surgeon who mistakenly thinks that the patient has consented to it, all these things may transcend the bounds of lawfulness, without being characterised as hostile.
As with assault, it has long been said that for there to be a battery there must be a voluntary action by the defendant. Battery (like assault) could not be committed by omission. In Fagan v MPC [1969] 1 QB 439 the defendant accidentally drove his car on to a policeman’s foot but, despite repeated requests, refused to remove it. It was held that there was an assault but not merely by omission. The defendant’s conduct, from accidentally driving on to the policeman’s foot to refusing to move, was a continuing act. He was still ‘acting’ at the time he formed the necessary intention for battery, i.e. when he refused to remove the car. This, it could be argued, suggests a straining of the word ‘act’. In the more recent case of DPP v Santana-Bermudez [2003] All ER (D) (Nov), where a drug addict about to be searched by a policewoman falsely told her that there were no syringes in his pocket, the Divisional Court of the Queen’s Bench held (applying the Miller principle – see Chapter 2) that, the policewoman having been pricked by one of the syringes, the defendant was guilty of the offence contrary to s.47 OAPA which requires proof of an assault or a battery.
Direct The application of force need not be direct. To throw a stone which hits someone, to spit at them (remember no harm need be caused) or to use an implement to trip the victim up would all be batteries. See Martin (1881) 8 QBD 54 where the defendant turned off the lights in a theatre and barred the exits causing a crush in which several people were injured and DPP v K [1997] where the defendant, a schoolboy, put acid into a hot air drier which resulted in the victim being burnt when he used it.
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Note that although DPP v K has been overruled, it was not overruled on this point. Striking A and thereby causing injury to B might amount to a battery to B, as in Haystead v Chief Constable of Derbyshire [2000] 3 All ER 890 where the defendant punched A who was holding a child in her arms. The child fell, hitting its head on the floor. The defendant was guilty of a battery in respect of the child.
Activity 8.5 Has the actus reus of battery been committed in the following situations? a. Sandy deliberately stuck out his leg in front of Julian in order to trip Julian up. Julian tripped on Sandy’s leg and fell over. b. Julian was sitting down with his legs stretched out. Although he saw that Sandy was about to walk past him he kept his legs in that position.
8.3.2 Mens rea Essential reading
Wilson, Chapter 11: ‘Non-fatal offences’, Section 11.3 ‘Offences protecting personal autonomy’.
The mens rea for battery is intention to inflict unlawful violence on a person or recklessness as to whether such violence is inflicted (Venna [1976]). Note that the offence of battery can be committed without there having been an assault and there can be an assault without a battery.
Self-assessment 1. Please revisit the eight questions you considered at the beginning of this topic. How would you answer them now? You might have noticed that they did not generally make clear what was going through the protagonist’s mind. Did s/he intend to do what s/he did? You would need to know this to come to a definite answer of guilty or not guilty of battery. As you go through them again, bear in mind that examination questions frequently do not make it clear whether or not a protagonist had the mens rea for a particular offence. In circumstances such as this use ‘if/then’ (i.e. ‘if X had the mens rea for battery (which, as you know, is intention or recklessness) then (assuming the actus reus can be established from the facts) the jury will find him guilty of this offence. If the mens rea cannot be proved beyond reasonable doubt then he will not be guilty.) Note also that you should consider the elements of the actus reus of battery first and then consider the mens rea. 2. Jane did not like Simon. One night she dug a hole hoping that Simon, who could not see very well, would fall down it. Simon did fall down the hole. Has Jane committed the offence of battery?
Summary In this part of the chapter the offences of assault and battery were considered. Note that neither of these offences requires proof that any harm was caused to the victim. You should ensure that you are familiar with the elements of these offences as they form the basis of the aggravated non-fatal offence of assault occasioning actual bodily harm which you will study when you come to the next chapter.
Criminal law Chapter 8 Simple non-fatal offences against the person
8.4 Consent as a defence to assault and battery Self-reflection As with battery (8.3 above) we would like you to consider the following scenarios before you do any of the reading and before you listen to the audio presentations. Do you think any or all of the participants should have the defence of consent if they were charged with one of the non-fatal offences against the person? You will come across similar situations as you work through this chapter and, at the end of the chapter, you will be asked to revisit these questions and consider them again, this time using the knowledge you have acquired. 1. Susie was 3 years old. Her mother asked her if she would like to wear earrings. Susie said yes so her mother pierced her ears using a needle and an ice cube. 2. Baby John’s parents consented, on his behalf, to a circumcision procedure. There was no medical necessity for this. 3. Dipak and Kuljeet could not agree about who was the more handsome of the two of them. They decided to have a fight to settle the matter. Dipak suffered a black eye and Kuljeet a broken nose so neither of them was handsome any more. 4. Jane asked her friend Sally, who was a trainee tattooist, to tattoo her arm. Sally tattooed a pretty butterfly on Jane’s arm. 5. Would it make any difference to your answer to the last question if Jane was twelve years old? 6. Cyril was having surgery to repair a hernia in his abdomen. While Brenda, the surgeon, was performing the surgery she decided to remove his appendix in case, she said, it gave him problems in later years.
8.4.1 Consent Essential reading
Wilson, Chapter 11: ‘Non-fatal offences’, Section 11.4 ‘Defences to offences against the person’.
Section 58 of the Children Act 2004.
Where a person freely consents to what would otherwise be a common assault there is no offence. Care must be taken with consent as limits have been placed on the extent to which consent will negate criminal liability. One of the limits is, for example, where the defendant caused or intended some harm, even harm of a fairly minor nature. You will see from your reading that most of the cases on consent concern aggravated non-fatal offences against the person as bodily harm was caused to the victims. These offences will be dealt with in Chapter 10. However, in one recent case brought under s.39 of the Criminal Justice Act 1988 (assault), the issue as to whether a lack of consent was a necessary ingredient of the offence or whether consent was a defence fell to be decided by the Divisional Court. The decision was that this point was a ‘spurious’ one and should never have been raised. See Crown Prosecution Service v Shabbir [2009] EWHC 2754. Although consent must be specific, in that the victim must consent to the interference in question, it does not need to be expressly stated. When you hold your arm out so that the nurse or doctor can give you an injection you are impliedly consenting to that injection (although not to any other procedure – consent to one medical procedure does not, in itself, justify another). Medical treatment given without the patient’s consent may amount to a battery or, indeed, one of the aggravated non-fatal offences against the person. Where, however, consent to medical treatment has been obtained, the treatment will be, for obvious reasons, an exception to the rule that consent is vitiated where bodily harm is likely or intended. It has been said that people impliedly consent to ordinary social contact, for example being jostled in a crowd – see Wilson v Pringle but see also Lord Goff in Re F.
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8.4.2 Reality of consent Consent will be vitiated where it has been obtained by fraud or duress.
Fraud In R v Williams [1923] 1 KB 340 the defendant was guilty of rape (and, therefore, battery) as he obtained the claimant’s consent to sexual intercourse by falsely representing to her that it was a breathing exercise which would improve her singing voice. Thus, there was a fraud as to the nature of the act. It was the rule that the fraud must go to the very nature of the act (or the identity of the perpetrator) and there was authority that a fraud as to the effect and consequences of the act was not enough to vitiate consent. See Hegarty v Shine (1878) 14 Cox CC 124 and R v Clarence (1888) 22 QBD 23.
Fraud: nature of the act In Clarence the defendant had sexual intercourse with his wife knowing that he had a venereal disease (a sexually transmittable disease). He did not tell her he was suffering from this condition. His wife became infected. She argued that there had been an assault as she would not have consented to the intercourse had she known that he had the condition. It was held that as there was no deception as to the nature of the act – she knew the nature of the act and the identity of the person performing it – it was irrelevant that she was mistaken about a collateral detail of it. See also Bolduc v Bird (1967) 63 DLR (2d) 82. However, in R v Tabassum [2000] the defendant was found guilty of indecent assault where he had examined the breasts of women who had consented because they believed that it was for medical purposes. Therefore, the court held that although there was, in essence, consent to the nature of the act there was no consent in relation to its quality. This introduced a new dimension of ‘quality’. Prior to this, the cases held that only fraud as to the ‘nature’ of the act would vitiate consent. Mrs Clarence, although she consented to the sexual intercourse – indeed at that time husbands could not, in law, rape their wives – did not, presumably, consent to the ‘quality’ of the act. Note that the offence of ‘indecent assault’ has been superseded by the Sexual Offences Act 2003. See Chapter 10.
Activity 8.6 What was decided in the case of Dica? Dica was followed in R v Barnes [2004] EWCA 3246 and R v Feston Konzani [2005] EWCA Crim 706. Feston Konzani was convicted on three counts of inflicting grievous bodily harm on three different women contrary to s.20 of the Offences Against the Person Act 1861. Knowing that he was HIV positive, and having been specifically informed of the risks of passing the infection on through sexual intercourse, he repeatedly had unprotected sexual intercourse with the three women without telling them of his condition. Each of them contracted HIV. The Court of Appeal upheld the appellant’s conviction. Consent to unprotected sex is not the same thing as consent to the risk of contracting the infection. Lord Justice Judge, the Deputy Chief Justice for England and Wales, who delivered the judgment in Konzani, made a reference to the earlier case of R v Barnes [2004] EWCA 3246, and said: … [In Barnes] Lord Woolf CJ summarised the effect of the decision in Dica in this way. An HIV positive male defendant who infected a sexual partner with the… virus would be guilty of an offence ‘contrary to s.20 of the 1861 Act if, being aware of his condition, he had sexual intercourse without disclosing his condition’. On the other hand, he would have a defence if he had made the partner aware of his condition who ‘with that knowledge consented to sexual intercourse with him because [she was] still prepared to accept the risks involved’.
Criminal law Chapter 8 Simple non-fatal offences against the person Judge LJ pointed out that in the instant case the jury had: concluded in the case of each complainant that she did not willingly or consciously consent to the risk of suffering the… virus. Accordingly the appeal against conviction will be dismissed.
The effect of these decisions is that if a person is aware that they are HIV positive, knows of the risks of transmission and then has unprotected sex with a partner whom they have not told then they will be liable to prosecution if that partner becomes infected with the virus.
Fraud: identity of the person Fraud as to the identity of a person may vitiate consent, for example where the defendant represents that he is the husband/boyfriend of the victim in order to have sexual intercourse with the victim. See the Sexual Offences Act 2003 discussed in Chapter 10.
Activity 8.7 Does fraud as to a person’s identity extend to their qualifications? See Richardson [1998] 2 Cr App R 200.
Duress Consent given under duress may also be vitiated. Consent must be freely given and not induced by threats or fear. Submission is not to be equated with consent. It is not clear whether the test for duress in this context would be based upon whether the reasonable person would have succumbed to the duress or whether it is sufficient that the defendant succumbed. Duress may be implied from the relationship according to the case of Nichol (1807) R & R 130 – where a school teacher committed an indecent act on a schoolboy and tried to argue that the boy had consented.
Capacity Consent will not be vitiated by the defendant’s age, provided the victim understands the nature of the act. See Gillick v West Norfolk Health Authority [1986] AC 112. Here the House of Lords ruled that a person under 16 could consent to advice and treatment without the need for any parental consent provided the child had the ability to appreciate the situation. In doubtful cases, or where there is parental disagreement, the child should be made a ward of court, which can then be approached for its permission. It is important to note, however, that there are situations where legislation has provided that a child’s apparent consent will never be valid for the purposes of the criminal law, for example the Sexual Offences Act 2003 and the Tattooing of Minors Act 1969 (see also Burrell v Harmer [1967]). A person of full age may lack the capacity to consent. In T v T [1988] the parent of a 19-year-old woman was granted a declaration in relation to the termination of a pregnancy. See also Re F [1989].
8.4.3 Public policy So far as the criminal law is concerned, even a true consent may be vitiated on public policy grounds where bodily harm was likely or intended and it was not in the public interest that such conduct should be condoned. See Attorney General’s Reference (No. 6 of 1980) [1981] 2 All ER 1057 (discussed below). Where the act has what the courts consider to be a valid social purpose – i.e. it is considered to be justified on the basis that it is in the public interest – then consent will be valid and will negate any possible criminal liability even where the act is dangerous and carries a risk of injury. Examples include medical treatment, properly conducted sports and personal adornment such as ear piercing and tattooing. What needs to be considered, so far as this issue is concerned, is the social utility of the defendant’s conduct as determined by the courts. The principles here are not always clear.
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In Donovan [1934] the defendant caned a 17-year-old girl for his own sexual gratification. He was convicted of both indecent assault and common assault. He appealed on the ground that the issue of whether or not the girl had consented had not been put to the jury. It was held that a victim’s consent was immaterial where the conduct of the defendant was likely or intended to cause bodily harm. Note that Donovan’s conviction was quashed because the jury had not been directed to consider whether Donovan’s conduct was likely to or intended by him to cause bodily harm. In Attorney General’s Reference (No. 6 of 1980) two men quarrelled and had a fight using bare fists. The Court of Appeal laid down the following principles. Where there is either:
infliction of any degree of bodily harm which is more than transient or trifling, or
where such harm was intended but not caused,
consent will only be a defence where the harm caused or intended was in the public interest. Street fighting was not such an activity. The Court of Appeal ruled that conduct such as properly conducted games and sports, reasonable surgical interference and lawful chastisement or correction were in the public interest.
Sado-masochism Attorney General’s reference (No. 6 of 1980) was approved by the House of Lords in Brown [1993]. In this case the defendants belonged to a group of sado-masochistic homosexuals who, for sexual pleasure, perpetrated acts of violence against each other. This conduct took place at private gatherings and, for their further pleasure, they videoed these encounters. None of the participants complained to the police and there was no evidence that any of them had ever sought medical treatment following any of the gatherings. These activities came to the attention of the police when they found one of the video recordings whilst investigating another matter. The defendants were convicted of offences contrary to ss.47 and 20 OAPA and the convictions were upheld by the Court of Appeal. The Court of Appeal certified as a point of law of general public importance the question: Where A wounds or assaults B occasioning him actual bodily harm in the course of a sadomasochistic encounter, does the prosecution have to prove lack of consent on the part of B before they can establish A’s guilt under s.20 or s.47 of the Offences Against the Person Act 1861?
The House of Lords in a majority decision answered the question in the negative and upheld the convictions. A number of concerns were expressed by the Lords in this case in relation to allowing consent to negative criminal liability in encounters such as this. They included, for example, concern at the possible corruption of young men who might be lured into these activities at a young age and then become entrenched in them for life. The possible spread of AIDS was another concern, although the Court of Appeal in Dica [2004] has since acknowledged that an adult can consent to the risk of a sexually transmitted disease, even a potentially lethal one such as AIDS. Another concern of the House of Lords in Brown was the possibility that things might ‘get out of hand’ – there was no guarantee that participants in these encounters would not get carried away and inflict pain and injury beyond the level to which a victim (albeit a willing victim) had consented. Lord Lane said: The satisfying of sado-masochistic libido does not come within the category of good reason (or public interest) nor can the injuries be described as merely transient or trifling.
Following the House of Lords decision, the defendants complained to the European Court of Human Rights that the convictions infringed their right to a private and family life guaranteed by Article 8 of the European Convention on Human Rights (Laskey v United Kingdom (1997) 24 EHRR 611). The rights guaranteed under Article 8, however, are not absolute rights and the European Court of Human Rights ruled that if the prosecution of the defendants did amount to an interference in their private lives, this was necessary in a democratic society in pursuance of the legitimate aim of protection of health and morals.
Criminal law Chapter 8 Simple non-fatal offences against the person
Activity 8.8
Slingsby [1995] Crim LR 570
Boyea [1992]
Wilson [1996]
Emmett [1999].
Are the courts consistent in their application of the above principles. What do the above cases illustrate in this regard?
Self-reflection If a jeweller pierces another adult’s ears, tongue, nipple, navel or genitals at their request and with their consent he is (presumably) acting lawfully. Do you think that his conduct should be lawful if:
He derived a secret sexual pleasure from his work?
He pierced his wife’s ears at her request for the sexual pleasure of both of them?
He pierced his male partner’s genitals at his partner’s request for the sexual pleasure of both of them?
He pierced his wife/male partner’s nose at her/his request for the sexual pleasure of his wife/male partner?
He branded his male partner’s buttocks at his partner’s request for the sexual pleasure of both of them?
Medical treatment Therapeutic medical treatment, including surgery, where the patient has consented, is lawful treatment. No matter how altruistic the doctor’s motive, if a patient has not consented to medical treatment then it will, subject to any defence which may be available, amount to a battery or more serious offence. It would seem that surgery such as gender change and cosmetic surgery are also lawful procedures where consent has been obtained. Consent to surgery to harvest an organ from a living donor, provided the strict rules concerning live donation are adhered to, will also be a valid consent.
Body adornment/mutilation Within certain limits consent is valid in respect of such practices even though they result in bodily harm. Although (subject to exceptions such as therapeutic surgery) a person cannot consent to serious bodily harm, it is generally accepted that an adult’s consent to such interventions as the piercing or tattooing and perhaps even branding (see Wilson above) of parts of the body is valid provided, it would seem, that it is not done for sexual gratification. It seems that a parent can consent to a child’s ears being pierced on behalf of that child – it is common practice for parents to do so – although presumably they could not validly consent to anything more invasive unless it was for a therapeutic purpose.
Self-reflection Female circumcision – an extremely radical procedure – was outlawed by the Prohibition of Female Circumcision Act 1985. This statute has been replaced by the Female Genital Mutilation Act 2003. It is now also an offence for a person in this country to aid and abet such circumcision performed abroad. Do you consider it to be appropriate that the law still allows non-therapeutic circumcision of little boys where their parents have consented to the procedure?
Sports The law recognises the social utility of sports and so far as lawful sports are concerned, consent will operate to prevent a battery provided such contacts as occur are those which can reasonably be expected in the game. Nonetheless if the rules allow for dangerous conduct which the law deems unacceptable it is open to the courts to
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rule that the consent of the participants is not valid. Boxing would seem to be an exception to this as, provided it is conducted within the rules, participants’ consent to sometimes serious injuries appears to be valid. Where incidents occur outside the rules of a game these may amount to criminal offences. In Barnes [2005] EWCA Crim 3246 it was held that criminal proceedings should only be brought against a player who injured another player in the course of a sporting event if his conduct was sufficiently grave to be properly categorised as criminal.
Self-Reflection Do you think that boxing has any social utility? In addition, it has long been recognised that children’s play can be rough and undisciplined (‘horseplay’) and consent by children to take part in each other’s rough games might be a defence to a charge of inflicting harm. The bullying of one child by another, however, is not considered to be horseplay and will be excepted. The horseplay exception was extended to adults in the case of Aitken [1992] 1 WLR 1006.
Self-reflection Read the article in your study pack ‘Should more matches end in court?’ by Simon Gardiner and published in the New Law Journal 1 July 2005. This article can also be accessed through the Online Library. Do you agree with Lord Woolf’s comment in Barnes that: the starting point was that criminal prosecution was to be reserved for those situations in which the conduct was sufficiently grave properly to be regarded as being criminal, having regard to the fact that most organised sports had their own disciplinary procedures and to the availability of civil remedies.
Lawful correction or chastisement It was lawful at common law for parents to use moderate and reasonable force to discipline their children, provided the child was old enough to understand its purpose. To administer corporal punishment in spite, anger or for the purposes of gratification, or where the degree of force used was unreasonable, was unlawful. Article 3 of the European Convention on Human Rights provides a right not to be subjected to inhumane and degrading treatment and in A v UK (Human rights: punishment of a child) [1998] EHRR 611 the European Court of Human Rights held that the United Kingdom was in breach of its obligations under the Convention because the court had acquitted the stepfather of a young boy of the offence contrary to s.47 OAPA. The stepfather had beaten the boy – between the ages of 5 and 8 – a number of times with a garden cane, causing him injury. Following the implementation of the Children Act 2004, reasonable and proportionate punishment only resulting in an assault or battery would still amount to lawful chastisement. But if any injury is caused or where there was cruelty there would be no defence. Schools are governed by the Education Act 1996.
8.4.4 Other defences to assault and battery The defendant may also, depending upon the circumstances, be able to take advantage of a number of general defences such as self-defence or necessity. These defences are considered in Chapter 11.
Summary In this chapter we considered the definitional elements of the offences of assault and battery. Although the commission of either of these offences may result in harm, proof of harm is not necessary. Where harm is caused the defendant may, in addition, be guilty of one of the aggravated non-fatal offences against the person. These offences will be considered in the next chapter. The defence of consent was also considered
Criminal law Chapter 8 Simple non-fatal offences against the person in this chapter and you should ensure that you understand when this defence will be available to a defendant and what limits the law imposes on this defence.
Sample examination question A sample examination question with feedback at the end of Chapter 9 will incorporate the topics studied in this chapter.
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Reflect and review Look through the points listed below: Are you ready to move on to the next chapter? Ready to move on = I am satisfied that I have sufficient understanding of the principles outlined in this chapter to enable me to go on to the next chapter. Need to revise first = There are one or two areas I am unsure about and need to revise before I go on to the next chapter. Need to study again = I found many or all of the principles outlined in this chapter very difficult and need to go over them again before I move on. Tick a box for each topic. Ready to move on
Need to revise first
Need to study again
I can explain the definitional elements of the offences of assault and battery.
I can define the term ‘common assault’.
I can explain the defence of consent as it applies to assault and battery.
I can explain the limits of the defence of consent to an assault or a battery.
If you ticked ‘need to revise first’, which sections of the chapter are you going to revise? Must revise
Revision done
8.1 Common assault
8.2 Assault
8.3 Battery
8.4 Consent as a defence to assault and battery
Before you continue to the next topic listen again to audio presentation 9 to recap and consolidate what you have learnt.
9
Aggravated non-fatal offences against the person
Contents Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116 9.1
Assault occasioning actual bodily harm . . . . . . . . . . . . . . . . . 117
9.2
Malicious wounding or inflicting grievous bodily harm. . . . . . . . . . 119
9.3
Racial or religious aggravation . . . . . . . . . . . . . . . . . . . . . . 122
9.4
Wounding or causing grievous bodily harm with intent and malicious wounding with intent to resist or prevent arrest . . . . . . . . . . . . . 123 Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130
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Introduction In this chapter we will consider a selection of aggravated non-fatal offences against the person. You will remember that assault and battery (Chapter 8) require no proof of any harm suffered by the victim. The offences contrary to ss.47, 20 and 18 of the Offences Against the Person Act 1861 (OAPA) all require, in addition to the other elements of the offence, proof of the particular type of harm which is set out in the definition of each; hence the term ‘aggravated’. The types of harm we will consider are wounding, actual bodily harm and grievous bodily harm. As you will see, all of these types of harm have been defined at common law. Where a person has caused harm to another, the relevant offence(s) will depend upon what type of harm he caused and whether he had the mens rea. For the moment note that:
a wound† is a break in the continuity of the whole skin
actual bodily harm is harm which interferes with the health or comfort of the victim and is more than transient or trifling
grievous bodily harm – the most grave of the non-fatal harms – is serious harm.
You might find it useful, as you consider the aggravated non-fatal offences in this chapter, to look at the Crown Prosecution Service guidance to prosecutors. Note, however, that these are only guidelines issued by the CPS. They are not of binding effect. Note that the question as to whether a victim suffered grievous bodily harm, actual bodily harm or insufficient harm to result in a conviction for any of these aggravated offences, is one of fact for the jury. You will recall that a person can be convicted of an assault or a battery without any harm having been caused to the victim. We will also note the impact of racial and religious aggravation on the offences of common assault considered in Chapter 8 and the offences of assault occasioning actual bodily harm contrary to s.47 and malicious wounding contrary to s.20 of the Offences Against the Person Act considered in this chapter.
Essential reading and listening
Wilson, Chapter 11: ‘Non-fatal offences’.
Audio presentation 10.
CPS guidance to prosecutors. (Included in your study pack.)
Judicial Studies Board Specimen Directions to the Jury for assault, battery and the offence contrary to s.47. (Included in your study pack.)
Savage and Parmenter [1991] 3 WLR 914 HL. (Included in your study pack.)
Learning outcomes By the end of this chapter and the relevant readings you should be able to:
explain the elements of the offences contrary to ss.47, 20 and 18 of the Offences Against the Person Act 1861
explain the difference between actual and grievous bodily harm
explain what is meant by a ‘wound’
give a coherent account of the principles governing the defence of consent as it applies to both the common and aggravated non-fatal offences.
†
It is not difficult to determine when a person has suffered a wound. The difficulties lie at the boundaries of actual bodily harm and grievous bodily harm.
Criminal law Chapter 9 Aggravated non-fatal offences against the person
9.1 Assault occasioning actual bodily harm Essential Reading
Wilson, Chapter 11: ‘Non-fatal offences’, Section 11.2 ‘Offences protecting physical integrity’, and in particular Part D ‘Assault occasioning actual bodily harm’.
Section 47 of the Offences Against the Person Act 1861 provides: Any assault occasioning actual bodily harm... is an offence carrying a maximum of five years’ imprisonment.
For this offence the prosecution must prove that the defendant committed an assault or battery (see Chapter 8) and that the assault or battery caused actual bodily harm. The wording of s.47 does not define assault but merely provides that an assault which occasions (causes) actual bodily harm is a more serious offence than common assault. Following the decision of the House of Lords in the case of Courtie [1984] AC 463 where Lord Diplock said it is ‘… plain beyond argument that Parliament has created two offences…’ it is clear that s.47 created a separate statutory offence. If the elements (i.e. actus reus and mens rea) of assault or battery are not made out then no offence contrary to s.47 can lie. It is important to be aware that when you are answering a question where the appropriate offence is that contrary to s.47, the first thing you must consider is whether there was an assault or a battery. This will require an analysis of the elements of these offences as they relate to the facts of the question you are considering. Once the assault and/or battery is established you then need to establish whether the harm suffered by the victim amounted to actual bodily harm and if it did then the final issue would be whether it was occasioned by the assault and/or battery. For example, if you were faced with a question which required you to consider the possible criminal liability of Simon who, while Paul was asleep, hit Paul on the head with an iron bar causing him to suffer momentary unconsciousness, this is how you should approach it. 1.
Simon is likely to be charged with the offence of assault occasioning actual bodily harm contrary to s.47 OAPA.
2. Consider, explaining the definitional elements of battery, whether the facts of the question indicate that that offence can be established. 3. If so, consider whether momentary unconsciousness might amount to actual bodily harm. 4. If so, consider whether the battery occasioned (caused) the actual bodily harm – this is an issue of causation. 5. If all of the above can be proved beyond reasonable doubt then Simon will be guilty of the offence contrary to s.47. Note that the offence of assault has not been considered because the facts of the question state clearly that Paul was asleep. It follows that he would not have apprehended the infliction of immediate unlawful violence.
9.1.1 Actus reus For the actus reus of assault and battery, please revisit Chapter 8.
Actual bodily harm
Miller [1954] 2 QB 282
T v DPP [2003] Crim LR 622
Chan Fook [1994] 2 All ER 552
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Ireland and Burstow
DPP v Smith [2006] EWHC 94 (Admin).
Activity 9.1 Please note the cases listed above. You will find all of them outlined in your textbook. Alternatively, and even better, read the actual cases. You can access all of them through the Online Library. When you have done this answer the following questions. 1. What is actual bodily harm? 2. Which case decided that actual bodily harm was not restricted to physical injury and which House of Lords case approved the decision? 3. What type of psychological harm can amount to actual bodily harm? 4. Can cutting a person’s hair amount to actual bodily harm? By now you should know that what type of harm can amount to actual bodily harm for the purposes of s.47 of the Offences Against the Person Act 1861.
Self-reflection Did the psychiatric harm in Ireland occur as the result of an assault? If you are unsure, revisit Chapter 8 and reconsider the reasons for the House of Lords decision in Ireland.
Occasioning The prosecution must prove that the defendant’s conduct caused the actual bodily harm. This is an issue of causation which was discussed in Chapter 3. See also Roberts [1971].
9.1.2 Mens rea The mens rea for the offence contrary to s.47 is that required in respect of a common assault or battery. The occasioning of actual bodily harm is an additional actus reus element but there is no requirement of mens rea in respect of it. Lord Ackner in Savage and Parmenter [1991] 4 All ER 698, confirming Roberts [1971] CA and overruling Spratt [1991] on this point, said: The verdict of assault occasioning actual bodily harm may be returned upon proof of an assault together with proof of the fact that actual bodily harm was occasioned by the assault. The prosecution are not obliged to prove that the defendant intended to cause some actual bodily harm or was reckless as to whether such harm would be caused.
Essential reading Before undertaking the next activity:
revise Chapter 8 and what has been considered so far in this chapter
read the Judicial Studies Board Specimen Directions to the Jury for assault, battery and the offence contrary to s.47, which is in your study pack.
Activity 9.2 Determine what are the relevant offences in the two situations outlined below. What, in each case, would the prosecution need to prove beyond reasonable doubt in order to gain a conviction? How should the jury be directed in each case on the mental element required for the relevant offence? a. Ruby made a number of threatening telephone calls to Jake. Jake is now too frightened to leave the house in case Ruby hurts him and is terrified every time somebody knocks on his front door. b. John hit Barbara on the head. Barbara momentarily lost consciousness.
Criminal law Chapter 9 Aggravated non-fatal offences against the person
9.2 Malicious wounding or inflicting grievous bodily harm Essential Reading
Wilson, Chapter 11: ‘Non-fatal offences’, Section 11.2 ‘Offences protecting physical integrity’, and in particular Part B ‘Malicious wounding/infliction of grievous bodily harm’.
Section 20 of the Offences Against the Person Act 1861 provides: Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person, either with or without any weapon or instrument shall be guilty of an offence... and liable to imprisonment for five years.
9.2.1 Actus reus
Moriarty v Brooks (1834) 6 C&P 684
JCC v Eisenhower [1983] 3 All ER 230
DPP v Smith [1961] AC 290
Saunders [1985] Crim LR 230
Janjua and Choudhury [1999] 1 Cr App R 91
Clarence [1888]
Wilson (1984)
Burstow
Activity 9.3 Consider the cases listed above. Again, you will find them in your textbook but try to read at least one of them. This will give you an idea of how judges decide issues such as this and will also prepare you for this activity and the next one. Now answer the following questions. 1. What is a wound? 2. What is grievous bodily harm? 3. Can there be an infliction of grievous bodily harm without an assault?
9.2.2 Mens rea The mens rea for the offence under s.20 is expressed as ‘maliciously’. This has been interpreted as requiring proof that the defendant was aware that his conduct carried a risk of causing some harm, albeit not serious harm (Savage and Parmenter approving Mowatt [1967] 3 All ER 47). Lord Ackner in Savage and Parmenter stated: My Lords, I am satisfied that the decision in R v Mowatt was correct and that it is quite unnecessary that the accused should either have intended or foreseen that his unlawful act might cause physical harm of the gravity described in s.20, i.e. 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.
The maximum penalty for an offence under s.20 is a term of imprisonment not exceeding five years.
Activity 9.4 As a consolidation exercise you should now read the case of Savage and Parmenter which is in your study pack. The reading of primary sources such as cases, rather than merely textbooks, casebooks and headnotes of cases is important for your study of criminal law. Reading the case as directed below will enhance your understanding of the elements of the common and aggravated non-fatal offences
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against the person you studied in Chapter 8 and have studied so far in this chapter, and some of the possible contexts in which they might arise. Ensure that you consider the following 50 questions sequentially as you read the case. This should help you to concentrate on and evaluate the issues as they arise. For that reason the questions follow the order of the discussion in the case and the page numbers of the original law report (included in the study pack) are in brackets at the end of each question for easy reference. Do not read the headnote until you reach question 50. 1. Why were the two appeals heard together? (p.918) 2. What did Diplock LJ in Mowatt [1968] consider to be meant by ‘the particular kind of harm’ in the citation from Professor Kenny? (p.919) 3. Why, in the opinion of the Court of Appeal, in respect of the case of Mrs Savage, was the recorder wrong to direct the jury that ‘malicious’ meant deliberate and aimed at Tracey Beal? (p.919) 4. As to what, according to the Court of Appeal, did the recorder omit to direct the jury? (p.920) 5. What had the Court of Appeal concluded as a result of the coming into force of the Criminal Justice Act 1988 in the case of Mearns [1991]? (p.920) 6. As to the issue of whether the jury could have found Mrs Savage guilty of the offence contrary to s.47 of the Offences Against the Person Act 1861, what does s.6(3) of the Criminal Law Act 1967 provide? (p.920) 7. What two questions did this raise for the court? (p.920) 8. What was the verdict of the Court of Appeal in this matter? (p.921) 9. What was the first point of law of general public importance certified by the Court of Appeal when it gave leave to appeal? (p.921) 10. What was the second point of law of general public importance? (p.921) 11. What was the third point of law of general public importance? (p.921) 12. What conclusion was it necessary to reach in order for Mrs Savage to succeed in relation to the first certified question? (p.921) 13. In the case of Parmenter what did the trial judge direct the jury that ‘malicious’ did not mean? (p.922) 14. What did he direct the jury that it did mean? (p.922) 15. On what case was the trial judge’s direction to the jury founded? (p.922) 16. What two propositions did the Court of Appeal in Parmenter consider the judgment in Mowatt to be stating? (p.923) 17. By reading the passage from Mowatt to the jurors in isolation and out of context what was the ‘real risk’ that the trial judge in Parmenter created? (pp.923–24) 18. Having quashed the four convictions under s.20 in the case of Parmenter, what did the Court of Appeal then have to consider? (p.924) 19. What ‘curious situation’ did they then discover had emerged? (p.924) 20. What had the Court of Appeal decided in the case of Spratt in respect of the type of recklessness required for both ss.20 and 47? (pp.924–25) 21. In what respect did the Court of Appeal in Parmenter conclude that the two decisions, Savage and Spratt were in harmony? (p.925) 22. How did it consider the two decisions to be in conflict? (p.925) 23. Which decision did the Court of Appeal in Parmenter prefer? (p.925) 24. What were the points of law of public importance certified by the Court of Appeal in the case of Parmenter? (p.925)
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25. The House of Lords dealt with the issues raised by the appeals in Savage and Parmenter ‘seriatim’ (p.926). What does this mean? 26. What was the first issue (point of law of public importance)? (p.926) 27. What had the House of Lords decided in relation to the same issue in Wilson [1984]? (p.926) 28. What did Mrs Savage’s counsel seek to persuade the House of Lords on this issue? (p.927) 29. What had Lawton LJ in Wilson considered to be the object of s.6(3) of the Criminal Law Act 1967? (p.927) 30. What did the House of Lords in Savage decide in relation to the first certified question? (p.929) 31. What was the second certified question? (p.929) 32. What is the mental element of assault? (p.929) 33. What is the proposition contained in Archbold’s Criminal pleading: evidence and practice 43rd edition (1988)? (pp.929–30) 34. Which case did Lord Ackner consider to be the authority for this proposition? (p.930) 35. What, according to this authority, was the test for deciding whether a defendant was responsible for occasioning actual bodily harm in a situation where the victim had reacted to an assault? (p.930) 36. What, under such circumstances, might break the chain of causation? (p.930) 37. What, therefore, was the only remaining question once the assault was established? (p.930) 38. What did the House of Lords decide on this issue in Parmenter? (p.931) 39. What was the third certified question? (p.931) 40. With what offence was Cunningham charged? (p.931) 41. Why was his conviction quashed by the Court of Criminal Appeal? (p. 932) 42. What does ‘malice’ mean in this context? (p.932)† 43. What did Diplock LJ in Mowatt consider the term ‘maliciously in a statutory crime’ to postulate? (p.939) 44. How did Lord Ackner answer the third certified question? (p.939) 45. What was the fourth certified question? (p.939) 46. Diplock LJ in Mowatt in relation to s.20 considered that the word ‘maliciously’ did import ‘… an awareness that his act may have the consequence of causing some… physical harm to some other person’. How did he qualify this? (p.940) 47. In what way did counsel for the appellant consider this to be wrong? (p.940) 48. Did Lord Ackner agree? (p.940) 49. How was the fourth question decided? (p.940) 50. Sum up, briefly, the House of Lords decision in both of these cases. It is suggested that you now read the headnote. Do you consider it to have properly and clearly covered the main issues under consideration in this case? Feedback is contained within the case. If you follow the above instructions you will see that the questions direct you to the feedback.
†
Do not confuse this with the meaning of ‘malice aforethought’ in the context of murder which, you will remember, has a different meaning. Here we are considering the term ‘malicious’ which is the mens rea for some of the offences contained within the Offences Against the Person Act 1861. For the meaning of ‘malice aforethought’ see Chapter 6.
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Summary The offences contrary to s.47 and s.20 of the Offences Against the Person Act 1861 which were covered in the first part of this chapter could be said to be offences of medium to serious gravity, although this is not reflected in the maximum sentence which is five years’ imprisonment in each case. Note that no mens rea is required in respect of the occasioning of actual bodily harm for a s.47 offence to lie but for the more serious offence contrary to s.20 the prosecution must prove that the defendant ‘maliciously’ wounded or inflicted grievous bodily harm. You should also be aware that these offences are not mutually exclusive in that a defendant might be charged with both of them in respect of the same set of facts. Please note, before you go on to the next topic, that you are aware of all of the elements of these offences.
9.3 Racial or religious aggravation If common assault is racially or religiously aggravated the maximum sentence is two years’ imprisonment; a racially or religiously aggravated offence under s.47 or s.20 OAPA carries a maximum penalty of seven years’ imprisonment (s.29 of the Crime and Disorder Act 1998 as amended by the Anti-Terrorism, Crime and Security Act 2001). An offence is racially or religiously aggravated if at the time of committing the offence, or immediately before or after doing so, the offender demonstrates towards the victim of the offence hostility based on the victim’s membership (or presumed membership) of a racial or religious group or the offence is motivated (wholly or partly) by hostility towards members of a racial or religious group based on their membership of that group. Note that the court must, first of all, be satisfied that the basic offence has been committed and, if it has, will then go on to consider whether it was racially or religiously aggravated. Courts have taken a wide view of what constitutes a ‘race’ and ‘racial group’. See DPP v M [2004] EWHC Crim 1453. In R v Rogers (Phillip) [2005] EWCA Crim 2863 CA it was held that when considering whether an offence was racially motivated contrary to s.28 of the Crime and Disorder Act 1998, hostility demonstrated to foreigners because they were foreign could be just as objectionable as hostility based on a more limited racial characteristic. It followed that the use of the words ‘bloody foreigners’ was capable of amounting to racially abusive or insulting words with the intent to cause fear or provoke violence. The defendant further appealed to the House of Lords (reported as R v Rogers [2007] UKHL 8). The certified question for the House of Lords was: Do those who are not of British origin constitute a racial group within s.28(4) of the Crime and Disorder Act 1998?
R v Rogers [2007] UKHL 8 The issue for the House of Lords was whether using the words ‘bloody foreigners’ and ‘get back to your own country’ (see Court of Appeal decision above) directed at three Spanish women walking along the road, amounted to racial aggravation. The actual offence which had been committed by the defendant in this case was one contrary to the Public Order Act 1986, which is not on the University of London Criminal law syllabus. Nonetheless, this case is relevant to us as the decision by the House of Lords will also apply to those offences which are on the syllabus. Section 28(4) of the Crime and Disorder Act provides that: … racial group means a group of persons defined by reference to race, colour, nationality (including citizenship), or by ethnic or national origins.
It was argued for the appellant that hostility must be shown towards a particular group, rather than to foreigners as a whole: the Act required that the group be defined by what it was rather than what it was not. Therefore, Spaniards were covered – and
Criminal law Chapter 9 Aggravated non-fatal offences against the person it was accepted by the defence that had he called them ‘bloody Spaniards’ he would have been in breach of the Act – but ‘foreigners’, that is non-British, were not. It was argued for the respondent that there were other indications that the statute intended a broad non-technical approach, rather than a construction which invited nice distinctions. The view of the House was that the flexible, non-technical approach propounded on behalf of the respondent made sense as both a matter of language and policy. Baroness Hale of Richmond said: The mischiefs attacked by the aggravated versions of these offences are racism and xenophobia. Their essence is the denial of equal respect and dignity to people who are seen as ‘other’. This is more deeply hurtful, damaging and disrespectful to the victims than the simple versions of these offences. It is also more damaging to the community as a whole, by denying acceptance to members of certain groups not for their own sake but for the sake of something they can do nothing about. This is just as true if the group is defined exclusively as it is if it is defined inclusively.
The certified question was answered in the affirmative. To read the case in its, please go to: www.publications.parliament.uk/pa/ld200607/ldjudgmt/jd070228/rogers.htm
9.4 Wounding or causing grievous bodily harm with intent and malicious wounding with intent to resist or prevent arrest Essential Reading
Wilson, Chapter 11: ‘Non-fatal offences’, Section 11.2 ‘Offences protecting physical integrity’, and in particular Part A ‘Wounding or causing grievous bodily harm with intent’.
Section 18 of the Offences Against the Person Act 1861 as amended by the Criminal Law Act 1967 provides: Whosoever shall unlawfully and maliciously by any means whatsoever wound or cause any grievous bodily harm to any person with intent to do some grievous bodily harm to any person or with the intent to resist or prevent the lawful apprehension or detainer of any person, shall be guilty of an offence, and being convicted thereof shall be liable to imprisonment for life.
Self-assessment How many different offences can you find within this definition? The seriousness of these offences is reflected in the penalty, which is a maximum sentence of life imprisonment. You will note that each one of these offences consists of the same basic elements which must be proved. These are that the defendant either maliciously wounded or maliciously caused grievous bodily harm to another person. In addition, in order to convict under s.18, the prosecution must prove an ulterior intent on the part of the defendant, i.e. that they, by wounding or causing grievous bodily harm, intended to do (cause) grievous bodily harm or intended to resist or prevent arrest. Note that it is not sufficient merely to prove the basic elements of the offence; the ulterior intent on the part of the defendant must also be proved beyond reasonable doubt. Where the basic elements of the offence can be proved, it does not matter that the defendant did not achieve his objective of causing grievous bodily harm or resisting or preventing arrest provided it can be proved that he or she intended to do so. Therefore, if A, intending to cause grievous bodily harm to B, stabs B but only manages to slightly wound him, A would be guilty of the offence of maliciously wounding with intent to do grievous bodily harm contrary to s.18 even though B did not suffer grievous bodily harm.
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Similarly, if A, intending to resist being arrested by B, maliciously wounds or causes grievous bodily harm to B, A will be guilty of the offence of maliciously wounding or maliciously causing grievous bodily harm with intent to resist arrest contrary to s.18 whether or not B is successful with the arrest. See R v Gregory (2009) below.
9.4.1 Actus reus ‘Wounding’ and ‘grievous bodily harm’ carry the same meanings as discussed above in relation to the offence contrary to s.20. The House of Lords in Mandair [1995] 1 AC 208, [1994] 2 All ER 715 has held that a judge is entitled to leave to a jury a conviction under s.20 as an alternative to s.18 because the term ‘causing’ is wide enough to include ‘inflicting’.
9.4.2 Mens rea ‘Maliciously’ bears the meaning discussed above in relation to the offence contrary to s.20. The defendant will either have intended to cause grievous bodily harm, in which case he is guilty of the s.18 offence, or he will merely have been reckless as to causing grievous bodily harm and, where appropriate, will be guilty of the s.20 offence. See Mandair [1995]. Note that these offences are often charged in the alternative (i.e. a defendant may be charged with offences contrary to ss.18, 20 and 47 of the Offences Against the Person Act 1861). This is because if the jury is not satisfied beyond reasonable doubt that the defendant, let’s say, intended grievous bodily harm (the mens rea for the most commonly charged of the s.18 offences), they might be satisfied that he foresaw this consequence (recklessness). Therefore if he has been charged with alternative offences, the jury will have the option of returning a conviction of the offence contrary to s.20. On the other hand, they might not be satisfied that the harm suffered by the victim amounted to a wounding or grievous bodily harm (see above for definitions) but, if they are of the view that the harm suffered amounted to actual bodily harm and are satisfied that there was, in fact, an assault or battery, it will be open to them to convict the defendant of the s.47 offence. Of course, it is always open to them to acquit the defendant of all three offences! Even where the defendant has only been charged with a s.18 offence, it is open to the judge to leave an alternative verdict to the jury. In R v Hodson (Danielle) [2009] EWCA Crim 1590 the appellant appealed against her conviction for wounding with intent to cause grievous bodily harm contrary to s.18 of the Offences Against the Person Act 1861. She had failed with her defence of selfdefence but argued that the judge should have left the alternative verdict of unlawful wounding contrary to s.20 of the same Act to the jury. Counsel for the respondent argued that neither the Crown nor the defence had run unlawful wounding as part of its case and to have left it to the jury would have distracted the jury from the real issues in the case (i.e. self-defence). The Court of Appeal allowed the appellant’s appeal. It held that, although there was no automatic requirement on the part of a judge to leave an alternative verdict to a jury where it would not properly reflect the facts of the case, if it was a realistically available verdict properly open to the jury and would not trivialise the offending conduct, then it should be left to the jury. This was particularly important where the defendant had been charged with an offence which required proof of specific intent and the alternative verdict did not. Remember ‘maliciously’ should be given its proper meaning (i.e. Cunningham-type recklessness). Merely wounding or causing grievous bodily harm with intent to resist or prevent arrest should not be sufficient to convict under s.18. The wounding or grievous bodily harm should be proved to have been effected ‘maliciously’ (i.e. the prosecution must prove that the defendant foresaw a risk of harm).
Criminal law Chapter 9 Aggravated non-fatal offences against the person In Morrison [1989] Cr App R 17 a police officer entered a house to arrest the defendant. The defendant, intending to resist arrest, ran to the window to try to escape, at which point the police officer took hold of the defendant’s clothes to try to stop him. The defendant jumped through the window thereby dragging the police officer to the window and she suffered cuts to her face. The defendant was convicted of the s.18 offence of maliciously wounding with intent to resist arrest and appealed to the Court of Appeal. The Court of Appeal quashed his conviction. It held that ‘maliciously’ bears the subjective meaning of recklessness therefore the jury should have been directed to consider whether the defendant foresaw a risk of some harm. In R v Gregory (Matthew) [2009] EWCA Crim 1374 the appellant appealed against his conviction for wounding with intent to cause grievous bodily harm contrary to s.18 of the Offences Against the Person Act 1861. One of the grounds of his appeal was that the trial judge had not directed the jury on intention in accordance with the specimen directions outlined by the Judicial Studies Board and in accordance with the case of R v Purcell [1986] 83 Cr App R 45. (Note that there is a link on the criminal law section of the VLE to the website of the Judicial Studies Board where you can find the specimen directions). It was argued that the jury should have been directed that: ‘you must feel sure that the defendant intended to cause serious bodily harm to the victim; you can only decide what his intention was by considering all the relevant circumstances and in particular what he did and what he said about it’. It was submitted by the Counsel for the appellant that the trial judge should have emphasised the fact that the jury had to be sure on intent. What the trial judge had said was: [T]o find him guilty on a more serious count [s.18 of the Offences Against the Person Act 1861 it must be proved] that he actually intended to cause grievous bodily harm. Grievous bodily harm means some really serious injury; a broken arm for example. It is not that the injury in the present case constituted grievous bodily harm. He is not charged with causing grievous bodily harm. The question is even though he did not actually cause grievous bodily harm, did he nevertheless positively intend to cause grievous bodily harm when the attack took place.
The Court of Appeal held that the JSB specimen directions were a framework to provide assistance and guidance and did not need to be followed slavishly. The important issue was that the jury was given a direction which was accurate, helpful and correctly reflected the law. The essential ingredients were present and it could not amount to a misdirection. The appeal was dismissed. Note: this case also illustrates something that students often miss – that, in order to be convicted of a s.18 offence, the victim does not need to actually suffer grievous bodily harm. It is the intention to cause such harm which is important and, if the other ingredients of the offence are also proved, a defendant can be found guilty. Of course, in most cases brought under this section, the victim will have suffered grievous bodily harm. Have a look at the section now. Note how it is drafted and consider the ingredients of the various offences it provides. ‘Intention’, and intention alone, is necessary with respect to the ulterior intent (see Belfon [1976]). So, where appropriate, the prosecution must prove either (a) that it was the defendant’s purpose to cause grievous bodily harm or, if it was not his purpose, (b) that he knew that grievous bodily harm was a virtually certain consequence of his act. In case (b) such knowledge is evidence from which the jury may infer that he had the requisite intent. See Bryson [1985] Crim LR 669. Note that, in respect of those particular offences contrary to s.18, intent to resist or prevent arrest is negatived if the attempted arrest is unlawful (Walker [1954]). But if the apprehension is lawful it was held in Bentley (1850) 4 Cox 406 that it is no defence that the defendant believed it to be unlawful. See also Lee [2000] All ER (D) 1215; Hewitt v DPP [2002] All ER (D) 69.
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Activity 9.5 What would be the appropriate offences in the following circumstances? a. Sukhi shook his fist in Bertie’s face, threatening to break his nose. b. Sandra hit Fatima in the face causing Fatima to suffer a black eye. c. James and Kuljeet decided, for fun, to have an arm wrestling competition to see who was the strongest. Unfortunately, as Kuljeet’s arm was wrestled to the table the force broke his wrist and dislocated his shoulder. d. Jane stabbed Susie, intending to cause her serious injury. Susie, however, sustained only a slight wound. e. Roger, a police officer, tried to effect a lawful arrest on Simon. Simon hit Roger intending only to cause slight harm to help him get away. Roger suffered a fractured skull.
Summary A range of simple and aggravated non-fatal offences against the person has now been considered. You should be aware of the differences between these offences and know which are the appropriate ones to consider when faced with a problem question. The offences contrary to s.18 are the most serious and carry a maximum penalty of life imprisonment. They require proof of an ulterior intent, either to cause grievous bodily harm or to resist or prevent arrest – depending upon which offence is charged. The offence contrary to s.20 carries a maximum penalty of five years’ imprisonment. Recklessness is sufficient mens rea for this offence. The mens rea requirement for the offence contrary to s.47, for which the maximum penalty is also five years’ imprisonment, is the mens rea for the assault or battery which forms the basis of this offence.
Sample examination question John was walking home having just beaten Roger in a fight. They had fought because Roger was angry at John having carved the letter ‘J’ onto Amy’s arm using a penknife. Amy was Roger’s 15-year-old sister, who had begged John to do this as she was in love with him. John had reluctantly agreed. The wound was neither very big nor very deep although it did require one stitch. John and Roger had decided to settle their differences by having a fight. John had punched Roger, knocking him over and causing him to fracture his skull. John had run away when the police were called. A beggar, Carly, who was carrying a baby in her arms approached John and asked him for money to feed the baby. This incensed John who hated beggars and he pushed her, causing her to drop the baby, slightly bruising it. The police then caught up with John. PC Bill tried to arrest him. John pushed PC Bill out of the way in an attempt to get away, causing PC Bill to stagger. In an effort to save himself from falling, PC Bill put his arm out and pushed it through a shop window, sustaining severe cuts to his arm. Discuss John’s criminal liability.
Advice on answering the question There are a number of issues to be considered as you answer this question and you should ensure that you consider them separately. What follows are points to note to help you construct your answer to the question. Remember to relate what you say to the facts of the question and always provide an authority (case/statute) for your propositions. When, in relation to any given set of facts, you need to consider more than one offence you should consider the most serious offence first.
Criminal law Chapter 9 Aggravated non-fatal offences against the person John and Amy – Consider: a. Malicious wounding contrary to s.20 OAPA i. Actus reus: ‘Wounding’. A wound is a break in the continuity of the whole skin (Moriarty v Brooks [1834] and Eisenhower [1983]). The facts of the question indicate that the actus reus is established. ii. Mens rea: ‘Maliciously’. It must be proved that John was aware that his conduct carried a risk of wounding or causing some harm, albeit not serious harm (Mowatt [1967], Savage and Parmenter [1991]). If (as is likely from the facts of the question) John was aware of such a risk then the mens rea is established. b. Assault occasioning actual bodily harm contrary to s.47 OAPA i. Assault: The actus reus of assault is committed where the defendant causes another to apprehend the application of immediate unlawful violence (Fagan v MPC [1969], Savage and Parmenter [1991], Venna [1975] 3 All ER 78, Ireland [1997]). It makes no difference that Amy was not frightened: it would be enough that she apprehended the immediate violence. The mens rea is intention or recklessness on the part of John as to causing Amy to apprehend etc. ii. Battery: The actus reus of battery is the infliction of unlawful violence and the mens rea is intention or recklessness as to that infliction (Rolfe [1936]). The facts of the question indicate that this offence is established. iii. Actual bodily harm: This is harm which is more than transient or trifling and includes any injury likely to interfere with the health or comfort of Amy (Miller [1954]). Her injury is likely to amount to actual bodily harm. iv. Occasioning: It must be proved that the common assault caused the actual bodily harm. No foresight is required to be proved on the part of the defendant (Roberts [1971]). c. The defence of consent You should now consider whether Amy’s consent to the injury is likely to negate John’s criminal liability. Although Amy’s consent was real and not induced by fraud or duress there are limits on the operation of the defence of consent. You should deal with the cases of Attorney General’s reference (No. 6 of 1980) and Brown [1993] (HL) where it was decided that, subject to public policy exceptions, consent will not operate where actual bodily harm is likely or intended. It is unlikely that a public policy exception would be made here. Although in Wilson [1996], consent to branding by a husband on his wife was a defence, Amy is only 15 and even though it was not done for sexual pleasure but, presumably, for personal adornment, an analogy is more likely to be made with the Tattooing of Minors Act 1969 which provides that the apparent consent of a child to a tattoo will never be valid. John and Roger – Consider: a. Causing grievous bodily harm with intent to do grievous bodily harm contrary to s.18 i. Actus reus: Causing grievous bodily harm. GBH is (very) serious harm (Smith [1961], Saunders [1985], Janjua and Choudhury [1999]). A fractured skull is likely to amount to grievous bodily harm. ii. Mens rea: Intention to cause grievous bodily harm. The prosecution would therefore need to prove that it was either (a) John’s purpose to cause grievous bodily harm or, if it was not his purpose, the jury may find intent where it is proved (b) that he knew that grievous bodily harm was a virtually certain consequence of his act (Bryson [1985]). If the jury are not satisfied beyond reasonable doubt that John committed the actus reus of the offence with the requisite mens rea then they must acquit.
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b. Maliciously wounding or inflicting GBH contrary to s.20 Note that even if the prosecution has not charged John with this offence, the House of Lords held in Mandair [1995] that a judge is entitled to leave to the jury a conviction under s.20 as an alternative to s.18 because the term ‘causing’ is wide enough to include ‘inflicting’. i. Actus reus: As for s.18 (above). ii. Mens rea: ‘Maliciously’. It would need to be proved that John was aware that his conduct carried a risk of causing some harm, albeit not serious harm (Savage and Parmenter approving Mowatt [1967]). If the jury is not satisfied beyond reasonable doubt that John committed the actus reus of the offence with the requisite mens rea then they must acquit. In that case they might consider: c. Assault occasioning actual bodily harm contrary to s.47 The elements of this offence are discussed above. d. The defence of consent If actual bodily harm was likely or intended, John will not succeed with this defence (Attorney General’s reference (No. 6 of 1980) and Brown [1993] (HL)). It would be contrary to public policy to allow this defence in the case of a street fight (Attorney General’s Reference (No. 6 of 1980)). John and Carly – Consider: a. Battery and possibly an assault if Carly apprehended the push The elements of these offences are considered above in relation to John and Amy. John and the baby – Consider: a. Battery: See above See also Haystead [2000]. Provided the actus reus and mens rea for assault and/or battery against Carly can be proved, John could be guilty of battery in respect of the baby. John and Bill – Consider: a. Maliciously wounding or causing grievous bodily harm with intent to resist arrest contrary to s.18 i. Actus reus: Wounding and grievous bodily harm are defined above. There is a wound. The question states that the cut is severe so it might amount to GBH. ii. Mens rea: ‘Malicious’ in relation to the wounding in addition to the ulterior intent to resist arrest. See Morrison [1989] where it was held that ‘malicious’ bears its subjective meaning so the jury should be directed to consider whether John foresaw a risk of some harm. Although the question clearly states that John had the ulterior intent to resist arrest, if the jury is not satisfied beyond reasonable doubt that he foresaw a risk of some harm then they must acquit. b. Maliciously wounding with intent to cause grievous bodily harm contrary to s.18 (see above). c. Malicious wounding or inflicting grievous bodily harm contrary to s.20 (see above) d. Assault occasioning actual bodily harm contrary to s.47.
Criminal law Chapter 9 Aggravated non-fatal offences against the person Note that in all of the scenarios there was the likelihood of the offence of battery and possibly assault. In those situations where the s.47 offence was considered there would be no need to specifically point this out as assault and/or battery would need to be considered in relation to the s.47 offence. In addition, in this question common assault arises more than once because, as well as being an offence in itself, it is also a constituent element of another offence. Therefore once you have explained the offence, you do not need to explain the basic elements again. It is appropriate to refer to your previous explanation. However, where a new point requires discussion (as in John and the baby) you must ensure that you point this out. The same applies to any offence which appears more than once in the same question.
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Reflect and review Look through the points listed below: Are you ready to move on to the next chapter? Ready to move on = I am satisfied that I have sufficient understanding of the principles outlined in this chapter to enable me to go on to the next chapter. Need to revise first = There are one or two areas I am unsure about and need to revise before I go on to the next chapter. Need to study again = I found many or all of the principles outlined in this chapter very difficult and need to go over them again before I move on. Tick a box for each topic. Ready to move on
Need to revise first
Need to study again
I can explain the elements of the offences contrary to ss.47, 20 and 18 of the Offences Against the Person Act 1861.
I can explain the difference between actual and grievous bodily harm.
I can explain what is meant by a ‘wound’.
I can give a coherent account of the principles governing the defence of consent as it applies to both the common and aggravated non-fatal offences.
If you ticked ‘need to revise first’, which sections of the chapter are you going to revise? Must revise
Revision done
9.1 Assault occasioning actual bodily harm
9.2 Malicious wounding or inflicting grievous bodily harm
9.3 Racial or religious aggravation
9.4 Wounding or causing grievous bodily harm with intent
Before you continue to the next topic listen again to audio presentation 10 to recap and consolidate what you have learnt.
10 Sexual offences
Contents Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132 10.1
The social context of sexual offences . . . . . . . . . . . . . . . . . . . 133
10.2
The law reform process . . . . . . . . . . . . . . . . . . . . . . . . . 134
10.3
Rape . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136
10.4
Assault by penetration . . . . . . . . . . . . . . . . . . . . . . . . . . 138
10.5
The meaning of ‘sexual’ . . . . . . . . . . . . . . . . . . . . . . . . . 139
10.6
Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141 Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149
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Introduction This is a sensitive area of criminal law. There is often a fine dividing line between lawful and unlawful acts here – many rapes, for example, do not match the stereotype of violent ‘stranger’ rape and are often committed by someone known to the victim in situations where there is a dispute as to whether the victim consented to sexual intercourse. These types of sexual offences are often difficult to prove and may hinge on the precise nature of an act or on assessing whether valid consent existed. Where the victim and the defendant are the only people present at the time of the offence this can be difficult and trials of sexual offences in court may involve sensitive and often traumatic questioning of both parties about their alleged behaviour. The criminal law is only concerned with acts of a sexual nature which are non-consensual. Other forms of touching another person which are non-consensual may be assaults but are not sexual offences, the latter usually being more serious charges. A process of radical law reform resulted in the passing of the Sexual Offences Act 2003, a comprehensive consolidation and amendment of the law in this area. The Act contains a very wide range of sexual offences ranging from rape to offences against children and offences related to the publication of pornography. For the purposes of this course you will only need to know about the two most serious sexual offences contained in ss.1 and 2 of the Act. These offences share a common mens rea but the actus reus elements of each offence are subtly different (although there is deliberate overlap between them). In order fully to understand these offences you will also need to develop a good knowledge of the concepts of consent (ss.74–76) and what is meant by the term ‘sexual’ (s.78).
Essential reading and listening
Wilson, Chapter 12: ‘Sexual offences’.
Audio presentation 11.
Ashworth, A. and J. Temkin ‘The Sexual Offences Act 2003: (1) Rape, sexual assaults and the problems of consent’ (2004) Criminal Law Review pp.328–46. (Included in your study pack.)
Home Office, Protecting the public: strengthening protection against sex offenders and reforming the law on sexual offences. White Paper CM 5668 (TSO, 2002) [ISBN 0101566824] Chapters 2 and 3. (Included in your study pack.)
Clarkson, C.M.V., C. H. Keating and S. Cunningham Criminal law: text and materials. (London: Sweet & Maxwell, 2003) fifth edition [ISBN 0420468609] Chapter 7, pp.600–610. (Included in your study pack.)
Learning outcomes By the end of this chapter and the relevant readings you should be able to:
outline the social context of sexual offences and difficulties with the criminalisation of forms of sexual behaviour
explain the inadequacies of the previous law on sexual offences and identify the ways in which the Sexual Offences Act 2003 has changed liability for unlawful sexual acts
outline the sexual offence of rape and identify the actus reus and mens rea elements of this offence
outline the sexual offence of assault by penetration and identify the actus reus and mens rea elements of this offence
distinguish between the offences of rape and assault by penetration and explain the extent to which they overlap
outline the sexual offence of sexual assault and identify the actus reus and mens rea elements of this offence
Criminal law Chapter 10 Sexual offences
distinguish between the offences of rape, assault by penetration and sexual assault and explain the extent to which they overlap
outline the sexual offence of causing another to engage in sexual activity and identify the actus reus and mens rea elements of this offence
explore the meaning of the term ‘sexual’ and understand how liability may arise in respect of acts which are ambiguous in terms of their sexual nature
explain what is meant by the term ‘consent’ and identify situations where consent to sexual acts may not be valid.
10.1 The social context of sexual offences The law on sexual offences incorporates some forms of behaviour which are inherently unlawful because they are considered to be harmful (whatever the circumstances in which they are committed) or because they are universally considered to be immoral (such as bestiality or sexual assault on a young child). However, the offences covered in this guide relate to sexual activities which are not inherently unlawful, but which, when committed without the consent of the victim, become unlawful. This makes the construction of criminal offences in this area difficult as legislators have to balance the protection of potential victims from harm and immoral conduct with the personal autonomy of citizens and their freedom to engage in the sexual activities of their choice. While it is always important that the boundaries of criminal liability are carefully drawn, to avoid undue interference with citizens’ liberty on the one hand but to adequately protect citizens from unjustified harm on the other, an examination of the offence of rape in its social context demonstrates how in this area of conduct special care is needed in designing criminal offences which reflect the interests of both the victim and the defendant.
10.1.1 What is rape? A stereotypical image of rape is the forced or violent imposition of sexual intercourse by a man (who is a stranger to the victim) upon a woman. This, however, is rarely the form that rape takes in practice. Violence may rarely be used and the victim and the perpetrator often know each other; indeed they may even be in an intimate relationship with each other. Moreover, the victim of rape may commonly be male or female. The law has not recognised the notion of the female rapist, but undoubtedly there are situations in which a woman may force a man to commit a sexual act without his consent.
Self-reflection a. Write a brief description of what you think the offence of rape is. b. Now read Clarkson and Keating, pp.591–94, and answer the following: i. What are the common or stereotypical assumptions that society makes about the offence of rape? ii. What objections do Clarkson and Keating raise to these assumptions? iii. Do you think (in general terms, not in legal terms) rape is a sexual offence, an offence of violence, or a form of trespass? These questions have no right or wrong answers and are designed to encourage you to think about what ‘rape’ means in your own view or in your own social context. First, think about how you would describe the offence of rape without any reference to the law. Then you can compare your own views with those set out in the text of Clarkson and Keating. Having read that extract, have your views on rape changed? You might like to discuss this with other students (if possible) and compare your description of rape with theirs.
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10.1.2 The level of sexual offending It is difficult to know exactly how widespread sexual offending is in any society. This is partly because of the common assumptions about these offences that you reviewed in section 10.1.1 above – some sexual practices may technically constitute an offence of rape but are not commonly regarded as such. This may also be because of the private and sensitive nature of sexual activities – many sexual offences may never be uncovered because victims do not report them. Even where they are reported, it has traditionally been very difficult to convict sex offenders because of evidential problems in assessing whether the victim consented and because a public trial in which such issues are discussed may be so traumatic for the victim (and in some cases for the defendant) that these parties are unwilling to give evidence.
Activity 10.1 Read Clarkson and Keating in your study pack and complete the following exercises. a. List as many reasons as you can think of why a victim may be reluctant to report a rape to the police. b. List as many reasons as you can think of why those incidents reported to the police may still not appear in the official statistics on rape. No feedback provided.
Summary This section has examined the social context of sexual offences. Focusing on the offence of rape, an examination of the meaning of the concept of rape, the known extent of this type of offending and literature on the problems of criminalising rape demonstrates how this is a sensitive and complex area of criminal law in which the boundaries of criminal liability need to be carefully drawn.
Useful further reading
Lacey, N. Unspeakable subjects. (Oxford: Hart Publishing, 1998) [ISBN 1901362345] Chapter 4.
Temkin, J. Rape and the legal process. (Oxford: Oxford University Press, 2002) [ISBN 0198763557] Chapter 1.
Horder, J. and S. Shute ‘The wrongness of rape’ in J. Horder (ed) Oxford essays in jurisprudence. (Oxford: Oxford University Press, 2000) [ISBN 0198268580].
Childs, M. (2001) ‘Sexual autonomy and the law’ 64 Modern Law Review 309.
Reminder of learning outcomes By this stage you should be able to:
understand the social context of sexual offences and difficulties with the criminalisation of forms of sexual behaviour.
10.2 The law reform process Essential reading
Wilson, Chapter 12: ‘Sexual offences’, Section 12.2 ‘The social context’ and Section 12.3 ‘Rape: the historical context’.
Home Office, Setting the boundaries: reforming the law on sex offences. (London: Home Office, 2000). Summary report and recommendations. This is included in your study pack.
Home Office, Protecting the public: strengthening protection against sex offenders and reforming the law on sexual offences. White Paper CM 5668 (TSO, 2002) [ISBN 0101566824] Chapters 2 and 3.
Criminal law Chapter 10 Sexual offences In 2000 the Home Office began a process of reforming the law on sexual offences. In its existing form the law at that time was thought to be antiquated and inconsistent with modern moral and social standards. Many of the offences, though amended slightly over the years, had been defined in 1956. The process began with the publication of a consultation paper called Setting the boundaries (2000). The paper set out reasons why current law was inappropriate or in need of reform, as well as suggestions as to how it should be changed. The paper then invited experts and members of the public who were interested to reply to the paper and offer their views on the proposed reforms. After the consultation period, a White Paper called Protecting the public was published in 2002, which set out firmer proposals for changes to the law, in the light of comments on the consultation paper. Finally, a Bill was drafted which, following parliamentary debates in the Houses of Commons and Lords, was passed as the Sexual Offences Act 2003.
Activity 10.2 Read the summary report (pp.1–8) and recommendations on pp.1–16 of the consultation paper Setting the boundaries and answer the following. a. What were the three main aims (or terms of reference) of the review of the law on sexual offences? b. What recommendations are proposed to change the law on rape and sexual assault? The proposals sought to modernise the law and ensure that activities which were becoming more common but which were difficult to criminalise under the previous law could be adequately punished (such as ‘date rape’ and the use of a ‘date rape’ drug). To some extent amendments to the original Sexual Offences Act 1956 in 1994 and 2000 had achieved this modernisation process by ensuring that male rape and marital rape were brought within the definition of the offence of rape. The reform proposals sought to clarify these amendments by setting out a clear definition of rape and sexual assault which incorporates all of the previous amendments. However, more widely, the reforms sought to re-think the law on sexual offences in order to achieve an appropriate balance between the interests of a defendant, a victim and the general public (as both potential victims and citizens whose moral standards need to be upheld). Further, since the passing of the Human Rights Act in 1998, there was a need to ensure that the new law on sexual offences was human rights compatible. This meant balancing the due process rights of a defendant accused of an offence with the rights of a victim and the public to protection from sexual abuse and to see sexual offenders adequately punished.
Activity 10.3 Read Chapters 2 and 3 (and the introductory overview chapter) of the White Paper Protecting the public and answer the following questions. a. What were the problems with existing law which prompted the Home Secretary to call the law on sexual offences ‘archaic, incoherent and discriminatory’? b. What are the key recommendations made to improve the law on rape, sexual assaults and consent? c. In what way do these recommendations differ from those made in the consultation paper Setting the boundaries? d. How far have these recommendations provided an appropriate balance between the interests of the defendant, the victim and the public?
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Summary The law on sexual offences has recently undergone a radical process of reform, culminating in the Sexual Offences Act 2003, which contains the current law which is discussed in this chapter. The reform process has involved the publication of reform proposals and reconsideration of those proposals in the light of consultation. The reforms had a number of overriding aims, which sought to modernise and clarify the law on rape, sexual assaults and consent and to incorporate sexual activities which previously lay outside the law on sexual offences.
Useful further reading
Temkin, J. (2000) ‘Getting it right: sexual offences law reform’ 150 NLJ 1169.
Reminder of learning outcomes By the end of this section you should be able to:
explain the inadequacies of the previous law on sexual offences and identify the ways in which the Sexual Offences Act 2003 has changed liability for unlawful sexual acts.
10.3 Rape Essential reading
Wilson, Chapter 12: ‘Sexual offences’, Section 12.4 ‘Rape: the elements’.
10.3.1 Actus reus of rape Rape remains the most serious sexual offence, carrying a maximum penalty of life imprisonment. Under previous legislation, rape consisted of unlawful sexual intercourse without consent and could only be committed by a man upon a woman. Subsequent legislation widened the actus reus of rape to some extent but the Sexual Offences Act 2003 (SOA 2003) has widened it much further. Section 1 SOA 2003 now defines the actus reus of rape as follows. A person (A) commits an offence if he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis and B does not consent. This definition states more specifically than the old law which sexual activities amount to rape. Sexual intercourse previously meant penetration of the vagina only; the offence of rape now includes anal and oral sexual penetration as well as vaginal sexual penetration. The courts will make no distinction between types of penetration and there is no presumption that penetration of one orifice is more serious than another (R v Ismail [2005] EWCA Crim 2936). It is important that you know precisely which sexual acts can amount to rape as this is one of the key features that distinguishes the offence of rape from that of assault by penetration (see s.10.4 below). The offence of rape can clearly only be committed by a man since penetration must be performed with a penis, although the victim may be male or female. The word ‘unlawful’ has been removed from the definition of rape, since this was originally deemed to mean that the sexual intercourse had to take place outside of a marital relationship. The House of Lords had reviewed this antiquated presumption in R v R [1992] 1 AC 599 and declared that rape within marriage could be a criminal offence.
The penetration must take place without the consent of the victim. This will be discussed more fully in s.10.6 below. However, note that s.79(2) SOA 2003 confirms that penetration is a continuing act, from the moment of entry to the moment of withdrawal.† This confirms the previous common law position set out in Kaitamaki [1985] AC 147.
†
Section 79 of the SOA 2003 provides some general definitions of words and phrases used throughout the legislation.
Criminal law Chapter 10 Sexual offences
Activity 10.4 F penetrates G with her consent. G then withdraws her consent but F refuses to withdraw and continues to have sex with her. Has F committed the actus reus of rape?
10.3.2 Mens rea of rape There are two parts to the mens rea of rape:
intentional penetration
lack of a reasonable belief that V was consenting.
The first part is straightforward – it is difficult to envisage a situation where D might recklessly (that is, accidentally) penetrate one of the relevant orifices of V in a sexual way. As regards the second part of the mens rea, D may raise a defence that he believed that V was consenting to the penetration. If the jury consider that this belief is reasonable then the mens rea for the offence may not be found. This creates a partially objective test which is a fundamental change in the mens rea of rape. Under the previous common law set out in Morgan [1975] 2 All ER 347, D’s belief would have to have been honestly held (subjective), but not necessarily reasonable. The SOA 2003 requires the belief to be both honestly held and reasonable (objective) in order to escape liability.
Activity 10.5 D wishes to have sex with V. V’s ex-boyfriend tells D that V likes to pretend she does not consent as it increases her sexual pleasure. D penetrates V. V, who does not consent, shouts ‘No! No! No!’ but D does not withdraw. Has D committed rape? Section 1(2) SOA 2003 further explains that: Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.
What steps does D have to take in order to ascertain whether or not V consents? The Act does not specify any particular steps that need to be taken, although it was made clear in the Parliamentary debates on the Bill that D does not necessarily always have to ask V directly ‘Do you consent?’ It is likely that this provision suggests that where D did take steps to ascertain whether or not V consented, these steps will be taken into account in assessing the reasonableness of D’s belief in consent. The jury may also consider wider circumstances, such as D’s age, mental capacity, previous relationship with V or his general sexual experience, or any other characteristic or circumstance that may affect D’s ability to understand the nature and consequences of his behaviour.
Summary This section provides an overview of the key actus reus and mens rea elements of the offence of rape. The actus reus of the offence is very specifically defined in s.1 SOA 2003, as penetration of the relevant orifices by a man’s penis. This must take place without the victim’s consent. In common with the other sexual offences outlined below, the mens rea essentially hinges on a lack of reasonable belief by the defendant that V was consenting to the sexual act.
Self-assessment questions 1. Outline, in one sentence, the actus reus of rape. 2. Outline, in one sentence, the mens rea of rape. 3. What is meant by a ‘reasonable belief that V consented’?
Reminder of learning outcomes By this stage you should be able to:
outline the sexual offence of rape and identify the actus reus and mens rea elements of this offence.
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10.4 Assault by penetration Essential reading
Wilson, Chapter 12: ‘Sexual offences’, Section 12.5 ‘Assault by penetration’.
10.4.1 Actus reus of assault by penetration This is a new offence created by s.2 SOA 2003. To some extent it overlaps with the offence of rape in s.1, and indeed the maximum penalty for the offence is life which suggests that it is regarded with the same seriousness as rape. There are some significant differences between the two offences, however. Assault by penetration is committed where: A intentionally penetrates the vagina or anus of another person (B) with a part of his body or anything else, B does not consent to the penetration and the penetration is sexual.
Penetration for this offence must be of the vagina or anus only, and does not include the mouth. So the list of relevant orifices is more narrow for this offence than for rape. D may use any part of his or her body or any object for this penetration. This may include a penis, if D is a man, but goes wider and can include other body parts such as a finger or a tongue. This means that this offence can be committed by either a man or a woman and the victim may also be of either gender. In this respect the offence of assault by penetration is much wider than rape and there is a deliberate overlap between the two offences. Penetration must take place without the consent of the victim in order for the act to constitute an offence. As with rape, penetration is a continuing act and consent must be valid throughout the act in order to avoid liability. Section 2 specifies that for this offence the penetration must be sexual. The meaning of the word ‘sexual’ is defined in s.78 and is explored further in s.10.5 below. It was important to specify that the penetration is sexual because there may be situations in which A penetrates B’s vagina or anus with a body part or object which is not sexual and which should lie outside the ambit of criminal liability (although absence of consent would still be a relevant factor). This was not specified in relation to rape, because it can safely be assumed that any penetration of any orifice by A using his penis is inherently and obviously sexual.
Activity 10.6 In the following scenarios, has A committed the actus reus of rape or assault by penetration, or both: a. A penetrates B’s anus with his penis, without B’s consent. b. A penetrates B’s mouth with his tongue, without B’s consent. c. A penetrates B’s anus with his finger, without B’s consent. d. A penetrates B’s vagina with a pen, without B’s consent. e. A penetrates B’s mouth with his penis, without B’s consent.
Activity 10.7 Read the Home Office White Paper Protecting the public (provided in your study pack) and consider the following question: Why was the Sexual Offences Act 2003 drafted with a deliberate overlap between the offences contained in ss.1 and 2?
Criminal law Chapter 10 Sexual offences
10.4.2 Mens rea of assault by penetration The mens rea of this offence is identical to that of rape, namely that D must:
intentionally penetrate V
lack a reasonable belief in V’s consent.
These elements are discussed above in s.10.3.2. Interestingly, there is no mental element in relation to the ‘sexual’ nature of the penetration for a s.2 offence. In other words, the prosecution does not need to establish that D intended the penetration to be sexual. This means that D cannot escape liability for a sexual offence merely by claiming that he intended to injure V rather than to derive sexual pleasure from the act.
Summary This section provides an overview of the key actus reus and mens rea elements of the offence of assault by penetration. The actus reus of the offence is defined in s.2 SOA 2003, as penetration of the relevant orifices by any part of D’s body or anything else. This must take place without the victim’s consent. In common with the other sexual offences outlined below, the mens rea essentially hinges on a lack of reasonable belief by the defendant that V was consenting to the sexual act.
Self-assessment questions 1. Outline, in one sentence, the actus reus of assault by penetration. 2. Outline, in one sentence, the mens rea of assault by penetration. 3. What is the difference between the actus reus of rape and the actus reus of assault by penetration?
Reminder of learning outcomes By this stage you should be able to:
outline the sexual offence of assault by penetration and identify the actus reus and mens rea elements of this offence
distinguish between the offences of rape and assault by penetration and explain the extent to which they overlap.
10.5 The meaning of ‘sexual’ Essential reading
Wilson, Chapter 12: ‘Sexual offences’, Section 12.6 ‘Sexual assault’.
Both of the sexual offences outlined above require that D commits an act or causes an act to be committed which is sexual in nature. This serves to distinguish between liability for sexual offences and liability for non-sexual assaults. Touching another without their consent may be an assault under common law, but it will only incur the more serious liability as a sexual offence if the touching can be considered to be sexual. The definition of rape in s.1 does not use the word ‘sexual’; this is because it is presumed that to penetrate with the penis cannot be anything other than sexual. However, s.2 requires that the penetration must be sexual, because D may penetrate the vagina or anus of V for a non-sexual purpose and this would not constitute a sexual offence. So for s.2, it is an essential part of the actus reus, that you establish that the penetration is sexual. Section 78 SOA 2003 gives further guidance on what the meaning of ‘sexual’ is. This section effectively confirms the common law meaning of ‘indecent’ defined in Court [1989] AC 28.
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Some acts may be so inherently sexual in nature that no-one would question whether they are sexual and it may appear that the word ‘sexual’ needs no further definition. If a man penetrates the vagina of a woman with his penis, few would define this act in any way other than as a sexual act. However, many other activities may be rather more ambiguous and it may depend on the perpetrator’s purpose in committing the act. For example, penetration of a woman’s vagina with a man’s finger may be viewed as sexual in some circumstances, or as a medical procedure in others. Whether the act is sexual or not may depend on a person’s sexual preferences or moral standards. In such a case, how are we to judge whether an act is sexual or not? More importantly, can we accept a defendant’s plea in defence to a charge that they considered their acts to be innocent? Section 78 sets out a test for assessing whether an act is sexual in the following way: For the purposes of this Act, penetration, touching or any other activity is sexual if a reasonable person would consider that:
whatever the circumstances or any person’s purpose in relation to it, it is because of its nature sexual, or,
because of its nature it may be sexual and because of the circumstances or the purpose of any person in relation to it (or both) it is sexual.
The first part of this test deals with acts which a reasonable person would consider inherently and unambiguously sexual. A defendant who claims that, by their moral standards or for their purposes, they did not consider their acts to be sexual would not avoid liability if, by objective moral standards, the act was obviously sexual. The second part of the test deals with acts which are ambiguous. If it is not clear whether an act is sexual by objective standards the jury may consider the circumstances in which the act took place or they may consider the subjective purposes of either the defendant or the victim in participating in it to ascertain whether it was in that case sexual. Note that the test permits consideration of D’s purpose but not his motive. As in all criminal offences, D’s motive, or reason, for committing an offence is irrelevant.
Activity 10.8 Read the case of George [1956] Crim LR 52. Apply the test in s.78 SOA 2003 to the facts of this case and assess whether the jury would have found D guilty of a sexual assault under the new Act. How, if at all, does this outcome differ from the decision made in that case under a previous Sexual Offences Act?
Activity 10.9 Now read the case of Court [1988] 2 All ER 221 and apply the test to the facts of that case and assess whether the jury would have found D guilty of a sexual assault under the new Act. How, if at all, does this outcome differ from the decision made in that case under a previous Sexual Offences Act? Does your answer differ from your answer to activity 10.8? If so, why?
Activity 10.10 Read the case of R v H [2005] EWCA Crim 732 and consider the following questions: a. What were the material facts in this case? b. Was D’s act inherently sexual? c. If, not, was it inherently non-sexual? d. If not, what circumstances were relevant to the jury in deciding whether D’s act was sexual?
Criminal law Chapter 10 Sexual offences
Summary This section provides an exploration of the meaning of the word ‘sexual’, an essential component in all the sexual offences which differentiates them from non-sexual assaults. Section 78 SOA 2003 provides guidance on assessing whether an act is sexual where there is ambiguity regarding the nature of D’s acts. This section provides an objective test which confirms the test previously set out in Court. The sexual nature of any act must therefore be determined by reference to the standards of the reasonable person.
Self-assessment questions 1. Outline, in no more than three sentences, the legal test for determining whether an act is sexual. 2. What may a jury take into account in applying this test to an act which is not inherently sexual? 3. Is this test objective, subjective or both?
Reminder of learning outcomes By this stage you should be able to:
explore the meaning of the term ‘sexual’ and understand how liability may arise in respect of acts which are ambiguous in terms of their sexual nature.
10.6 Consent Essential reading
Wilson, Chapter 12: ‘Sexual offences’, Section 12.8 ‘Consent’ and Chapter 11: ‘Nonfatal offences’, Section 11.4 ‘Defences to offences against the person’.
10.6.1 Introduction Consent is an essential ingredient in both the actus reus and mens rea of all sexual offences. In order to establish liability it must be shown that as a matter of fact V did not consent to the sexual activity and also that D did not reasonably believe that V consented to the act. These are separate questions that you need to address individually in problem questions, beginning with the actus reus issue. If V is found to consent to the activity, there can be no liability and D’s belief in her consent is irrelevant. If V does not consent, or if her consent is invalid for one of the reasons set out in ss.75 and 76 (see 10.6.2 and 10.6.3 below) then there is prima facie liability and it is then essential to examine D’s state of mind regarding V’s consent. Consent posed a number of problems in common law before the 2003 Act was passed and the law was unclear as to what consent really meant. Was it different to mere submission? Did V have to communicate her positive consent, or could it be presumed from her (or his) lack of protest? Could consent given under threat or whilst intoxicated be valid? The 2003 Act sought to clarify the law on these and other issues. Section 74 provides a general definition of consent, s.75 provides a list of circumstances in which consent is presumed to be invalid and s.76 provides a set of circumstances in which consent is conclusively (or automatically) deemed invalid. In approaching a problem question in this area, it makes more sense to use these three sections in reverse order. If, in a given scenario, the consent issue falls under s.76, you can clearly state that consent is invalid and then proceed on to the mens rea issue without further consideration of ss.74 and 75. Similarly if the facts of your question fall under s.75 you can assess the validity of consent without reference to s.74’s more general definition. It is only where the facts fall outside either s.76 or s.75 that you need to consider the more general issue of whether consent is freely given. For this reason we have set the statutory provisions out in reverse order in this section.
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10.6.2 Conclusive presumptions about consent Section 76(2) sets out two circumstances in which V’s apparent consent will conclusively be regarded as invalid, or not freely given with capacity to consent. Both relate to deceiving the victim into consenting in different ways. These are:
the defendant intentionally deceived the complainant as to the nature and purpose of the relevant act, or
the defendant intentionally induced the complainant to consent to the relevant act by impersonating a person known personally to the complainant.
If V is deceived in any one of these ways, not only is her consent deemed to be invalid, but D is also conclusively deemed not to have a reasonable belief that V consented. In other words, provided a relevant act is carried out for the purposes of an offence in ss.1–4, these forms of deceit render the consent element in both the actus reus and mens rea proved beyond reasonable doubt. This is significant and suggests that obtaining consent by deceit renders the offence more serious.
Self-reflection Read Ashworth and Temkin and list their reasons for objecting to these forms of deceit constituting conclusive, rather than evidential, presumptions against the existence of consent. Do you agree?
Nature and purpose Under common law prior to the SOA 2003, the courts had suggested that deceit as to the nature of the sexual act rendered consent invalid. So, in Flattery (1877) 2 QBD 410, for example, where D had told V that he was performing a surgical operation on her but was in fact having sexual intercourse with her, V’s consent was vitiated by the deception as to the nature of the act. Under SOA 2003 s.76(2)(a) there would similarly be a conclusive presumption that consent was invalid. However, s.76(2)(a) goes further and includes deceit as to the purpose of the act. Under previous common law, the courts had begun to develop a presumption against valid consent in relation to what they termed the ‘quality’ of the act. In these circumstances V may be aware of the nature of the act as sexual, but may be deceived as to why D is performing it. Section 76(2)(a) essentially clarifies this presumption by using the term ‘purpose’ rather than ‘quality’. Note that in s.76(2)(a) the word ‘induced’ has not been used. This suggests that as long as a deception as to the nature or purpose of the act has taken place, it does not matter whether or not it was the deception which caused V to consent. The deception itself renders the consent invalid.
Activity 10.11 Read the case of Jheeta [2007] EWCA Crim 1699 and then:
Outline the material (relevant) facts of this case.
Summarise in no more than 100 words the legal issue which the Court of appeal were asked to decide.
Activity 10.12 Two possible interpretations of the word ‘purpose’ were identified in Jheeta: a narrow and a wide interpretation.
Explain in no more than 100 words what the ‘wide’ interpretation of the word ‘purpose’ is.
Explain in no more than 100 words what the ‘narrow’ interpretation of the word ‘purpose’ is.
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Activity 10.13 D asks to have sex with a prostitute and agrees to pay her for the sex. In fact he has no intention of paying her and after sexual intercourse has taken place he leaves without paying. Prepare skeleton arguments to present at D’s trial. Imagine you are, first, counsel for the prosecution and then counsel for the defence. What interpretation of the word ‘purpose’ would you apply? How would you argue that D has (or has not, in the case of the defence) intentionally deceived V as to the nature and/or purpose. The following table may help you with this task: Arguments for the prosecution
Arguments for the defence
Activity 10.14 Now read the following academic commentaries on the Sexual Offences Act 2003:
Wilson, Chapter 12: ‘Sexual offences’, Section 12.8 ‘Consent’.
J Herring ‘Mistaken Sex’ [2005] Crim LR 511 (use the Online Library to find this)
A Ashworth ‘Case comment’ [2008] Crim LR 144 (use the Online Library to find this)
Assess the key argument of each author – are they in favour of a wide or narrow interpretation? What are their reasons for supporting any particular interpretation. Now add these views into your table in activity 10.13 – how would you use these academic commentaries to give weight to the arguments of the prosecution and defence in the case of D? No feedback provided.
Activity 10.15 What is the ratio of the Court of Appeal’s decision in Jheeta? Which interpretation did the CA prefer and why? Do you agree?
Activity 10.16 Assess whether valid consent is present in the following scenarios: a. D promises V that if she agrees to have sexual intercourse with him, then he will marry her. He has no intention of marrying her. V agrees. b. D is HIV positive and has sexual intercourse with V, but does not tell her about his HIV status. c. D derives sexual pleasure from touching women’s hands. She gets a job in a beauty salon which involves performing manicures on clients.
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Deception as to identity Section 76(2)(b) confirms the common law position, affirmed in Elbekkay [1995] Crim LR 163, whereby an attempt to impersonate V’s husband or long-term partner would invalidate consent. Section 76(2)(b) goes slightly further by referring to impersonation of any person known personally to V, which may extend beyond a husband, boyfriend or sexual partner. It is, however, unclear how far this extends and what is meant by ‘known personally’. Also note that the inclusion of the words ‘known personally’ means that if D impersonates a famous person to whom V is attracted in order to obtain her consent to a sexual act, this would not invalidate her consent (unless she was personally acquainted with that celebrity). In s.76(2)(b) there must be a causal link between the deception and the obtaining of consent as the section uses the word ‘induced’. Other aspects of D’s identity that may be the subject of deceit in order to obtain consent do not invalidate consent. So, D’s deceit as to her qualifications as a dentist in Richardson (Diana) [1998] 2 Cr App R 200 would not invalidate consent in relation to sexual or other offences against the person, unless they fell under s.76(2)(a) and constituted deceit as to the nature or purpose of the act.
Activity 10.17 Assess whether valid consent is present in the following scenarios: a. John met Victoria in a pub one night and they got on so well that she agreed to meet him for a drink the following week. Unbeknown to Victoria, John’s twin brother, Jim, in fact goes on the date with Victoria and they have sexual intercourse at the end of the evening. b. David, who bears a striking resemblance to a famous footballer, Shane Mooney, meets Jane at a party. Jane, who has always fancied Shane Mooney, walks up to him and begins to chat. David realises Jane has mistaken him for the footballer but does not inform her of her mistake. Jane, believing that she can sell her story to the newspapers, agrees to have sexual intercourse with David. c. Carol and Fred began emailing each other after finding each other in an internet ‘chat room’. They agree to meet up but Fred sends his friend Burt instead. Carol, thinking that Burt is indeed Fred, agrees to have sex with him.
10.6.3 Evidential presumptions about consent Section 75 SOA 2003 sets out the circumstances which give rise to an evidential presumption that consent is invalid. Evidential presumptions, as opposed to conclusive presumptions, are rebuttable. This means that D can raise, in his defence, evidence that suggests that despite the circumstances, V did in fact consent to the sexual act. As with s.76, if one of these circumstances is present, and D knows that it exists, then not only is it presumed that valid consent does not exist but also it is presumed that D did not reasonably believe that V consented. The relevant circumstances are listed in s.75(2) as follows.
Any person was, at the time of the relevant act or immediately before it began, using violence against the complainant or causing the complainant to fear that immediate violence would be used against him.
Any person was, at the time of the relevant act or immediately before it began, causing the complainant to fear that violence was being used, or that immediate violence would be used against another person.
The complainant was, and the defendant was not, unlawfully detained at the time of the relevant act.
The complainant was asleep or otherwise unconscious at the time of the relevant act.
Because of the complainant’s physical disability, the complainant would not have been able at the time of the relevant act to communicate to the defendant whether the complainant consented.
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Any person had administered to or caused to be taken by the complainant, without the complainant’s consent, a substance which, having regard to when it was administered or taken, was capable of causing or enabling the complainant to be stupefied or overpowered at the time of the relevant act.
Collectively these evidential presumptions are aimed at situations where V was forced to submit to the sexual act through threats of violence towards herself or others or lacked capacity to consent because of a disability, unconsciousness or involuntary intoxication. It is curious that these circumstances give rise to an evidential presumption rather than a conclusive one, because it suggests that these are rather less serious circumstances as this section gives D the opportunity to avail himself of a defence by claiming that consent was indeed freely given. Ashworth and Temkin are critical of this view. It is also difficult to imagine how a defendant might argue that despite V being unconscious through, for example, being secretly administered with a ‘date rape’ soporific drug† , she nevertheless consented to sexual intercourse. Note also that if V is subjected to threats of ‘violence’ this may invalidate her consent but if she is subjected to threats of a different kind, for example of losing her job or of her promiscuity being publicly revealed, an evidential presumption would not exist.
Activity 10.18 Dawn is at a party and is already a little drunk. She starts chatting to Mike who is secretly attracted to her. Mike offers to buy her another drink. She agrees but asks for ‘just an orange juice’. Mike buys her a drink but, unbeknown to Dawn, Mike asks the barman to add a double vodka to the orange juice. Dawn drinks the vodka and orange juice and later she has sexual intercourse with Mike. Dawn remembers nothing of the incident the next morning and accuses Mike of rape. Applying s.75, is Dawn’s consent to sexual intercourse valid? Would your answer differ if she suspected that the drink contained vodka, but she drank it anyway?
10.6.4 General definition of consent Section 74 SOA 2003 gives a general definition of consent: For the purposes of this Act a person consents if he agrees by choice, and has the freedom and capacity to make that choice. This is a very wide definition, but it emphasises freedom and capacity of the victim to choose whether to consent or not. This general definition should be considered only where ss.75 and 76 do not apply (since they already invalidate consent in specific circumstances where V is deemed not to have freely chosen to consent). Note that the relevant time at which you need to assess whether consent is freely given is at the time of the sexual act. If, for example, V agrees to sexual intercourse at a later time, but in the meantime becomes intoxicated or falls asleep, the consent given a the earlier time will not be relevant. You would need to assess whether consent was freely given at the point at which the sexual act began, and whether that consent was withdrawn at any time during the sexual act.
Activity 10.19 Prepare a plan in answer to the following essay question: ‘The courts, in trying to apply s.74 Sexual Offences Act 2003 have singularly failed to produce clear guidance on the meaning of the term ‘freedom’ in relation to consent.’ Discuss in relation to the following cases, which you can find on the Online Library.
Jheeta [2007] EWCA Crim 1699
Bree [2007] EWCA Crim 804
Wright [2007] All ER (D) 267 (Nov)
Doyle [2010] EWCA Crim 119
No feedback provided.
†
The ‘date rape’ drug is generally thought of as the clear-coloured and tasteless Rohypnol (flumitrazepam). But other drugs in the diazepam group can have similar effect.
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Self-assessment questions Assess whether V consents to the sexual acts in the following examples: 1. V has applied for a promotion because she needs the extra money to feed her three young children. D, her boss, tells her that she will be promoted if she agrees to have sexual intercourse with him. 2. V’s fiancé, D, is having an affair. For religious reasons she does not believe in sex before marriage, but agrees to have sex with D so that he will end his affair. 3. V is aged 16 but very naïve. Her boyfriend, D, asks her to have unprotected sex with him, telling her that as long as she has a bath afterwards she cannot get pregnant. V agrees. 4. V has learning difficulties. His carer, D, asks V to have sex with him, telling him that he will spread rumours about his homosexual tendencies if he does not.
Summary Lack of consent to a sexual act is an essential element of all sexual offences. Not only must V consent to the sexual act if D is to avoid criminal liability, but that consent must be valid. The Sexual Offences Act 2003 provides a general definition of consent which suggests that it is more than submission or acquiescence, but should involve V freely choosing to consent with full capacity to make that choice. The Act also sets out circumstances in which consent is presumed not to be valid (that is, not freely given with full capacity). Some of these presumptions are conclusive and cannot be rebutted; others are evidential and so can be rebutted if there is evidence that despite the circumstances V did freely consent.
Self-assessment questions 1. What is the general meaning of consent? 2. What is the difference between an evidential and a conclusive presumption? 3. What circumstances give rise to a conclusive presumption against consent? 4. What circumstances give rise to an evidential presumption against consent?
Useful further reading
Finch, E. and V. Munro (2004) ‘The Sexual Offences Act 2003 (5): Intoxicated consent and drug assisted rape revisited’ Criminal Law Review 789.
Reminder of learning outcomes By this stage you should be able to:
explain what is meant by the term ‘consent’ and identify situations where consent to sexual acts may not be valid.
Sample examination question Jake, an artist, is a member of a cult which has persuaded him that women always want sex and that when they say ‘no’ they really mean ‘yes’. The cult’s mission is to encourage its members to ‘give sexual pleasure to womankind’. Jake decides that to be faithful to the cult he should have sex with his long-term platonic friend, Anna. She has always made it clear that they will never be more than good friends but Jake now believes that she does not mean this. He goes to her bedroom where she is asleep and climbs into bed with her. Anna wakes up but is very sleepy and Jake has sex with her. She only vaguely recalls this incident the next morning.
Criminal law Chapter 10 Sexual offences The following week Jake meets Fiona in the college bar. While they are chatting she tells him that she suffers from migraine headaches. Jake tells her that he is a faith healer with mystical powers and can cure such headaches through the medium of sexual contact. Fiona is doubtful but thinks it is worth a try and they go to her house where they have sex. Jake then goes to the bathroom where he encounters Penny who has just stepped out of the shower. He asks her if she fancies having sex with him. She tells him she thinks he is a menace to women and she would never let him touch her. Jake is incensed and shouts at her ‘I’m going to teach you a lesson’. He then picks up a bar of soap and forcibly penetrates her with it. Penny does not resist as he seems so angry that she fears she might provoke him further. Advise Jake as to his criminal liability, if any.
Advice on answering the question There are three distinct events in this question which you should approach separately. In relation to each, consider which sexual offences may have taken place and always discuss each offence in the following order: actus reus elements – check that all parts of the actus reus are present. If not do not go any further. Then think about the mens rea elements. Then, and only if the actus reus and mens rea elements are complete, you can assess whether D may have a defence. In relation to Anna: Jake has penetrated Anna with his penis: which offences cover this particular act? You may wish to focus on rape as the most serious offence (although because of the overlap between offences this could also be a sexual assault or assault by penetration). The sexual act has taken place, but you need to consider whether Anna actually consented for the purposes of the actus reus. Go through ss.76, 75 and then 74 and see which applies. Anna was sleepy but not asleep so s.75(2)(d) may not apply. Therefore you need to consider whether, according to s.74, Anna chose to consent freely and with capacity. In her sleepy state does she have capacity to consent? If consent is not present you can consider Jake’s state of mind. He intentionally has sexual intercourse. But does he have a reasonable belief that Anna consented? What would Jake’s argument be? He may honestly believe that she consents because of what he has been taught by the cult – that ‘no’ means ‘yes’ and that Anna’s insistence that their relationship is platonic may, in Jake’s view, mean that she consents to sexual intercourse. However, under s.1, Jake’s belief must be reasonable in order for him to escape liability. Remember that the jury, in deciding on this, must have regard to all the circumstances. There is no right or wrong answer – you cannot predict what the jury will decide. However, you must explain exactly what they are being asked to decide, cite the test accurately and then discuss what they may take into account and arguments as to why Jake’s belief may or may not be reasonable. In relation to Fiona: Use the same technique as above. This may again be an offence of rape, but there is a slightly different consent issue. Fiona has been deceived so s.76 may apply. Has she been deceived as to the nature or purpose of the act? This scenario may be similar to Tabassum – does Anna believe that the sexual act is part of a medical procedure? Note that deceit as to Jake’s qualifications as a mystic faith healer is not relevant (Richardson). Fiona may not believe what Jake has told him but read s.76(2)(a) carefully – does this matter? Jake intentionally deceives her – but she does not have to be induced to consent by that deceit (the word ‘induce’ is used in s.76(2)(b) but not in s.76(2)(a)). There may therefore be an evidential presumption against consent. It is then for Jake to argue that despite the deceit, Fiona freely consented. What might his argument be? If consent is not proved then you can consider Jake’s state of mind. What might Jake argue here in relation to whether his belief in consent is reasonable?
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In relation to Penny, again use the same approach as above. Start with the actus reus – what offence has Jake potentially committed? He ‘penetrates’ Penny with a bar of soap. This cannot be rape, as he does not use his penis. As he uses an object, this would have to be an offence under s.2 – assault by penetration. It is not clear whether Jake has penetrated Penny’s anus or vagina, but provided the bar of soap is inserted in one or the other then the relevant act has taken place. However, for s.2 it is essential that you establish that the penetration is ‘sexual’ within the meaning set out in s.78. Apply the two-part objective test. The facts here are similar to the facts of H where, in applying the second part of the test, the jury may take into account the wider circumstances in which the offence took place, including Jake’s earlier sexual proposition towards Penny. The final actus reus element is the issue of whether or not Penny has consented to the sexual act. Section 76 does not apply – there is no deception. Section 75 may apply if Jake’s words are construed as implying a threat of violence. That is certainly the effect that they have on Penny, so s.75(2)(a) could apply to give rise to an evidential presumption against consent. Could Jake rebut this presumption in any way? Section 75(2)(a) would also give rise to an evidential presumption against Jake having a reasonable belief in consent. Again, consider whether Jake could possibly rebut this presumption. As above, any belief that he has that Penny consents, despite his angry words and threat, would have to be considered by the jury to be reasonable in the circumstances, and they could take into account any steps that Jake took to ascertain whether or not Penny consented. Although you are required to apply the current law in the Sexual Offences Act 2003, in answering this question you can refer back to the previous common law where relevant in order to assist you in interpreting the requirements of the Act. Indeed, a good student would be able to use the common law in this way, but also be able to demonstrate the ways in which the law has changed in the 2003 Act and be able to identify the subtle differences between the previous common law and the new statutory provisions.
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Reflect and review Look through the points listed below: Are you ready to move on to the next chapter? Ready to move on = I am satisfied that I have sufficient understanding of the principles outlined in this chapter to enable me to go on to the next chapter. Need to revise first = There are one or two areas I am unsure about and need to revise before I go on to the next chapter. Need to study again = I found many or all of the principles outlined in this chapter very difficult and need to go over them again before I move on. Tick a box for each topic. Ready to move on
Need to revise first
Need to study again
I can explain the inadequacies of the previous law on sexual offences and the impact of the Sexual Offences Act 2003.
I can outline the sexual offence of rape.
I can outline the sexual offence of assault by penetration.
I can outline the sexual offence of sexual assault.
I can outline the sexual offence of causing another to engage in sexual activity.
I can distinguish between these four offences.
I can explain ‘consent’ and identify situations where consent to sexual acts may not be valid.
If you ticked ‘need to revise first’, which sections of the chapter are you going to revise? Must revise
Revision done
10.1 The social context of sexual offences
10.2 The law reform process
10.3 Rape
10.4 Assault by penetration
10.5 The meaning of ‘sexual’
10.6 Consent
Before you continue to the next topic listen again to audio presentation 11 to recap and consolidate what you have learnt.
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11 Defences 1: affirmative defences
Contents Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152 11.1
Duress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153
11.2
Duress of circumstances . . . . . . . . . . . . . . . . . . . . . . . . . 157
11.3
Self-defence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158
11.4
Necessity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162 Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166
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Introduction Some defences are offence specific. Diminished responsibility and loss of self control, for example, are specific in that they can only be pleaded as defences to murder and to no other offence. The defences discussed in this chapter are general defences, in that they may be pleaded as a defence to most criminal offences (although some specifically do not provide a defence to certain crimes). It is important in relation to any defence that you clearly understand how it may afford a full or partial exemption from liability for any type of criminal offence. General defences can be divided into three categories. First, defences such as intoxication, mistake and mental condition defences, if successfully pleaded, essentially result in either the actus reus or the mens rea for the affirmative offence not being proven, in which case there can be no liability. These are called failure of proof defences because they result in the offence not being proven by the prosecution. Secondly, some defences operate outside the boundaries of the offence elements. These we term affirmative defences. They negate liability although all of the elements of the crime can be established. Such defences may either be justifications, that is, they justify conduct which would otherwise be criminal. As the behaviour is justified, there is no wrongdoing upon which criminal liability can attach. Necessity, self defence and related defences are examples of justificatory defences. Or they may be excuses, that is, although what the defendant did was wrong, he nevertheless escapes liability because he was not personally at fault. Duress and duress of circumstances are examples of excuses. In short, justifications negate the wrongfulness of the act; excuses negate the fault of the actor. In a problem question you should always discuss the core actus reus and mens rea elements of an offence before considering whether a defendant cam plead any of these defences. If the constituent parts of the crime of a crime cannot be proved, then there can be no liability, with or without a defence.
Essential reading and listening
Wilson, Chapter 9: ‘Defences (1)’, Sections 9.1–9.5 and Chapter 10: ‘Defences (2): affirmative defences’.
Read these sections of Wilson before you continue with this chapter of the subject guide.
Audio presentation 12.
Learning outcomes By the end of this chapter and the relevant readings, you should be able to:
distinguish between defences which are excusatory or justificatory
determine the relationship between affirmative defences and ‘failure of proof’ defences
outline and discuss the requirements for the defences of duress, self-defence and necessity
identify how certain defences apply to specific crimes and understand why some defences do not have general application.
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11.1 Duress Both of the defences in this section involve duress. Duress involves a form of pressure put upon D which compelled him to act unlawfully. That pressure may come from another person (duress by threat) or from the situation in which D finds himself (duress of circumstances). The pressure, whether from another person or from the circumstances, must involve a serious threat of death or serious injury in order to excuse D’s conduct. So, for example, D may assault V either because X threatens to kill him if he does not, or because V is standing on the edge of a high cliff in strong winds and will fall off unless he pushes V out of the way. The defence requires a very serious threat of death or serious injury because, in effect, the defendant is pleading that he was not acting voluntarily; he had no choice but to act because of the threat or his ‘will was overborne’. He is not physically forced to act, but metaphorically forced to do so because the alternative to acting would be so much worse. However, this defence is not a denial of either actus reus or mens rea, merely a plea that the courts recognise the pressure that D was under and the harm that he or she avoided. It is for this reason that duress is not a defence to either murder (Howe [1987]) or attempted murder (Gotts [1992]). Imagine that D is threatened by X: ‘If you do not kill V, I will kill you.’ In this situation there is threat of death, but D is asked in that situation to choose between ending the life of another, or being killed himself. This may indeed be a traumatic dilemma for D but the courts have very strictly stated that they expect the highest degree of heroism and self-sacrifice in this situation: I have known in my lifetime of too many acts of heroism by ordinary human beings of no more than ordinary fortitude to regard a law as either just or humane which draws the protection of the criminal law from the innocent victim and casts the cloak of its protection on the coward and the poltroon in the name of a ‘concession to human frailty’ (Lord Hailsham in Howe [1987] 1 All ER 771).
This means that D must choose in this situation to sacrifice his own life in order to save the life of V.
Activity 11.1 Read Law Commission Report No. 304 (2006) ‘Murder, Manslaughter and Infanticide’ and apply their proposed new law on duress in relation to murder to the following scenario: A taxi driver has his vehicle commandeered by a gunman who holds a gun to the driver’s head and tells him to drive to a place where the gunman says he may shoot someone. The taxi driver does as the gunman demands and the gunman goes on to shoot and kill someone. Do you agree with the outcome of applying this new law? What other possible outcomes did the Law Commission discuss and reject?
Activity 11.2 Read Wilson, Chapter 9: Sections 9.1–9.5 and answer the following questions:
Do all defences share the same rationale?
Why does the criminal law excuse certain individuals who have committed an offence?
What are the different rationales for justificatory defences? Would it be preferable for there to be just one rationale? If so what should it be?
No feedback for this activity.
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11.1.1 Threats As stated above, the rationale behind the defence of duress is that D was under such severe pressure to commit an offence that he cannot be blamed for his actions. Therefore a successful plea of this defence requires proof of a very serious threat of death or serious injury (that is, grievous bodily harm) to D or another. This is so regardless of which offence D has committed. It is not therefore a question of proportionality, as in ‘was D threatened with something more serious that the act he carried out?’ Rather, was his will overborne by an extremely serious threat? Threats against property or threats of less serious harm will not suffice. However, the Court of Appeal has now affirmed that a threat of rape could constitute a threat of sufficient gravity to ground the defence. See A [2012] EWCA Crim 434.
Activity 11.3 Paul had been married to Nancy but they were now separated. They both had joint custody of their child, Carol. After a weekend visit, Paul refused to hand Carol back to Nancy. Nancy kicked down Paul’s front door in order to get Carol back. Could Nancy plead duress as a defence to a charge of criminal damage?
Activity 11.4 Juliet suffered from severe arthritis and was in constant pain. On the advice of her friends she regularly smoked cannabis as this provided more effective relief from pain than her prescribed drugs. Could Juliet plead duress as a defence to a charge of possessing a controlled drug?
Threat to D or another The threat need not be directed at D himself. Indeed in Pommell [1995] 2 Cr App R 607, D was charged with unlawfully possessing a firearm without a licence, but he claimed he had taken the gun from someone who was threatening to shoot at some other people. In this case D himself was not under threat, but others were and D may not even have known who those other people were. Nevertheless D believed that others were in danger of being seriously injured or killed by the person in possession of the gun. See also Conway [1988] and Martin [1989]. While the threat may relate to D or another, the threat must not come from D himself. This unusual situation arose in Rodger and Rose [1998] 1 Cr App R 143. The defendants had escaped from prison and were charged with the relevant offence. However they claimed that they had been forced to do so because conditions in prison were so bad that they both suffered from depression and that, had they stayed, they would have committed suicide. They were therefore claiming that they were both under threat of death, but from themselves rather than another. This claim was rejected by the courts.
Threat must be operative Not only must a serious threat exist, but it must be that threat which compelled D to act. This means, first, that D must believe that the threat will be carried out if he does not commit the crime. Secondly, it must be the threat itself, and not some other reason, which causes D to commit the crime. In Valderrama-Vega [1985] Crim LR 220, for example, D was under three threats: an implied threat of death or serious injury to himself or his family from a Mafia-type organisation, severe financial pressure, and an express threat that his homosexual tendencies would be publicly revealed. He may have committed the offence of smuggling cocaine for all three of these reasons but the Court of Appeal ruled that provided it could be established that D acted at least in part because of the implied threat of death or serious injury then it did not matter that there were other reasons for D committing the act (such as to obtain money to ease his financial problems).
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D must not put himself in a position where he is likely to be threatened A number of cases have established that D may not claim the defence of duress where he has voluntarily placed himself in a position where he is open to threats. So if D joins a gang of violent armed robbers, he cannot claim in his defence to robbery that the gang had threatened him with violence since he might have anticipated these threats when he joined the gang (see Sharp [1987] and Shepherd [1988]). The Court of Appeal took this exclusion further in Heath [2000] Crim LR 109. D, a heroin addict, owed his drug supplier £1,500. The drug dealer had threatened D with serious violence if he did not pay but offered to discharge a large part of this debt if D agreed to transport some drugs for him. He was unable to rely on the defence of duress on a charge of possessing a controlled drug because the Court of Appeal held that by becoming indebted to a drug dealer he had voluntarily exposed himself to the risk of unlawful violence.
Mistake as to threats In cases where there is, in fact, no threat, but D believes that there is, his mistaken belief in the existence of a threat may suffice provided his mistake is reasonable (Graham [1982]). An honest belief in itself will not suffice and the mistake in this context must be objectively reasonable. This requirement is inconsistent with the way in which mistakes as to surrounding circumstances are dealt with in relation to other defences such as self-defence and provocation. This inconsistency was criticised in Safi [2003] Crim LR 721, the Court of Appeal there approved Graham as the authority for this point and so the law has not changed.
Activity 11.5 Read the case of Graham [1982] 1 All ER 801 and answer the following questions: a. What were the material facts of this case? b. What threat did D believe he was acting under? c. In what way might his perception have been unreasonable?
11.1.2 Threat of imminent harm In order for D to claim that he acted because of a threat of death or serious injury, it must also be established that the threat would be carried out imminently†. If D has an opportunity to escape from the threat, without committing the crime, then he cannot rely on this defence. The courts have had to consider how imminent a threat needs to be and have suggested that two aspects must be satisfied: (i) that there is no avenue of escape and (ii) that the carrying out of the threat, if not immediate, must be imminent enough to be operative on the mind of D at the time of committing the crime. The first aspect requires that the jury examine whether D had the opportunity to seek help (for example from the police) or otherwise avoid the threat being carried out. This was viewed rather more generously in Hudson and Taylor [1971] 2 All ER 244 than in Heath [2000] and Hasan [2005] UKHL 22. In all three of these cases, the defendants who were subject to threats could have sought protection from the police. Indeed, in Hudson the defendants were under the security of a courtroom at the time they committed the offence of perjury. In that case, however, the Court of Appeal held that the threats were ‘no less compelling’ because they could not be carried out immediately as they could have been carried out later that night and they were certainly operative on D’s decision to commit perjury. In both Heath and Hasan, however, the defendants were drug addicts in debt to their dealers and the courts took the view that rather than concede to the dealers’ demands in order to avoid the threat, they both could have sought police protection.
†
Check that you are sure of the meaning of ‘imminent’.
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Activity 11.6 David and Mark, both aged 15, are on a school trip accompanied by their teachers. Mark, a known school bully, tells David: ‘If you don’t get hold of Stuart’s new mobile phone for me, I’ll have you.’† David pushes Stuart to make him drop the mobile phone, which David picks up. He is caught and is now charged with robbery. As his defence counsel, which case would you use to help you to argue that the threat against David was imminent? How would you distinguish other cases?
†
‘I’ll have you’ = a threat of physical violence.
The second way of determining the imminence of the threat relates to whether the threat is actually operative on D, even if it is unlikely to be carried out immediately. Guidance on this issue has been given in Abdul-Hussein [1999] Crim LR 570.
Activity 11.7 Read Abdul-Hussein and answer the following questions: a. What were the material facts in this case? b. Under what threat did D believe himself to be? c. When was that threat likely to be carried out? d. Did the Court of Appeal consider this threat to be ‘imminent’? What reasons did they give for this decision?
11.1.3 Reasonable response to threat Once it has been established that either a sufficiently serious threat existed, or that D reasonably believed that such a threat existed, the second part of the test for duress is to consider whether a sober person of reasonable firmness, sharing D’s characteristics, would have responded to the threat in the way that D did (Graham [1982]). In this sense duress is rather like provocation, in that the jury must decide objectively whether the ordinary reasonable person would have acted in a similar way. In addition, again similarly to provocation, the courts have had to consider which of D’s relevant characteristics the ordinary reasonable person may share. On the one hand, the law must set out standards of behaviour which can reasonably be expected of a defendant and if he falls short of those he should not be afforded a defence. On the other hand, the defence is a concession to human frailty and there needs to be some acknowledgment that some people react more firmly in response to a threat than others. The question to be asked, therefore, is whether the threat would have overcome the will of a person with the ability to resist threats which can reasonably be expected of an ordinary person who may share some of the relevant characteristics of the defendant. Which characteristics may be relevant? Presumably not all of D’s characteristics, as that would make the test wholly subjective. The Court of Appeal gave guidance on this issue in Bowen [1996] 2 Cr App R 157. D had an IQ† of 68 (which is amongst the lowest 2 per cent of the population) and was ‘unusually suggestible’. He and his family had been threatened with serious violence if he did not take part in a criminal deception. D was charged with obtaining services by deception and pleaded duress, but argued that the jury should be allowed to endow the ordinary person of reasonable firmness with his low IQ. The Court of Appeal reviewed the cases on the objective test in provocation and then set out guidelines on which characteristics may be relevant to this test. These must be:
characteristics which affect D’s level of firmness in the face of threats (such as age, sex or a recognised mental illness or psychiatric condition)
characteristics which affect D’s capacity to escape from a threat (such as age or a physical disability)
characteristics which may affect the gravity of a threat (e.g. pregnancy, where a mother may fear for her unborn child as well as herself)
characteristics which are not self-induced (so that alcoholism or a drug addiction could not be relevant).
†
IQ = Intelligence Quotient, calculated through mental ability tests which assess a person’s intelligence or mental ability in relation to their age. Once the tests have revealed a mental age for the candidate, this mental age is divided by their chronological age and multiplied by 100 to give an IQ score. A ‘normal’ IQ would therefore be around 100, where the mental age and chronological age are the same.
Criminal law Chapter 11 Defences 1: affirmative defences In this case, neither a low IQ nor the characteristic of being unusually suggestible were relevant characteristics since, not being recognised mental illnesses, they did not, in law, affect D’s level of firmness, ability to escape from the threat or D’s perception of the gravity of the threat.
Activity 11.8 According to the guidelines set out in Bowen which of the following characteristics are likely to be relevant to the defence of duress: a. Learned helplessness developed as result of long-term abuse at the hands of a violent partner. b. Shyness and timidity as a result of sexual abuse as a child. c. Paranoia developed as a result of long term use of cannabis.
11.2 Duress of circumstances It will be seen from some of the cases discussed above that the threat of death or serious injury sometimes exists in the circumstances in which D finds himself, rather than being issued by another person. Traditionally the common law on duress developed only in relation to the latter, dangerous circumstances being more relevant to the defence of necessity. Indeed, to say that D was threatened by circumstances is in many ways the same as saying that the circumstances rendered it necessary for him to act. As we saw above, however, there is no general common law defence of necessity. However, the defence of duress by circumstances appears to have been created almost accidentally by the courts, initially in Willer (1986) 83 Cr App R 225, and was then developed in subsequent cases. In Willer D argued that he was compelled to commit a road traffic offence because in the circumstances (he was being threatened by some youths) it was necessary to do so. The trial judge had ruled that the defence of necessity was not available to D and convicted him. On appeal the Court of Appeal held that while it was true to say that the defence of necessity was not available, the defence of duress of circumstances should have been left to the jury. The defence was then developed in a series of road traffic cases (see for example Conway [1988] and Harris [1994]) until the Court of Appeal in Pommell [1995] confirmed that the defence did exist and could apply to all offences except murder and attempted murder. However, being a ‘branch’ of duress, all the requirements of duress (as set out above) must be satisfied.
Is there a general defence of necessity? You may well ask now whether this development of the law has indirectly created a general defence of necessity, as necessity and duress of circumstances appear to amount to the same thing. However there are some fundamental differences which suggest that this is not the case.
As a type of duress the defence of duress of circumstances is not available where D is charged with murder or attempted murder, whereas Re A suggests that the defence of necessity, as far as it exists at all, is available to a charge of murder.
Duress of circumstances requires an imminent threat of death or serious injury, whereas necessity does not – it merely requires some ‘unavoidable evil’ which must be balanced against the evil committed (see for example Cichon v DPP [1994] Crim LR 918).
Duress of circumstances as a defence may excuse D’s conduct whereas the defence of necessity justifies D’s conduct – as discussed above.
Duress of circumstances may arise as a defence even where no threat exists but D mistakenly (and reasonably) believes that a threat exists. A defence of necessity will fail unless there actually is an ‘unavoidable evil’ compelling D to act.
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Therefore, you should be clear in your understanding that whilst there remains no general defence of necessity in English law, it is possible to plead duress of circumstances (as opposed to threats) provided all the usual requirements of the defence of duress are proven. The two defences are not the same and necessity can only be used in very specific and unusual circumstances.
Summary Excusatory defences are available to a defendant who is compelled to act under pressure of threats from another or from the circumstances in which he finds himself. These defences excuse conduct which is legally wrong, but not blameworthy because of those threats. These defences differ from justificatory defences, which render lawful conduct which would otherwise be unlawful. The defence of duress has been developed in the case law as an excusatory defence, but as it is considered to be a ‘concession to human frailty’ there are restrictions on its applicability. It is not available as a defence to a charge of murder or attempted murder. Further it is only available where there is an imminent threat (or reasonably perceived imminent threat) of serious injury or death to D or another. These threats may be issued by another person, or more recently have been accepted where they arise out of circumstances.
Self-assessment questions 1. What is the difference between a justificatory and an excusatory defence? 2. What type of threat must be faced by a defendant who wishes to plead the defence of duress? 3. What characteristics of the defendant may be taken into account by the jury in assessing whether D’s response to a threat was ‘reasonable’? 4. In what circumstances is it possible to plead a defence of necessity to a criminal charge?
Useful further reading
Law Commission (2005) A New Homicide Act for England and Wales, Consultation Paper No. 177 (London, Law Commission), available from the Law Commission website: www.lawcom.gov.uk
Reminder of learning outcomes By this stage you should be able to:
distinguish between defences which are excusatory or justificatory
outline and discuss the requirements for the defences of duress by threats and duress by circumstances
11.3 Self-defence Sources of the law on self-defence There are no fewer than four sources of law on self-defence – in both common law and statutory law. The tests for the defence (that is, what has to be proved to successfully plead the defence) are broadly similar across all four sources of law – but first you should be aware of what the sources of the law are.
Section 3 Criminal Law Act 1967: This statutory form of the defence permits any person to use reasonable force in the prevention of crime or in making a lawful arrest of someone suspected of committing a crime. As the defence is concerned with the prevention of crime and with lawful arrest, many call this ‘public defence’.
Common law: The Court of Appeal in Owino [1996] 2 Cr App R 128 laid down a twostage test to be proved before the self-defence could be successfully used as a defence. The defendant must honestly believe that force is necessary to defend himself, another or property and he must use reasonable force. This test was confirmed by Lord Morris in the Privy Council case R v Palmer [1971] 1 All ER 1077.
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Section 76 Criminal Justice and Immigration Act 2008: This (rather complex) section attempts to clarify the requirements of ‘reasonable force’ in the selfdefence, and essentially codifies Lord Morris’s dicta in Palmer. Section 3 Criminal Law Act 1967 remains the statutory authority for the defence and Owino remains the common law authority, but s.76 Criminal Justice and Immigration Act 2008 adds some further detail on that second requirement for the defence.
Section 5 Criminal Damage Act 1971: This section provides a defence, similar to the general common law offence, but which only applies to the offence of criminal damage. More specifically, a defendant may claim a ‘lawful excuse’ to the commission of criminal damage where under s.5(2)(b) the defendant honestly believed the reasonable damage was necessary to protect property.
There is clearly considerable overlap between these sources of the defence and you may well be confused about where to use which defence. In any given scenario if any of the above sources of law apply, the general rule is that you should use statutory authorities in favour of common law authorities as Acts of Parliament supersede common law. So, you should ideally use both s.3 Criminal Law Act 1967 and s.76 Criminal Justice and Immigration Act 2008 (or s.5 Criminal Damage Act 1971 if the relevant offence is criminal damage).
Activity 11.9 Imagine you have the following scenarios in a problem question in the exam. Which source of the defence of self-defence would you choose to apply in each scenario? a. Derek sees Fred pointing a gun at Vera with his finger on the trigger. Dave rushes over and knocks Fred to the ground causing Fred to drop the gun. b. Derek sees Fred pointing a gun at Vera with his finger on the trigger. Dave rushes over and knocks Fred to the ground causing Fred to drop the gun. Fred is 8 years old. c. Derek sees Fred pointing a gun at Vera’s car with his finger on the trigger. Dave rushes over to Fred, seizes the gun from his hand and throws the gun in a nearby canal. Under both the common law and under the Criminal Law Act 1967, s.3, a defendant’s conduct may be justified if he used force against another person, or against property, to protect himself or another or to effect a lawful arrest or prevent a crime. This defence may be generally known as self-defence, although some texts refer to acts in the defence of self or another as private defence and force used to effect an arrest or prevent crime as public defence. Whatever terms are used the requirements are the same. The common law allows D to use as much force as is reasonable in the circumstances in response to a threat from V. Section 3 of the Criminal Law Act 1967 further states: A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offences or of persons unlawfully at large.
Section 76 Criminal Justice and Immigration Act 2008 confirms this test but adds that: (6)The degree of force used by D is not to be regarded as having been reasonable in the circumstances as D believed them to be if it was disproportionate in those circumstances. (7) In deciding [whether the forced used was reasonable in the circumstances] the following considerations are to be taken into account (so far as relevant in the circumstances of the case)— (a) that a person acting for a legitimate purpose may not be able to weigh to a nicety the exact measure of any necessary action; and (b) that evidence of a person’s having only done what the person honestly and instinctively thought was necessary for a legitimate purpose constitutes strong evidence that only reasonable action was taken by that person for that purpose.
In this section we will consider the requirements of both the common law defence and the statutory defence.
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11.3.1 Force used must be necessary There must be a real or perceived threat from V towards D or another. However, the necessity for force must be judged from D’s perspective and this part of the defence is subjective. This was established in Williams (Gladstone) [1984]. It is only if the mistake was induced by intoxication that it must be reasonable (O’Grady [1987]). See on this, Chapter 12, Section 12.5.1 This issue should not be confused with whether the defendant mistakenly believed that the level of force which he used was necessary. A mistaken belief about the level of force must be reasonable (see below). The requirement of an honest belief in the need for force has been criticised on human rights grounds, in relation to self-defence as a defence to murder. Article 2 of the European Convention on Human Rights (enshrined in English law under the Human Rights Act 1998) guarantees a right to life and: (2) Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary (a) in defence of any person from unlawful violence (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained (c) in action lawfully taken for the purpose of quelling a riot.
This requires that life can only be regarded as lawfully taken where it is absolutely necessary. Under English law, however, a killing may be regarded as unlawful where it was in fact unnecessary but honestly believed by D to be necessary. It was argued in McCann v UK [1996] that, at the very least, the necessity of force should be viewed objectively and should be reasonable in order to comply with Article 2. However, the test remains subjective. Of course, if D’s belief was extremely unreasonable the jury may choose not to believe that it was honestly held. Furthermore, if the mistake was so unreasonable that it amounted to gross negligence, then D may alternatively be found guilty of gross negligence manslaughter (see Chapter 8). Provided D honestly believes that there was a need to use force, there is no duty on him to escape from the threat otherwise than by use of force provided it was reasonable to use force rather than peaceably escape (Bird [1985] 1 WLR 816). For example, if D is in his car and V threatens him from outside, while D may honestly believe he is under threat, the jury may consider it unreasonable for him to get out of his car to use force on V when he could lock the car or drive off. Similarly, the common law will allow D to use a pre-emptive strike, that is, to use force against V before V has actually used force against another provided it is necessary (so force must be at least threatened) and the pre-emptive strike is considered reasonable (see Beckford [1988] AC 130). Where D deliberately provoked the force or threat of force used against him he cannot rely on self-defence (Browne [1972]). It would be too easy for D, who intended to kill V, to provoke V in order to justify his killing. However, D’s actions may unintentionally provoke a violent reaction in V in which case he may still rely on self-defence (Balogun [1999]). In both common law and under s.3 of the Criminal Law Act 1967, D may be entitled to use reasonable force to protect himself or another from personal force or to prevent crime. Can he use force to protect property? In certain circumstances the force used may even be directed against an innocent party, as where a police officer bundles a passerby out of the way in order to protect V against an unlawful attack or otherwise to prevent a crime. See on this R v Hichens [2011] EWCA Crim 1626 CA. In theory the correct defence is one of necessity, as self defence is traditionally limited in its scope to using force against a wrongdoer.
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Activity 11.10 On what authority may D claim he was acting in ‘self’-defence in the following situations: a. D finds V climbing through an open window in his house. Believing him to be a burglar, D grabs V, pulls him out of the window and wrestles him to the ground where he places V in an arm lock. b. On arriving home from work D notices that his neighbour’s car is rolling of its own accord down his neighbour’s drive because the handbrake is not engaged. D smashes the window of the car in order to open the door and engage the handbrake. D may be entitled to use force to protect property provided the force used is reasonable. In this respect the case of Martin is often popularly misunderstood. Martin was convicted for the murder of a person who was burgling his house having unsuccessfully pleaded self-defence (that is, defence of his property). The Court of Appeal did not rule that a defendant cannot defend his property using force per se, but rather they held in this case that the force used was not reasonable as he killed V in defence of property.
11.3.2 Force used must be reasonable Whatever D is protecting himself, another or property from, his use of force must be reasonable and not excessive. This must be established objectively according to the standards of the ordinary reasonable person. This has been conclusively established in Owino [1995] Crim LR 743. In some situations this may be a question of proportionality, so that killing V in order to prevent V from killing another may be reasonable, but killing V in order to prevent him from assaulting another or damaging property may not. Whether the force was proportionate or not may not always be a helpful test, however. How much force will be reasonable, for example, in preventing damage to a priceless work of art or a house (see Faraj [2008] EWCA Crim 1033)? Or to prevent a rape? This must always be judged by the jury taking into account all the circumstances. In performing this task, can the jury take into account the characteristics of the defendant that may be relevant in assessing what he believed to be reasonable?
Activity 11.11 D suffered from depression and paranoia. D, who lived in an isolated farmhouse, had been burgled on three previous occasions. One night when V entered D’s house as a burglar D shot and killed him. V was not armed and had not previously attempted to burgle D’s house. Would D be able to plead self-defence on a charge of murder? Would D be able to plead the new defence of loss of control (see Chapter 7)? Note that as self-defence is a justificatory defence, a defendant who successfully pleads it will be acquitted. A defendant who does not successfully plead it will not. There is no ‘in-between’ position. This defence cannot be used to reduce a charge, for example from murder to manslaughter, where it is only partially successfully pleaded. So in Clegg [1995] 1 All ER 334, where it was found that the use of force was neither necessary nor reasonable, D was convicted of murder and an alternative charge of manslaughter was rejected. So self-defence cannot be used as a partial defence in the same way as provocation or diminished responsibility in relation to a murder charge. However, D may be able to plead the defence of loss of control. Under the new law in ss.54 and 55 Coroners and Justice Act 2009, fear of serious violence is a qualifying trigger for the new special defence to murder. This would not be a complete defence but it would, if successfully pleaded, reduce the conviction from murder to voluntary manslaughter. Refer back to your reading on chapter 7.
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11.4 Necessity Where D commits a crime and claims that it was necessary to do so in order to prevent some greater harm from occurring, he is often said to be choosing the ‘the lesser of two evils’. D may therefore claim that it was necessary for him to commit a crime. However, this would be too easy a route out of criminal liability unless the courts could determine to whom it appeared necessary (do they share D’s views?) or how necessary it was in the circumstances. The courts have traditionally been very reluctant to allow this defence. As it is a justificatory defence, through which the courts would effectively condone criminal behaviour, in some cases the defence has been denied to a defendant, even where he faces a very high degree of immediate danger. In the civil case London Borough of Southwark v Williams [1971] 2 All ER 175 the respondents pleaded a defence of necessity to the civil wrong of trespass as they had ‘squatted’ (or illegally occupied a property) to avoid homelessness. Lord Denning summed up the difficulties with affording this justificatory defence. If hunger were once allowed to be an excuse for stealing, it would open a door through which all kinds of lawlessness and disorder would pass… If homelessness were once admitted as a defence to trespass no one’s house could be safe. Necessity would open a door which no man could shut (p.179).
The defence has certainly been denied to a defendant who kills out of necessity and is subsequently charged with murder. In one of criminal law’s most famous cases, Dudley and Stevens [1884], four men were marooned at sea after their ship was wrecked. They had survived in an open boat for some time without food or water. Three of them decided to kill and eat the cabin boy, which enabled them to survive until they were rescued. They were convicted of murder and their plea that they had killed one, weak member of the crew, in order to allow three other members to survive out of necessity, was rejected by the courts. There has been some dispute as to whether this case established a general rule that there is no common law defence of necessity. It became necessary for the Court of Appeal to consider the ratio of this case in the more recent case of Re A (conjoined twins) [2001] 2 WLR 480.
Activity 11.12 Read the case of Re A† and answer the following questions: a. What were the material facts of this case? b. What potential charges were the doctors in this case facing? c. Why did they ask whether the defence of necessity would be available to them? d. In what way did this pose a moral dilemma for the court? e. In what circumstances did Brooke LJ say that the defence may be available at common law? f.
If you apply that reasoning to the facts of Dudley and Stevens would you convict or acquit those defendants?
g. Is this satisfactory? The decision in Re A has left us in a position where there is certainly no general defence of necessity in criminal law. However, there may be a defence in very exceptional circumstances where the criteria set out by Brooke LJ exist. Brooke’s dicta suggests that the defence is to operate on a case by case basis and Re A should not be considered to provide any general precedent on this defence. The defence of necessity has also been applied in another medical case, Re F (mental patient: sterilisation) [1990] 2 AC 1, where doctors asked for a declaration as to whether an operation to sterilise a patient who was unable to consent (due to her learning disabilities) would be lawful. The House of Lords held that where it was in the patient’s best interests and the patient genuinely could not consent to the operation, it would be lawful as the defence of necessity would apply.
†
You can find this case through the Online Library. Its full name is Re A (children) (conjoined twins: surgical separation) [2001] 2 WLR 480.
Criminal law Chapter 11 Defences 1: affirmative defences It therefore appears that the defence of necessity may be available in common law where:
it is in the patient’s best interests
D has a statutory duty to act (for example as a police officer – see Johnson v Phillips [1975]
in exceptional cases such as Re A where it is necessary and proportionate to avoid an ‘inevitable evil’.
It is noticeable that in each case where the defence has been allowed it seems to afford a defence to a professional in the course of carrying out their professional duties (e.g. a police officer or a doctor) and often in medical cases where D is in a position to ask the court’s permission first. This enables the defence to be used in exceptional circumstances which can be carefully monitored by courts and avoids Lord Denning’s fears of opening the ‘floodgates’.
Summary In this section we have outlined the justificatory defences of self-defence and necessity. If successfully pleaded these defences justify the conduct committed by D and therefore result in acquittal. By justifying D’s conduct, both of these defences essentially state that D may lawfully use force, damage property or even cause the death of another where it is necessary to avoid a greater evil. In relation to selfdefence, D may act to protect himself, another or property in order to prevent a crime or to prevent V causing harm. Provided D honestly believes there is a threat of harm, he may reasonably respond using force but his actions will be judged according to the standards of the ordinary reasonable person. Necessity similarly involves preventing a greater harm occurring though not necessarily from a threat or attack by V, but rather because the circumstances in which D acts involve some sort of life-threatening situation. This defence has been very narrowly applied and the courts are extremely reluctant to acknowledge its general applicability to criminal offences.
Self-assessment questions 1. For what purposes, under common law, can reasonable force be lawfully used in self-defence? 2. What factors does the jury take into account in assessing whether the degree of force used was reasonable? 3. Geoff seized a man who he thought was escaping from a shop with stolen goods. In fact the man had lawfully purchased the goods. Geoff is charged with assault occasioning actual bodily harm. Is Geoff’s mistaken belief that he was preventing a crime a defence? 4. In Re A what criteria were set out for allowing the defence of necessity? 5. In your opinion is Re A a case of duress of circumstances, self defence, or necessity? Give reasons for your answer.
Useful further reading
Leverick, F. ‘Is English self-defence law incompatible with Article 2 of the ECHR?’ [2002] Crim LR 347.
Glazebrook, P. ‘The necessity plea in English criminal law’ (1972) 31 Cambridge Law Journal 87.
Wilson, W. Central Issues in Criminal Theory. (London: Hart, 2002) Chapters 10 and11.
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Reminder of learning outcomes By the end of this section you should be able to:
distinguish between defences which are excusatory or justificatory
outline and discuss the requirements for the defences of self-defence, duress and necessity
identify how these defences apply to specific crimes.
Sample examination questions Question 1 Shirley leaves a party in a state of extreme intoxication, having consumed a large quantity of alcohol. On her way out she helps herself to a wallet that is sticking out of the coat pocket of another guest. On the doorstep she meets Doris, and thinking that Doris is being rude about her dress, pushes her into the rose bushes. Doris is badly scratched. Advise Shirley of her possible criminal liability. Would your advice differ if Shirley thought that Doris was a grizzly bear about to attack her? Question 2 ‘The law on intoxication is as befuddled as those who seek to rely on it.’ Discuss.
Advice on answering the questions Question 1 First, in this question you must assess whether Shirley has prima facie liability for an offence. This means assessing whether the actus reus and mens rea elements of an appropriate charge can be satisfied. Only then can you think about whether she can plead a defence. We will assume that she can be charged with both theft and assault occasioning actual bodily harm (s.47 of the Offences Against the Person Act (OAPA)) – although you should not assume this in an exam! In an exam you would be required to go through the actus reus and mens rea elements of both of these offences to assess carefully whether she could, in fact, be charged with these offences. We must then consider what defences, if any, may negate her liability. We are told that she is ‘extremely intoxicated’. You then need to ask whether she is intoxicated enough to plead the defence of intoxication. Consider the relevant cases and assess whether she passes this threshold. Assuming that she does, then apply Majewksi, which requires that you decide whether she has committed a basic or specific intent offence. Theft is a specific intent offence so she would have a defence to that if she is drunk enough to show that she lacked mens rea. However, she is less likely to have a defence to the s.47 charge as this is a basic intent offence (as it can be committed recklessly). Under Majewski Shirley cannot claim that she lacks mens rea for the s.47 offence as she will be deemed to have formed the mens rea when she became drunk. She may alternatively try to plead self-defence in relation to the assault. Does she perceive that the use of force is immediately necessary? There are two issues here: first she mistakenly believes that Doris is being rude about her dress. This would cause her defence of self-defence to fail since this is not evidence that she perceives (reasonably or not) that she needs to use force to defend herself or another. Second, her mistake in believing that Doris is a grizzly bear may cause her to believe that the use of force is immediately necessary. However, her mistake is induced by her intoxication, so according to O’Grady her mistaken belief would have to be reasonable. This is a question for the jury, but are they likely to think this reasonable in those circumstances? If (strangely!) they do, then the degree of force that she uses to repel the perceived attack must be reasonable and not excessive. This again is a question for the jury.
Criminal law Chapter 11 Defences 1: affirmative defences Question 2 This question is asking about the ways in which the law on intoxication might be considered to be ‘befuddled’ or confused. This calls for a critical appraisal of the decision in Majewski, discussing ways in which the legal principles set out there may lack reason or consistency. You should draw on the critique of this decision that you will have found in the reading (for example in Wilson). The distinction between basic and specific intent crimes has been subject to criticism in that the distinction is rather artificial and confusing. Further, the way in which mens rea is constructed in relation to a basic defence crime has also been criticised as it breaches the principle of contemporaneity. Use examples to illustrate your answer. You may wish to discuss the approach taken in Caldwell as an alternative – was this any clearer or more rational? This is fine, but make sure you specify that Caldwell has been overruled by R v G. (See Chapter 18.) Finally you should look at involuntary intoxication and the decision in Kingston and critically appraise the approach in that case. Candidates often forget about involuntary intoxication but if the question does not specify voluntary intoxication you should discuss both types.
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Reflect and review Look through the points listed below: Are you ready to move on to the next chapter? Ready to move on = I am satisfied that I have sufficient understanding of the principles outlined in this chapter to enable me to go on to the next chapter. Need to revise first = There are one or two areas I am unsure about and need to revise before I go on to the next chapter. Need to study again = I found many or all of the principles outlined in this chapter very difficult and need to go over them again before I move on. Tick a box for each topic. Ready to move on
Need to revise first
Need to study again
I can distinguish between defences which are excusatory or justificatory.
I can determine the relationship between affirmative defences and ‘failure of proof’ defences.
I can outline and discuss the requirements for the defences of duress, duress of circumstances, selfdefence and necessity.
I can identify BOTH the similarities and the differences between the defences of duress, duress of circumstances, self defence and necessity
If you ticked ‘need to revise first’, which sections of the chapter are you going to revise? Must revise
Revision done
11.1
Duress
11.2
Duress of circumstances
11.3
Self-defence
11.4
Necessity
Before you continue to the next topic listen again to audio presentation 12 to recap and consolidate what you have learnt.
12 Defences 2: involuntary behaviour, mental disorder and other failure of proof defences
Contents Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168 12.1
Involuntary behaviour: general . . . . . . . . . . . . . . . . . . . . . 169
12.2
Sane automatism . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170
12.3
Limits to the defence of automatism . . . . . . . . . . . . . . . . . . . 171
12.4
Insanity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173
12.5
Other ‘failure of proof’ defences . . . . . . . . . . . . . . . . . . . . . 180 Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187
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Introduction As we saw in Chapter 11, some defences justify conduct which would otherwise be criminal, resulting in no criminal liability. Some other defences excuse rather than justify criminal conduct. There is a fundamental difference. With these defences, the outcome may be the same as with a justificatory defence – that is, D is acquitted – but for different reasons. D’s conduct in relation to these defences is considered wrong, or unlawful, but excusable because of the circumstances in which it was committed. In other words the court is not saying that the conduct was lawful, as in the case of self-defence for example, rather that is unlawful but understandable and therefore it would be inappropriate to punish D for it. For this reason, the defence of duress has been described by Lord Hailsham in Howe [1987] as ‘a concession to human frailty’. Some defences negate blame in a different way, by negating one or more elements of the offence. These are termed failure of proof defences. Involuntary behaviour, automatism, insanity, mistake and intoxication are examples of such defences. When successfully raised they operate to negate the mens rea and/or actus reus of the offence.
Essential reading and listening
Wilson, Chapter 9: ‘Defences (1)’.
Audio presentation 13.
Learning outcomes By the end of this chapter and the relevant readings, you should be able to:
distinguish between affirmative and failure of proof defences
outline and discuss the requirements for the defences of insanity and automatism, mistake and intoxication.
Criminal law Chapter 12 Defences 2: involuntary behaviour
12.1 Involuntary behaviour: general Prime examples of failure of proof defences are the defences of automatism or insanity. Both involve the claim that the defendant’s conduct was involuntary and therefore not appropriately the subject of a criminal prosecution. If the defendant’s behaviour was involuntary the prosecution will be unable to discharge the burden of proof in relation to one of the constituent elements of the offence, namely the actus reus. As has been seen, actus reus consists of either an act or an omission in breach of duty. Although bodily movement is necessary for there to be an act, it is not sufficient. Thus twitches, spasms and other involuntary movements are not acts and so cannot form the basis of a criminal prosecution. It makes no difference whether the offence is one which requires mens rea or is a strict liability offence as the conduct is deemed not to have been that of the defendant. In short, involuntariness negates both mens rea and actus reus. Some text books deal with involuntary behaviour and automatism in the chapter on actus reus for this reason. We deal with it here, along with insanity, since both, in effect, are excuses with their own set of rules governing their operation. For a brief discussion as to whether the voluntariness of a defendant’s conduct should be viewed as an element of the actus reus or the mens rea of an offence, see Wilson, Chapter 4: ‘Actus reus’.
12.1.1 Automatism Automatism is a plea by a defendant that his/her actions were involuntary, that is, were not under the control of their conscious mind. This can be the result of loss of physical control, for example, a push by a third party, a heart attack, brake failure or an attack by a swarm of bees while driving a car. Or it can be the result of loss of mental control such as a blow to the head or sleepwalking. In the case of Bratty v Attorney General for Northern Ireland [1961] 3 All ER 523 HL, Lord Denning explained the position as follows: No act is punishable if it is done involuntarily: and an involuntary act in this context… means an act which is done by the muscles without any control by the mind such as a spasm, a reflex action or a convulsion; or an act done by a person who is not conscious of what he is doing such as an act done whilst suffering from concussion or whilst sleepwalking…
In the case of Bell [1984] Goff LJ gave some other examples of involuntary conduct for which no criminal liability may attach: … a motorist… [who] has been attacked while driving by, for example a swarm of bees or a malevolent passenger, or because he has been affected by a sudden blinding pain, or because he has become suddenly unconscious by reason of a blackout, or because his vehicle has suffered some failure, for example, through a blow-out or through the brakes failing. See also Hill v Baxter [1958].
Similarly, if the same thing happened because he had a heart attack or epileptic fit, his conduct is involuntary. Where a defendant has no control over what he is doing he is said to be acting as an automaton.
Activity 12.1 Which of the following do you think might amount to automatism and which, if any, do you think should negate John’s possible criminal liability? a. As John drove along the road, a wasp flew into his car. John, who is frightened of wasps, panicked and lost control of the car. b. As John drove along the road he became drowsy and fell asleep at the wheel losing control of the car. c. As John drove along the road, he had a heart attack and lost control of the car. d. At a party, John became so drunk that he did not know what he was doing. He fell through a plate glass window breaking it.
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e. A week later, at another party, John took a mind-altering drug. Under the influence of this drug he thought he was in the centre of the earth fighting snakes but, in reality, he was strangling his friend. You will find the answers to the above as you work your way through this chapter. Read pp.75–77 of Simester and Sullivan’s Criminal law theory and doctrine which you will find in your study pack Do you think Ms Larsonneur’s conduct could be said to be ‘voluntary’? There is no feedback for this activity.
12.2 Sane automatism Sane automatism arises where the automatism is caused by an external factor such as hypoglycaemia (low blood sugar caused by, for example, a diabetic having taken too much insulin), concussion caused by a blow to the head, alcohol or drugs. Automatism may equally arise due to disease of the mind (insane automatism) which results in a special verdict of not guilty by reason of insanity. This will be covered later. In the case of Quick [1973] the defendant (a diabetic nurse who had attacked a patient) claimed to be suffering from hypoglycaemia having taken his insulin, but very little food and an amount of alcohol. He was charged with assault occasioning actual bodily harm contrary to s.47 of the Offences Against the Person Act 1861. He wished to raise the defence of automatism but when the trial judge ruled that hypoglycaemia was insane automatism, he pleaded guilty in order to avoid the possibility of being found insane and then appealed to the Court of Appeal. The Court of Appeal quashed his conviction but with some reservations given the impact of the voluntarily consumed alcohol on his condition (see prior fault below). Lawton LJ said: The difficulty arises as soon as the question is asked whether he should be detained in a mental hospital. No mental hospital would admit a diabetic merely because he had a low blood sugar reaction.
And later: Quick’s alleged mental condition, if it ever existed, was not caused by his diabetes but by his use of the insulin prescribed by his doctor. Such malfunctioning of his mind as there was, was caused by an external factor and not by a bodily disorder in the nature of a disease which disturbed the working of his mind. He should have had his defence left to the jury.
The apparent inconsistency in the law, which results in a finding of insanity where a person has raised the defence of automatism caused by hyperglycaemia but a finding of sane automatism if caused by hypoglycaemia, has been subject to criticism. Consider now the courts’ treatment of stress. In Hennessy [1989] 2 All ER 9 the Court of Appeal approved the ruling in the Canadian case of Rabey [1978] that the ordinary stresses and disappointments of life are ‘the lot of mankind’† and would not, in any event, constitute an external cause. It would seem from these decisions that, in the unlikely event of the courts accepting that stress could result in automatism, it would necessarily be insane automatism. However, see R v T [1990].
Activity 12.2 Why, in the case of R v T (1990), did the Court of Appeal decide that post-traumatic stress disorder could amount to sane automatism?
Activity 12.3 Online research Peter Buck, lead guitarist with the rock group REM, raised the defence of sane automatism when he was charged with a number of offences arising out of incidents on an aeroplane. The solicitor who acted for him published an article in the Law Society Gazette.
†
‘The lot of mankind’ means the fate, or natural circumstances of human beings.
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Find the article published in the Law Society Gazette (which is available through LexisNexis Professional) and answer the following questions. a. Was the verdict guilty or not guilty of the offences charged? b. What was his solicitor’s view as to the verdict?
12.3 Limits to the defence of automatism The defence of automatism has proved unpopular with the courts as it is difficult to disprove. Not surprisingly the courts have sought to limit its operation to the clearest cases. There are, broadly, three ways in which the courts have limited the defence of automatism: 1.
Where the defendant retained limited powers of control.
2. Where there was prior fault on the part of the defendant. 3. Where the condition which gave rise to the automatism can be brought within the ambit of the rules on insanity.
12.3.1 Where the defendant retains some powers of control Should there be any conscious control on the part of the defendant the defence of automatism will not succeed. In Attorney General’s Reference (No. 2 of 1992) [1994] QB 91, D, a lorry driver was charged with causing death by reckless driving. He had been driving for six hours and was found by a psychiatrist to have been driving ‘without awareness’ when he crashed into another vehicle and killed two people. The condition of driving ‘without awareness’ is caused by repetitive visual stimuli and results in a trance-like state (rather like day-dreaming) but does not cause loss of consciousness (such as sleep). D’s plea of automatism therefore failed, because although he was not fully in control of his actions, he was partly in control and had not lost full consciousness. (See also Broome v Perkins [1987] (Div Ct)). Compare the case of Isitt [1978] CA. This case concerned a defendant who was involved in a road accident after which he returned to his van and drove off in a manner which was ‘manifestly dangerous’. He was pursued by the police, finally escaping through some fields. At his trial for dangerous driving there was evidence that he appeared to have been drunk. He raised psychiatric evidence claiming that the original accident had caused ‘an hysterical fugue’† leading to memory loss: his subconscious mind had taken over so that he did not appreciate what he was doing when he was driving. He was convicted and his appeal against conviction was dismissed by the Court of Appeal which confirmed that, although automatism was a defence to the offence of dangerous driving, an ‘hysterical fugue’ rendering a driver’s mind shut to moral inhibitions, was no defence. The driving was purposive. He had some control. This was considered too draconian by the Law Commission. The Draft Criminal Code (Law Com No. 177 Cl.33) included within the definition of automatism any movement which: is a reflex, spasm or convulsion; or occurs while he is in a condition… depriving him of effective control of the act.
This is less harsh than the present requirement of total deprivation of control but please note that this Code is not, and is unlikely to become, law.
12.3.2 Prior fault Where the defendant’s automatism arises through some prior fault of his own, then he may not be successful with his plea of automatism. For example, where a defendant falls asleep – as opposed to having suddenly lost consciousness – at the wheel of his car it is likely that he will be deemed to have been at fault for not having stopped driving when he started to feel drowsy, that is, when he was still able to exercise control.
†
Hysterical fugue, dissociative fugue or simply fugue, is a mental disorder where the afflicted individual is prone to taking unexpected trips in a state of unconsciousness such that he is unable to recall where he has been, or how he ended up in a particular place.
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Sane automatism has thus been sub-divided into two categories. These are: Non self-induced automatism, for example concussion caused by a blow to the head, hypoglycaemia or a swarm of bees in the car. This is a defence both to crimes of specific and basic intent.
Self-induced automatism which arises from voluntary intoxication by alcohol or dangerous drugs. This is not a defence to crimes of basic intent, although it will be a defence to a crime of specific intent where the automatism prevented the defendant from forming the necessary mens rea for the crime. A similar position operates with respect to preventable automatism as where a person suffering hay fever causes a car crash in the courses of a sneezing fit.
Chapter 5 of this guide deals in more detail with specific intent and basic intent offences. Here is a brief recapitulation. A specific intent offence is one which requires the prosecution to prove an actual intention on the part of the defendant. Murder is expressed as a specific intent offence and thus requires proof of an intention on the part of the defendant to kill or to cause grievous bodily harm (Moloney). A basic intent offence could be described as one for which proof of recklessness or negligence on the part of the defendant is sufficient. For example, see the offence of criminal damage discussed in Chapter 2 and Chapter 17. If you consider the definition of this offence set out in Chapter 2 you will see that the mens rea for this offence is expressed as ‘intention’ or ‘recklessness’. It follows from this that recklessness is sufficient mens rea for the offence of criminal damage, provided the indictment includes a reference to recklessness. The Rule in Majewski [1977] that self-induced intoxication is no defence to a basic intent crime applies equally to automatism. The defence may not be relied upon as the defendant will be deemed to have been reckless in allowing himself to get into that state in the first place, as everybody is presumed to know that drinking alcohol or taking recreational drugs alters a person’s state of mind and can, in some cases, lead to violence and aggression. Therefore an awareness of risk on the part of a particular defendant at the time of performing the harmful conduct does not need to be proved (see also Lipman [1970]). Notwithstanding the above, it seems that self-induced automatism due to taking nondangerous drugs, e.g. medication, may provide a defence to basic intent offences. The doctrine of prior fault, here, does appear to require an awareness of risk on the part of the defendant. See R v Bailey [1983] 1 WLR 760 and R v Hardie [1985] 1 WLR 64.
12.3.3 Where the condition which gave rise to the automatism can be brought within the ambit of the rules on insanity The main technique for limiting the use and usefulness of the defence of automatism derives from its affinities with insanity. Automatism resulting from a disease of the mind constitutes insane automatism and does not result in an unqualified acquittal. The courts have widened the notion of insanity far beyond its comfort zone to include mental conditions which few, let alone the medical profession, would regard as insanity. As a result, whenever a person claims that his/her mind was not in control of his/her actions there is the risk that the court will interpret the cause as mental illness with all the consequences this entails. A defendant will be deemed to have been suffering from insane, as opposed to sane, automatism where the condition arose from an internal factor. It need not be a condition which has been suffered by the defendant for any length of time. Thus, there are two types of automatism: insane automatism and sane automatism.† Two important practical ramifications flow from the distinction: the disposal of the defendant and the burden of proof.
†
It is essential that you understand the distinction between these two types of automatism.
Criminal law Chapter 12 Defences 2: involuntary behaviour Disposal of the defendant Where the defendant is successful with the defence of sane automatism the verdict will be one of ‘not guilty’ – a finding of which will result in an unqualified acquittal. Where, however, the defendant is found to have been suffering from insane automatism the verdict will be ‘not guilty by reason of insanity’. This is called the special verdict and gives the judge powers of disposal which are not available where there has been an unqualified acquittal. (See the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991.) These methods of disposal should not be viewed as punishments: the special verdict is a verdict of not guilty.
Burden of proof The distinction between sane and insane automatism has an important impact on the burden of proof: Sane automatism
Insane automatism (insanity)
The defendant bears only an evidential burden of adducing some medical evidence to support the plea of automatism. The burden remains on the prosecution to disprove automatism beyond reasonable doubt.
The burden of proof here is on whoever raises the defence. Where the defendant raises it, the defence bears the burden of proof on balance of probabilities. Where it is raised by the prosecution, then the prosecution bears the burden of proof, the standard being beyond reasonable doubt.
12.3.4 Distinguishing sane and insane automatism. Insanity is one of the exceptions to the rule in Woolmington [1935] AC 462. Therefore where the defendant raises a defence of insane automatism the burden of proof rests on him to prove on balance of probabilities (the civil standard) that, at the relevant time, he was suffering from insane automatism. It is rare, however, for defendants to raise this defence. Where (as is more usual) it is raised by the prosecution, then the burden of proof is on the prosecution to prove beyond reasonable doubt that the defendant was insane at the relevant time. It is frequently raised by the prosecution in response to a plea by the defendant that he was suffering from sane automatism. The distinction between insanity and automatism has become a crucial one. Defendants would prefer to plead automatism because the term is less offensive (and more appropriately reflects the condition they were in at the time of the offence) and because the outcome of this plea is acquittal. The outcome of a successful plea of insanity used to result in the compulsory committal of D to a psychiatric institution for indefinite detention. Since 1991, however, the court may so detain an insane defendant, or may alternatively place D under supervision or simply give him an absolute discharge. It is the M’Naghten Rules which set out the defence of insanity. The defence as a whole will be considered in detail below. For the moment, please bear in mind the following points:
It is the part of the rule that the defect of reason be ‘caused by a disease of the mind’ which is at issue in cases concerning automatism.
Although medical evidence is essential here, insanity is a legal concept, not a medical one. It is a question of law and it follows that it is for the judge to rule whether the condition the defendant was suffering from constitutes a ‘disease of the mind’.
12.4 Insanity So far we have concentrated on how sane and insane automatism are connected and how they can be distinguished. Both involve a claim that the actor lacked the mental capacity to control his/her behaviour due to mental abnormality. If this abnormality arises from what is deemed in law to be a disease of the mind the correct plea is
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one of insane automatism or insanity for which the courts retain special powers of disposal. If the mental abnormality is not caused by a disease of the mind the correct plea is one of automatism for which an unqualified acquittal is the correct outcome. In this section we will examine, in detail, insanity and its potential effect on criminal responsibility. ‘Insanity’, as will now be obvious, is a legal term and is no longer used in the medical profession to identify any particular type of mental disorder. Indeed, the term is now outdated and potentially offensive. The use of the term dates back to the nineteenth century, when the common law defence of insanity was developed. At that time the science of psychiatry was relatively new and the categorisation of mental illness was not well-developed. Consequently both the term, and the type of mental disorder it describes, are significantly different from the understanding of mental illness prevalent within the medical profession today. Ironically, therefore, the defence tends to apply in many cases we would not consider as cases of mental illness and tends not to apply in many cases we do, such as psychological disorders, depression and psychoses. A defendant who claims to be ‘insane’ must first be judged to be ‘fit to plead’ or fit to stand trial. This means it must be judged that, despite his mental condition at the time of the trial, he can understand the trial process and the charges made against him. At this stage, the actus reus of the offence must be established, so that the defendant is not condemned as unfit to plead when he has not committed the offence (see Antoine [2001] 1 AC 340). If he is judged unfit to plead the trial cannot continue and D cannot be convicted. If D is fit to plead the trial can proceed, but D may plead the defence of insanity or automatism (depending on the nature of his mental disorder).
12.4.1 The components of the defence of insanity D may raise the defence of insanity where he claims he lacked mental capacity at the time of committing the offence. In any case where D raises this defence the prosecution must prove the actus reus of the offence to ensure that there may be prima facie liability. However, they do not need to prove mens rea (since raising the defence is essentially a denial of mens rea). The defence then needs to prove lack of mens rea by establishing that D fulfils the various requirements of the test of insanity set out in M’Naghten [1843]. (Procedurally this is unusual since the presumption of innocence requires that the prosecution prove guilt and not that the defence disprove it. However, in M’Naghten it was stated that all men are presumed sane and therefore D must bear the burden of proving that he is not.) In M’Naghten the judges explained that: it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, arising from disease of the mind, as not to know the nature and quality of the act he was doing, or, if he did know it, that he did not know what he was doing was wrong.
Disease of the mind What constitutes a ‘disease of the mind’ is a legal question and not a medical one. The first consideration, then, must be to determine what conditions might amount to a disease of the mind. This is a legal rather than medical judgment. Some conditions such as hyperglycaemia (high blood sugar), sleepwalking and epilepsy have been held to be diseases of the mind for the purposes of distinguishing between sane and insane automatism. The legal meaning of this term was discussed in the leading case of Sullivan [1984] 1 AC 1512. In this case, D, who suffered from epilepsy, kicked his friend in the head during an epileptic seizure. At trial, the trial judge ruled that the defence of insanity would be available but not the defence of automatism. D, wishing to avoid the consequences of a plea of insanity, changed his plea to guilty and was convicted, but appealed on the grounds that he should have been able to plead automatism.
Criminal law Chapter 12 Defences 2: involuntary behaviour Lord Diplock took the opportunity to clarify the meaning of ‘disease of the mind’: If the effect of a disease is to impair these faculties (of reason, memory and understanding) so severely as to have either of the consequences referred to in the latter part of the rules, it matters not whether the aetiology of the impairment is organic, as in epilepsy or functional, or whether the impairment itself is permanent or is transient and intermittent, provided that it subsisted at the time of commission of the act… the [reason for] the defence of insanity… has been to protect society against recurrence of the dangerous conduct.
The following conclusions may be drawn from this statement:
As stated in Bratty [1963] the ‘mind’ should be understood in its ordinary meaning to be the mental faculties of reason, memory and understanding. A disease of the mind was therefore an impairment of those mental faculties.
The causes of the impairment are not important. A disease of the mind does not have to be a disease of the brain. It could be, for example, as in Kemp, a deterioration of the arteries which has an effect on the defendant’s mental faculties.
It does not matter whether the disease is organic (as in the case of epilepsy) or functional (as in schizophrenia).
It is also not important whether the disease is permanent or transient.
On this understanding, epilepsy was clearly a disease of the mind, being an organic, albeit transient, impairment of the mental faculties. In drawing the distinction between epilepsy (which could not give rise to a defence of (sane) automatism) and, for example, a blow to the head causing concussion (which could), Lord Diplock drew a distinction between conditions caused by internal factors (insanity) and external factors (sane automatism). This distinction has subsequently been used to determine whether D can plead automatism or insanity as a defence in a number of cases involving a variety of physical or mental disorders. It is not the only test which has been used. Lord Denning, for example, limited the scope of insanity, as opposed to (sane) automatism, to cases where the condition rendered the defendant prone to violence. In Bratty (above) he said: 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.
Both this test and the more orthodox test used in Sullivan support the decision in Burgess in which the defendant, while sleepwalking, had injured the victim. It was held that sleepwalking would amount to insane automatism. This was because the defendant was prone to sleepwalking. Whether it would be classed as insane automatism if it were a one-off episode caused, for example, by a blow to the head, or the taking of drugs or alcohol would be classed as sane automatism is open to question, however. This is because in such cases the state of automatism would have been caused by an external factor. Hyperglycaemia (which arises when a diabetic takes no or insufficient insulin) has also been held to amount to insane automatism, as it would be the diabetes (an internal factor) causing the automatism rather than, as in hypoglycaemia, the taking of insulin. See Hennessy [1989] CA and Bingham [1991] CA. The policy behind these decisions is not difficult to ascertain. Under normal circumstances, it is difficult to imagine a situation where a controlled or partially controlled epileptic, a sleepwalker or a diabetic who forgot to take his insulin, would be a candidate for compulsory hospitalisation. Nonetheless, a person who has (albeit unwittingly) caused harm whilst in the throes of one of these conditions is viewed by the criminal courts as dangerous: they suffer from a ‘mental disorder which has manifested itself in violence’.
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This person is not at fault and so should not be convicted of a criminal offence, but a not guilty verdict leaves the judge powerless to make any provision in relation to that person. The special verdict does not. Although the defendant is ‘not guilty’ the judge has the power to make an appropriate order. It must be said, however, that it is difficult to envisage an appropriate order for a forgetful diabetic!
Activity 12.4 a. Read the cases of Hennessy [1989] 2 All ER 9; Quick [1973] QB 910; Burgess [1989] 2 QB 92; R v T [1990] Crim LR 256; Bingham [1991] Crim LR 433. Then assess which defence the defendant in each of these cases was permitted to plead by completing the following table: Case
Disorder
Internal
Sullivan
Epilepsy
External
Defence Insanity
Hennessy Quick Burgess RvT Bingham
b. Having read these cases what comments would you make on the application of the defence of insanity? Why might the courts draw a distinction between a defendant who offends while sleepwalking and a diabetic defendant who offends having eaten and not taken his insulin? How did Lord Diplock in Sullivan justify the distinction? Once it is established that D has a disease of the mind, the defence of insanity is not yet proved until the other requirements are established.
Defect of reason The disease of the mind, resulting from an internal factor, must cause a defect of reason. This means that D failed to use the mental faculties of reason, memory or understanding that have been impaired. If, notwithstanding that D suffered from a disease of the mind, he did use his powers of reasoning, then the defence must fail. In Clarke [1972] 1 All ER 219 for example, D suffered from depression (internal cause?), but stole items from a supermarket absent-mindedly because of her depression. The Court of Appeal held that she was not labouring under a defect of reason as she had merely had a momentary lapse in concentration. (Mrs Clarke’s conviction was quashed.)
D did not know the nature and quality of his act The defect of reason, caused by a disease of the mind, must result in one of two misperceptions on the part of the defendant. This requirement suggests that D did not know the physical nature or quality of his act, rather than any legal or moral quality attached to it. So for example, if D, under an insane delusion, throws his baby onto a fire believing that the baby is a log of wood, then he may be said not to know the nature and quality of his acts.
D did not know that what he was doing was wrong This alternative misperception of D’s acts relates to the legal quality of the act. A misperception as to the moral quality of the act would not appear to suffice. An example can be found in Windle [1952] 2 QB 826. In this case, D killed his wife by giving her an overdose of aspirin. He had cared for his mentally ill wife for some time and she had often talked of committing suicide. D himself became depressed and claimed at his trial that he was suffering from folie à deux, a condition in which long-term care of a mentally ill person results in the carer himself becoming mentally ill. D therefore pleaded the defence of insanity. However, his defence failed because the court found
Criminal law Chapter 12 Defences 2: involuntary behaviour that whether or not he had a defect of reason caused by a disease of the mind, he knew that his actions were legally wrong, even if he believed that they were not morally wrong. The Court of Appeal confirmed that the M’Naghten Rules clearly intended that ‘wrong’ meant legally wrong and not ‘wrong according to the opinion of one man’. Knowledge that D’s actions were legally wrong would cause the defence to fail even where D claims that his disease of the mind causes him to have an ‘irresistible impulse’ to commit that act. This may seem unfair, but it demonstrates how a mere disease of the mind is not enough in itself to constitute a defence of insanity. Remember that the defence is, in effect, a denial of mens rea and therefore this final part of the test is crucial in proving that mens rea did not exist. Of course, if an insane ‘irresistible impulse’ also renders the defendant unable to appreciate that his actions are wrong then the defence may succeed (see Sodeman [1936]).
12.4.2 Reform The problems with the definition of insanity and automatism have been outlined above. They hinge on the antiquated definition of ‘disease of the mind’ which does not accord with modern perceptions of mental illness. Clearly the law in this context needs updating. The definition of ‘mental abnormality’ for the purposes of diminished responsibility could be extended to cover defendants not charged with murder. However, as this is only a partial defence which reduces liability, this may not be satisfactory for a defendant who is denying mens rea. The Law Commission’s Draft Criminal Code 1989 proposes an alternative and more modern definition of insanity which uses the terms ‘severe mental illness’ or ‘severe mental handicap’ as alternatives to ‘disease of the mind’. The proposed defence would be labelled the ‘mental disorder’ defence rather than insanity. Both severe mental illness and severe mental handicap are defined more widely than the nineteenth century approach. Severe mental handicap includes:
lasting impairment of intellectual functions shown by failure of memory, orientation, comprehension and learning capacity
lasting alteration of mood of such degree as to give rise to delusional appraisal of D’s situation, his past or his future, or that of others, or lack of any appraisal
delusional beliefs, persecutory, jealous or grandiose
abnormal perceptions associated with delusional misinterpretation of events
thinking so disordered as to prevent reasonable appraisal of D’s situation or reasonable communication with others.
Severe mental handicap is defined as a state of arrested or incomplete development of mind which includes severe impairment of intelligence and social functioning. This remains a draft criminal code and is not law. You may, however, think about whether, and in what ways, this defence may improve current law.
Summary In this section we have outlined defences associated with mental disorder. These are general defences and therefore differ from diminished responsibility which is only available as a partial defence to murder. The defence of insanity effectively involves a denial of mens rea. The defence of automatism effectively involves a denial of actus reus. The distinction between the two has been drawn in terms of whether the disorder from which D suffers is caused by an internal or external factor, the former constituting a disease of the mind and giving rise to a defence of insanity, while the latter constitutes an automative state and gives rise to the defence of automatism. The distinction has been criticised and largely arises from an antiquated definition of insanity for legal purposes.
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Self-assessment questions a. What is meant by a disease of the mind? b. What is the difference, legally and in practice, between a diabetic in a hyperglycaemic state and one in a hypoglycaemic state? c. Which defence (if any) would a defendant suffering from each of the following conditions be able to plead:
severe pre-menstrual tension
a head injury which causes periodic and transient black-outs
a sleep disorder which causes D to suddenly fall asleep for brief periods at any time
a brain tumour
depression
schizophrenia.
Reminder of learning outcomes By this stage you should be able to:
outline and discuss the requirements for the defences of insanity and automatism.
Sample examination questions Question 1 Frank is a former cocaine addict. Abuse of the drug over a number of years has left him unusually paranoid and vulnerable. Frank owes Grant a large sum of money. Grant has become impatient for the money and sends his small nineyear-old son, James, round to Frank’s house to ask for it back. James, in his squeaky voice, tells Frank that he must give the money to him ‘there and then. I don’t mind how you obtain it. Steal it if you have to, just give it back.’ Frank has long believed (without foundation) that Grant desires to kill him. Terrified, he takes some money from his flatmate’s wallet and gives it to James. Would Frank have a defence to a charge of theft? Question 2 ‘The present line between automatism and insanity, depending as it does on the distinction between “internal” and “external” factors, renders the law an ass.’ Would it be better to abolish the defence of insanity and simply allow mental disorder to negate mens rea? Discuss.
Advice on answering the questions Question 1 In this case you need: To assess whether Frank has committed the offence of theft, by carefully considering all the elements of theft. Do not assume that they are satisfied! If they are you can then consider whether he may plead the defence of duress by threats. First, is there an imminent threat of death or serious injury? This is unlikely as James does not specify any threat from himself. However, does Frank believe that there is threat in this situation? He believes that Grant desires to kill him. There are two issues here. Is his mistaken belief reasonable? (Remember a mistaken belief in relation to duress must be reasonable – Graham.) Secondly, is that perceived threat (if reasonable) imminent? Does Frank have an avenue of escape? He might be thought to have an avenue of escape if he believes that Grant is likely to kill him himself. As Grant is not there he may be able to seek police protection and this case may resemble Heath and Hasan. Is it distinguishable from Hudson?
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If he believes that Grant has sent his son to kill him he may believe the threat is more imminent, but the jury would have to consider whether this belief is reasonable (given that James is young, small and speaks in a squeaky voice). If Frank can satisfy this part of the test, the jury must then judge his actions by the standards of a person or reasonable firmness. Which of Frank’s characteristics could be taken into account in applying this objective test? Which are relevant to his response to the threat? His paranoia and vulnerability are the result of long-term drug abuse and are unlikely to be admissible (Bowen). Note that self-defence would not apply as a defence here because Frank has committed theft and has not used force. Question 2 This question calls for a critical appraisal of the law, this time on insanity and automatism, the mental disorder defences. You are asked to consider whether the development of common law in this area has become irrational and unreasoned. There is no shortage of academic opinion on this and you should draw on the critiques that you have read and use the case law to illustrate your arguments. Then the question asks you to consider possible alternative approaches. The question specifies the alternative approach of dispensing with the mental disorder defences entirely and relying on the fact that where D genuinely has a relevant mental disorder of sufficient gravity, he is likely to lack mens rea. Would this be a safe approach? Would this approach acquit those entitled to be acquitted but not afford a defence to those who should be convicted? You might also discuss a different alternative approach involving finding a more suitable definition of mental disorder – such as that used in relation to diminished responsibility.
Activity 12.5 Please go to your study pack and read the extract from Simester and Sullivan Criminal Law Theory and Doctrine pp.114–117 and consider the following questions. Outline three situations where a defendant may be held to be criminally responsible even though his conduct was involuntary. In respect of antecedent fault, Simester and Sullivan point out that English law is out of line with some other jurisdictions. What do they say is the reasoning in these other jurisdictions? Which do you prefer and why? There is no feedback to this activity as the answers are to be found on the pages to which you have been referred. It can be seen that the scope of the defence of automatism simpliciter has been severely limited by the courts. Where there is evidence that, at the time of the alleged offence, the defendant:
displayed any control, or
was suffering from a disease of the mind, or
was guilty of any prior fault,
the defence of automatism simpliciter will not lie.
Activity 12.6 Online research 1. Find the case of R v Hardie on Westlaw and read Parker LJ’s judgment.† a. With what offence (under which sections of what Act) was Hardie charged? b. What was Hardie’s ground of appeal? c. The trial judge had directed the jury that the effects of Valium were necessarily irrelevant. Did Parker LJ agree? d. How did Parker LJ say that the jury should have been directed? 2. Find the case of R v Bailey [1983] 1 WLR 760 in the All England law reports and read the headnote.
†
Ignore any references in that case to R v Caldwell which has now been overruled (see Chapter 6). This does not affect the actual decision in Hardie which is still good law.
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Activity 12.7 Consider whether John might be successful with a plea of automatism under the following circumstances. Do not consider any specific offences. a. Having taken the required prescription of insulin for his diabetes, John decided not to eat any breakfast. On his way to work, due to hypoglycaemia he stumbled and fell against Susie who fell over and hurt herself. b. Having forgotten to take his insulin, John, on his way to work and suffering from hyperglycaemia stumbled and fell against Susie who fell over and hurt herself. c. While recovering from an epileptic fit, John beat Susie up causing her injury.
12.5 Other ‘failure of proof’ defences Essential reading
Wilson, Chapter 9: ‘Defences (1)’.
12.5.1 Mistake Where a defendant makes a mistake, this may give rise to a defence in a number of ways. This partly depends on what the mistake is about. A mistake as to a fact may negative actus reus providing the factual mistake is essential to the actus reus requirements of an offence. A defence may alternatively negative mens rea if it is a mistake about the consequences of D’s actions, which may mean that he did not foresee a particular consequence and is therefore not reckless. Finally, mistakes as to the surrounding circumstances of a criminal act may give rise to an affirmative defence, such as duress or self-defence, where D mistakenly believes that he is compelled to act because he (wrongly) perceives himself or another to be under threat.
Mistakes as to law This type of mistake is easily dealt with. As everyone is presumed to know the law, ignorance of it is no defence to any crime. So a person who arrives in England and steals a car to drive to his hotel cannot plead in his defence that he did not know that casual theft of cars was unlawful under English law. There are some exceptions to this rule, however. For example, under s.2(1) of the Theft Act 1968 it is a statutory defence to the charge of theft to claim that D mistakenly thought that, in law, the property appropriated belonged to D himself. This honest belief negates any finding of dishonesty. This may, however, be a mistake of fact rather than a mistake of law. D would be deemed to know that to appropriate something that belongs to another is a criminal offence, but he mistakenly believes, as a matter of fact, that the property belongs to himself (see also Smith (David) [1974] Crim LR 101).
Mistakes as to fact Mistakes as to fact may result in the prosecution failing to prove either the actus reus or the mens rea of the offence, providing the mistake is relevant. If D believes he is stealing Robert’s wallet, but in fact is stealing Roger’s wallet, his mistake would not negative an essential constituent of the crime, provided the wallet belonged to some other person. †
Some factual mistakes may negative the actus reus of the offence. An example, which is often cited to illustrate this point, is Tolson [1889]. In this case, D was accused of bigamy.† D’s husband had been missing for five years and she believed he was dead.
Bigamy is the offence of going through a ceremony of marriage when D is already married.
Criminal law Chapter 12 Defences 2: involuntary behaviour After remarrying she discovered he was, in fact, still alive. Her honest and reasonable belief that her husband was dead could be said to have negatived actus reus in this case. Although the court required her belief to be reasonable as well as honestly held, the House of Lords disapproved of this requirement in B v DPP [2002]. It is now thought to be correct to state that a factual mistake which negatives actus reus need only be honestly held by D (see Wilson, Chapter 8: ‘Relationship between actus reus and mens rea’).
Activity 12.8 D stabs V, believing V to be sleeping. In fact V is already dead. Can D be liable for a homicide offence?
Mistakes as to surrounding circumstances D may make a factual mistake regarding the circumstances surrounding his commission of an offence. If such a surrounding circumstance is not relevant to the actus reus or mens rea of the offence, then it may give rise to an affirmative defence such as self-defence or duress. These defences are discussed in more detail below. The general rule, however, as illustrated in Williams (Gladstone) [1984] Crim LR 163, is that a mistaken belief in these circumstances needs only to be honestly held and does not have to be reasonable. In Williams D saw V assaulting a youth who was calling for help. In fact, V was lawfully arresting the youth (although V was falsely claiming to be a police officer). When V was unable to produce identification to prove he was a police officer, D punched him. The Court of Appeal acquitted D on a charge of assault, stating that: the reasonableness or unreasonableness of D’s belief is material to the question of whether the belief was held at all. If the belief was in fact held, its unreasonableness, so far as guilt or innocence is concerned, is neither here nor there. It is irrelevant.
Drunken mistakes The general rule, stated above, that an honest mistaken belief in the surrounding circumstances of the commission of an offence may afford a ‘defence’, does not apply where D is intoxicated and where the mistake was induced by D’s voluntary intoxication. In O’Grady [1987] Crim LR 706, D, who was heavily intoxicated, attacked and killed V, believing (mistakenly) that V was attacking him with a glass. The Court of Appeal stated that no defence could be pleaded where D relied on a mistake induced by voluntary intoxication.
Mistakes relating to mens rea A failure to appreciate the consequences which flowed from an act can be a ‘defence’ as it can render the prosecution unable to prove a subjective mens rea. This may be considered in relation to mistake. For example, D kicked a football into V’s garden, mistakenly believing that it would miss V’s greenhouse. In fact, a gust of wind blew the football off course, it hit the greenhouse and smashed several panes of glass. D may argue in his defence to a charge of criminal damage that he honestly did not foresee the risk of the football smashing the glass. Under the subjective test of recklessness which now applies universally (after R v G [2003]) that honest, but mistaken belief would negative mens rea. The same would be true in relation to intent, whether direct or oblique (Woollin [1998]), since those states of mind are also assessed subjectively. One exception to this is the mens rea of rape and sexual offences under s.104 of the Sexual Offences Act 2003. Although these offences must be committed intentionally, a second part of the mens rea for each of them is that D lacked reasonable belief in V’s consent. Therefore, in order to negative mens rea for these offences, D’s mistaken belief in V’s consent must be reasonable as well as honestly held.
12.5.2 Intoxication In some circumstances a defendant who is heavily intoxicated through drinking alcohol or taking drugs may be afforded a defence. Not surprisingly, this defence is very limited in its application as the courts do not wish to encourage offenders to intoxicate
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themselves in order to escape liability. Also, the courts will take a dim view† of any crime committed under the influence of voluntary intoxication as a matter of social policy. However, where a defendant is very heavily intoxicated, whether voluntarily or involuntarily, they may be able to claim that they did not form mens rea. As intoxication can severely impair a person’s capacity to reason and exercise judgment, a defendant may not be able to foresee risks or form a criminal intent.
†
A dim view = a negative, unfavourable or disapproving view.
This poses a problem in criminal law since mens rea is an essential constituent part of criminal liability for all offences (except those of strict liability). The cases in which intoxication have been discussed reflect this difficulty. You will see how the courts are unwilling to afford a defence which may suggest that D’s conduct is not blameworthy (especially where intoxication is voluntary) and yet they must confront a situation in which D does not appear to have mens rea, possibly through their own fault. The case of Majewski [1977] attempted to find a legal solution to this dilemma, but as with many dilemmas there is no easy solution and the approach of the courts has been heavily criticised, as discussed below.
Levels of intoxication Intoxication is not a defence in itself: ‘A drunken intent is nevertheless an intent’ (Sheehan and Moore [1975] Crim LR 339 per Lane LJ). Its only relevance in a criminal trial is that it may put in doubt the defendant’s mens rea, that is ,that he intended or foresaw the consequences of, or the circumstances surrounding, his action. It follows that a relatively high degree of intoxication is required before anyone can claim that their mind had ceased to function to the extent that they did not form mens rea. The level of drunkenness required before D can claim that he lacked mens rea is a question of degree in any case since each individual’s reaction to intoxicating substances is different.
Activity 12.9
Hilda consumed five double vodkas at a party.† Freed of her natural inhibition, she climbed on a table and began dancing. As she did so she knocked a valuable vase off of the table and it smashed. Would Hilda have a defence to a charge of criminal damage?
Harold drank 10 pints of beer (20 ‘units’) in the pub one evening. After the pub closed he got into a fight outside and punched V in the face. He claimed the next morning that he was drunk and could not remember what he had done. Would Harold have a defence to a charge of assault?
Voluntary intoxication Provided D is intoxicated to the extent that he lacked mens rea then, in principle, he ought to be afforded a defence. The offence with which he has been charged quite simply has not been proved. However, this principle is not fully honoured in doctrine. Where D is voluntarily intoxicated he has a defence only to crimes of specific intent. If, however, D is charged with a crime of basic intent the defence of intoxication will not be available (see below). This general rule was laid down by the House of Lords in Majewski [1976] 2 All ER 142. In order to understand this rule and the operation of the defence of intoxication, it is essential that you have a good understanding of this case and that you read the judgments carefully. Majewski was involved in a fight in a pub, during which he attacked the proprietor, two others and a police officer. He was charged with assault occasioning actual bodily harm contrary to s.47 of the Offences Against the Person Act 1861. In his defence he claimed he had taken a large quantity of alcohol and drugs in the 48 hours before the offence took place and that he did not know what he was doing when he committed the assaults. The House of Lords was therefore faced with a defendant who had voluntarily become extremely intoxicated and had then acted very violently. However, his intoxication was such that he was claiming that he had no mens rea at the time of the offence and so should be acquitted. This caused a problem because, in the view of Lord Elwyn-
†
Five doubles represents 10 ‘units’ of alcohol. The UK Department of Heath recommends that women should not take more than three units per day (and that they should have two alcoholfree days each week). The equivalent recommendation for men is no more than four units per day. Women have a lower tolerance to alcohol than men because they are often smaller and lighter, their bodies contain less water and their metabolisms are different.
Criminal law Chapter 12 Defences 2: involuntary behaviour Jones, the primary function of the criminal law is to ‘maintain order and to keep public and private violence under control’ (at p.147). The Lords therefore had to deal with a conflict:
in their role as guardians of the peace and of public safety on the one hand
and the duty on the other not to convict a defendant unless an offence is fully proven against him.
As a matter of policy the House of Lords were reluctant to declare a blanket defence in these situations, as is evident from Lord Salmon’s statement: A man who by voluntarily taking drink and drugs gets himself into an aggressive state in which he does not know what he is doing and then makes a vicious assault can hardly say with any plausibility that what he did was a pure accident which should render him immune from any criminal liability… I believe the main object of our legal system is to preserve individual liberty. One important aspect of individual liberty is protection against physical violence (pp.157–78).
The House of Lords therefore adopted a rule which had previously been outlined in DPP v Beard [1920] AC 479. This involved dividing criminal offences into two categories: specific intent crimes and basic intent crimes. These categories have no legal definition but have been created for the purposes of this defence. The House of Lords gave some further explanation of how they are to be distinguished in Majewski.
Basic and specific intent crimes Basic and specific intent crimes have already been covered in Chapter 5 and briefly in section 12.3.2 above. In simple terms, a basic intent crime is one which can be committed recklessly. A specific intent crime is one for which only intent will suffice as a mens rea. The rule that voluntary intoxication can only be a defence to a specific intent crime and not a basic intent crime is based on the notion of prior fault: If a man of his own volition takes a substance which causes him to cast off the restraints of reason and conscience, no wrong is done to him by holding him answerable criminally for any injury he may do while in that condition. His course of conduct in reducing himself by drugs and drink to that condition in my view supplies the evidence of mens rea, of guilty mind certainly sufficient for crimes of basic intent. It is a reckless course of conduct and recklessness is enough to constitute the necessary mens rea in assault cases (Lord Elwyn-Jones at p.150).
However, with a specific intent crime, intent cannot be constructed as a mens rea in relation to getting drunk since this would impute far too great a level of prior fault. Hence where the actus reus of a specific intent crime is committed but D is too drunk to have mens rea there can be no offence and the ‘defence’ of intoxication is effectively available.
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Activity 12.10 The following table lists a number of the offences covered in this subject guide. Using the distinction set out by Lord Elwyn-Jones in Majewski, set out the mens rea and assess which are basic intent and which are specific intent crimes. Offence
Mens rea
Basic/specific intent
Murder Manslaughter Robbery Theft Obtaining property by deception Criminal damage Attempts Assault occasioning actual bodily harm (s.47 OAPA 1861) Wounding or inflicting GBH (s.20 OAPA 1861) Wounding or inflicting GBH (s.18 OAPA 1861) Rape Sexual assault Burglary
The approach to voluntary intoxication in Majewski has been subject to much criticism. It has been argued that it lacks legal reasoning and accuracy on a number of grounds. For example, suppose that D starts drinking at 6pm, loses his awareness at 10pm and commits a common assault at 1am. According to the test in Majewski, D forms mens rea at 10pm but the actus reus is not committed until 1am. This means the mens rea and actus reus occur at different times and so this test breaches the principle of contemporaneity.† Elsewhere in criminal law it is possible to construct liability where an act occurs but mens rea is formed later, by interpreting D’s actions as a continuing act (see for example Thabo Meli [1954] or Fagan [1969]). Here the House of Lords are suggesting that D may have a continuing state of mind. If mens rea is formed at 10pm in the above example, that state of mind exists in abstract unless and until a criminal act is performed. D is not reckless as to a particular consequence, but merely generally reckless. This does not make sense, as according to Cunningham [1957] recklessness must involve actual foresight of a risk. At 10pm D could not be said to have foresight of any particular risk, except that he may commit a crime. Lord Russell attempted to pre-empt such criticisms of Majewski by offering a more general view of mens rea: Mens rea has many aspects. If asked to define it in such a case as the present I would say that the element of guilt or moral turpitude is supplied by the act of self-intoxication reckless of possible consequences (p.171).
This statement suggests that mens rea is a state of moral blameworthiness rather than a more specific state of mind in relation to a particular risk. Suppose D has never smoked cannabis before and does not know what effect it will have on him. If he becomes intoxicated and commits, say, criminal damage, is it true to say that D foresees at the moment he smokes the cannabis that he may commit a crime? He may, rather, believe that it will have no effect on him, or may cause him to fall asleep.
†
Contemporaneity = a state of occurring at the same (or close to the same) time.
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Self-reflection An alternative approach was tried in Caldwell [1981] AC 242. Read Caldwell and assess how the House of Lords formulated this alternative solution to the same problem as Majewski.† Why was the Caldwell solution equally unsatisfactory? Which approach was favoured by the Law Commission in drafting the Draft Offences Against the Person Bill 1998, clause 18?
Activity 12.11 D drinks a large quantity of alcohol and becomes intoxicated. He sets fire to a hotel, which in fact has no guests staying in it that night. The hotel is destroyed but nobody is harmed. D is charged with committing criminal damage with intent or recklessness as to whether lives will be endangered. Using these facts apply both the Majewski and Caldwell approaches to intoxication to assess whether D would be found to have mens rea. Which is preferable? Note that Caldwell was overturned in R v G [2003] and should no longer be applied as current law. Majewski therefore remains the current law on voluntary intoxication.
Involuntary intoxication Where a defendant becomes intoxicated through no fault of his own, for example because his drinks are surreptitiously laced with alcohol or drugs, it is not possible to apply Majewski because he cannot be ‘blamed’ for his actions: he lacks mens rea and he cannot be blamed for the act of becoming intoxicated. His lack of mens rea in itself should therefore afford him a defence on the grounds of involuntary intoxication. It makes no difference whether the crime is one of basic or specific intent in these circumstances. The ‘defence’, however, is one of lack of mens rea so if the offence does require a mens rea (such as in the case of a strict liability offence) involuntary intoxication would not afford a defence. Furthermore, if D, despite being involuntarily intoxicated, did form mens rea he will also have no defence.
Activity 12.12 Read the case of Kingston [1994] 3 All ER 353 on the Online Library and answer the following questions. a. What were the material facts in this case? b. In what way was D intoxicated? c. What general rule did the House of Lords set out in relation to involuntary intoxication? d. Was D convicted? Why?
12.5.3 Soporific drugs If D takes a soporific drug, which he believes will calm him down rather than make him act in an unusually aggressive or outgoing way, he may not be considered reckless under Majewski in becoming intoxicated. In Hardie [1985] 3 All ER 848, D had taken Valium (diazepam) to calm his nerves but under its intoxicating influence set fire to his girlfriend’s flat. He was charged with criminal damage, being reckless as to whether another’s life was endangered. His claim that the intoxication prevented him forming mens rea was accepted in this case (even though he had committed a basic intent crime) because Valium, being a soporific drug, is ‘wholly different in kind from drugs which are liable to cause unpredictability or aggressiveness’.
Summary In this section we have outlined the ‘failure of proof’ defences. In a sense these are not ‘defences’ at all, but a ‘failure to prove’ either the mens rea or the actus reus of the offence with which D is charged. Failure to prove the charge means that there can be no criminal liability at the outset. Where D makes a mistake as to a vital ingredient of
†
Both R v Caldwell and R v Majewski are available in the Online Library.
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the offence, generally an honest mistake will negative that vital element and render the prosecution unable to prove the offence. In relation to rape and other sexual offences, this belief must also be reasonable. Where D is so heavily and voluntarily intoxicated that he does not have mens rea this will only render the offence unproved in relation to specific intent crimes. Intoxication is therefore no defence to a basic intent crime. Involuntary intoxication will only afford a defence where D can claim that as a result of the intoxication he had no mens rea. This applies to both specific and basic intent crimes.
Self-assessment questions 1. What is meant by a ‘failure of proof’ defence? How is this different to an affirmative defence? 2. In what circumstances would a mistake as to law be a defence? 3. In what ways may a mistake as to fact or surrounding circumstances constitute a ‘failure of proof’ defence? 4. When, if at all, must mistakes be reasonable in order to afford a defence? 5. What is the difference between a basic intent and a specific intent offence? 6. When may voluntary intoxication afford a defence? 7. When may involuntary intoxication afford a defence?
Reminder of learning outcomes By this stage you should be able to:
determine the relationship between affirmative defences and ‘failure of proof’ defences
outline and discuss the requirements for the defences of mistake and intoxication.
Summary Whether the prohibited conduct is an act or an omission, such conduct must be voluntary in order to attract criminal liability. Where a person’s conduct is not under the control of his conscious mind so that his bodily movements are unwilled and involuntary he is acting as an automaton. This will negate the actus reus and mens rea (if required)of any offence with which he might be charged. Automatism may be sane or insane and the ramifications in respect of a successful plea will differ depending upon which type it is. Where a defendant has pleaded sane automatism, and it was caused by prior fault on his part this may negate his defence, although there are exceptions to this.
Self-reflection To recap and consolidate what you have learnt in this chapter, read the February 2008 newsletter ‘Automatism’.
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Reflect and review Look through the points listed below: Are you ready to move on to the next chapter? Ready to move on = I am satisfied that I have sufficient understanding of the principles outlined in this chapter to enable me to go on to the next chapter. Need to revise first = There are one or two areas I am unsure about and need to revise before I go on to the next chapter. Need to study again = I found many or all of the principles outlined in this chapter very difficult and need to go over them again before I move on. Tick a box for each topic. Ready to move on
Need to revise first
Need to study again
I can explain the principles relating to automatism.
I understand the distinction between insane and sane automatism.
I understand the ramifications of that distinction.
I can explain the notion of prior fault.
If you ticked ‘need to revise first’, which sections of the chapter are you going to revise? Must revise
Revision done
12.1
Involuntary behaviour: general
12.2
Sane automatism
12.3
Limits to the defence of automatism
12.4
Insanity
12.5
Other ‘failure of proof’ defences
Before you continue to the next topic listen again to audio presentation 3 to recap and consolidate what you have learnt.
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13 Attempt
Contents Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 190 13.1
Attempt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191 Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . 200
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Introduction This chapter is concerned with the offence of attempt. This offence is known as an inchoate offence because it is incomplete. No actual harm is done – none is required. The offence is committed when a person attempts unsuccessfully to commit an offence.
Essential reading and listening
Wilson, Chapter 18: ‘Inchoate offences’, Sections 18.1–18.5.
Sections 1–5 Criminal Attempts Act 1981. You can find this in your statute book or from LexisLibrary in the Online Library.
Audio presentation 14.
Conspiracy and Attempts, Part 8 (Law Com 318, 2009). Available from the Law Commission website: http://lawcommission.justice.gov.uk/docs/lc318_ Conspiracy_and_Attempts_Report.pdf
Learning outcomes By the end of this chapter and the relevant readings you should be able to:
explain the statutory requirements for offences of attempt as set out in the Criminal Attempts Act 1981
explain what is meant by an act which is ‘more than merely preparatory’ to the commission of an indictable offence
identify the mens rea requirement for offences of attempt
identify the situations where there will be liability for an attempt to commit an offence which is ‘impossible’
evaluate the reforms proposed by the Law Commission to the law of attempted crime.
Criminal law Chapter 13 Attempt
13.1 Attempt Essential reading
Wilson, Chapter 18: ‘Inchoate offences’, Section 18.5 ‘Attempt: the substantive law’.
Conspiracy and Attempts, Part 8 (Law Com 318, 2009). Available from the Law Commission website: http://lawcommission.justice.gov.uk/docs/lc318_ Conspiracy_and_Attempts_Report.pdf
The offence of attempt is defined by s.1(1) of the Criminal Attempts Act 1981 which provides: If, with intent to commit an offence to which this section applies, a person does an act which is more than merely preparatory to the commission of the offence, he is guilty of attempting to commit the offence.
By s.1(4) the section applies to any offence triable in England and Wales as an indictable offence. On 10 December 2009 the Law Commission published a report, ‘Conspiracy and Attempts’ (Law Com 318), which, in Part 8, contains reform proposals concerning ‘attempt’.
13.1.1 Actus reus The actus reus of attempt is the doing of an act which is more than merely preparatory to the commission of the substantive offence. The actus reus of attempt has to be expressed in general terms as what will amount to the actus reus of attempted theft is quite different from that which will give rise to liability for attempted murder. It is not enough that D has considered committing an offence, he or she must actually have taken some steps towards committing it. The issue therefore becomes: how much must be done to amount to an attempt and how is this to be determined?
Self-reflection Consider the following facts. At what point do you think Susie has committed ‘an act which is more than merely preparatory to the commission of the offence’ of murder? Susie decided to kill John. She found out where he lived. She went to John’s house and noticed that he left his bedroom window open when he went to sleep at night. She hid a ladder behind a hedge and left. She bought a gun. She bought bullets. She loaded the gun with the bullets. She put the gun in her bag and walked to John’s house. She found the ladder and propped it against the wall of John’s house. She climbed the ladder and pushed the window open. She aimed the gun at John. She let off the safety catch. She pulled the trigger. The gun fired. The bullet missed John and hit the wall. What would you think if Susie had been arrested when she got to the top of the ladder? Or when she was aiming the gun at John? Or if she fell off the ladder when she was halfway up it?
The role of judge and jury Although s.4(3) of the 1981 Act provides that whether an act is more than merely preparatory is a question for the jury, the judge must decide whether what was done could amount to an attempt for the purposes of the Act. The judge should only rule that there is a case to answer if he is satisfied that there is evidence upon which a jury could properly conclude that D performed an act which was more than merely preparatory to the commission of the offence allegedly attempted. If there is such
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evidence the issue must be left to the jury to decide as a question of fact. If not, the judge must direct the jury to acquit.
Complete and incomplete attempts Before looking at the case law it is useful to bear in mind that there are broadly two types of attempt. There are those attempts where the person has done all that he or she believes is necessary to achieve the intended object but fails for some reason. These are often termed ‘complete attempts’. An example of a complete attempt is where the defendant has detonated a bomb, intending to kill, but the bomb fails to explode, or the defendant, intending to kill, shoots at V but misses, as in the example above. An ‘incomplete attempt’, on the other hand, occurs where, although he has done an act that is more than merely preparatory, the defendant has not yet taken the last step, for example where the defendant has planted a bomb and is apprehended as he is about to detonate it or he is apprehended just as he is about to shoot at his intended victim. So far as complete attempts are concerned, the question of whether the defendant has done acts that are more than merely preparatory does not arise. Clearly in such cases the defendant has committed the actus reus of attempt. The problem arises in connection with incomplete attempts, i.e. where the defendant has not done the last act before the commission of the offence. What will amount to acts more than merely preparatory in these cases is problematic. Consider the following cases. Gullefer [1990] 3 All ER 882 Gullefer was betting at Romford greyhound races. He had bet £18 on a dog which looked like it was going to lose its race. As the dogs rounded the final bend, he jumped onto the track in front of the dogs, waving his arms and attempting to distract them. He hoped to have the race declared void so the bookmakers would have to repay the bets to punters. In the event he did not manage to interfere with the race and the stewards decided that it was unnecessary to declare ‘no race’. He was charged with and convicted of attempted theft. He appealed, contending that his actions were not sufficiently proximate to the complete offence of theft to be capable of comprising an attempt to commit theft. Was the appellant still in the stage of preparation to commit the substantive offence, or was there a basis of fact which would entitle the jury to say that he had embarked on the theft itself? Might it properly be said that when he jumped on to the track he was trying to steal £18 from the bookmaker? Lord Lane said no; it could not be said that at that stage Gullefer was in the process of committing theft. What he was doing was jumping onto the track in an effort to distract the dogs, which in its turn, he hoped, would have the effect of forcing the stewards to declare ‘no race’, which would in its turn give him the opportunity to go back to the bookmaker and demand the £18 he had staked. He had not gone beyond the preparation stage. Lord Lane CJ stated that the crucial question was whether the accused had ‘embarked upon the crime proper’. Jones (1990) 91 Cr App R 351 The appellant got into a car driven by his ex-mistress’s new lover and pointed a loaded sawn-off shotgun at his face. The victim managed to grab hold of the gun and throw it out of the window. Although the safety catch of the gun was on and Jones had yet to put his finger on the trigger and pull it, the Court of Appeal upheld his conviction for attempted murder. Clearly his actions in obtaining the gun, in shortening it, in loading it, in putting on his disguise and in 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
Criminal law Chapter 13 Attempt with the intention of killing him, there was sufficient evidence for the consideration of the jury on the charge of attempted murder. It was a matter for the jury to decide whether they were sure that those acts were more than merely preparatory. In our judgment, therefore, the judge was right to allow the case to go to the jury, and the appeal against conviction must be dismissed.
Attorney General’s Reference (No. 1 of 1992) [1992] 96 Cr App R 298; Crim L R 274 The Court of Appeal held that, in the case of attempted rape, it is not necessary to prove that the defendant had gone as far as attempting physical penetration of the woman’s vagina. It is sufficient if there is evidence of acts which a jury could properly regard as more than merely preparatory to the commission of the offence. See also Dagnall [2003] EWCA Crim 2441.
Two ‘troubling cases’ The Law Commission, in its recent review of the law of attempt identified two decisions of the Court of Appeal which it regarded as adopting an unnecessarily restrictive approach to the question of whether acts were merely preparatory. Campbell [1991] 93 Cr App R 199 Police officers had been tipped off that a robbery might be made on a sub-post office, so they kept watch. The appellant was discovered loitering around the post office wearing a crash helmet. He was wearing sunglasses and seemed to be carrying a heavy object. He stopped about 30 yards from the post office, took off his glasses and looked round and then left. Thirty minutes later he returned and was arrested in front of the post office. He was searched and found to be in possession of an imitation gun and a threatening note. He admitted that the note was meant to frighten the person behind the counter at the post office but maintained that he had then decided not to rob the post office – it was too dangerous. He had been about to drive off when he was arrested. At the end of the prosecution case the defence submitted that there was no case to answer, that it was unsafe to allow the jury to consider further. This submission was rejected by the trial judge. Campbell was convicted of attempted robbery. Note that on his own admission he had intended to commit a robbery but the issue was whether he had got to the stage of attempting robbery. He appealed against conviction and his appeal was allowed. Watkins LJ in the Court of Appeal said that it was unwise to lay down hard and fast rules. Matters had to be decided on a case-by-case basis. This is to reflect the fact that there is so much variation in the type of conduct required for the whole range of offences that may be attempted and in this case a number of acts remained undone. So far as the series of acts that he had performed was concerned, travelling to and walking towards the post office door were merely preparatory. Watkins LJ stated: A number of acts remained undone and the series of acts which he had already performed – namely, making his way from his home or other place where he commenced to ride his motor cycle on a journey to a place near a post office, dismounting from the cycle and walking towards the post office door – were clearly acts which were, in the judgment of this court, indicative of mere preparation, even if he was still of a mind to rob the post office, of the commission that is of the offence of robbery. 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.
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Self-reflection Commenting on the decision in Campbell, Smith and Hogan’s Criminal Law, at p.392, states: ‘From the viewpoint of public safety it is an unhappy decision. [The police] may feel obliged to wait until [D] has entered the post office and approached the counter before arresting him. The extra danger to post office staff, the public and the officers themselves is obvious.’ Do you agree? Geddes [1996] Crim LR 894 The defendant was found trespassing in the lavatory block of a Brighton school. He was in possession of a large knife and lengths of rope and masking tape. There was evidence that he had intended to kidnap a child. He was convicted of attempted false imprisonment. He appealed against his conviction and his appeal was allowed. His conduct had not gone beyond mere preparation. Although he had entered the school, he had never had any contact or communication with, nor had he confronted, any pupil at the school. He had not moved from the realm of preparation into the area of execution or implementation. Lying in wait for a victim is not sufficient to amount to an attempt to commit an offence. It was said that the issue might be approached by asking whether the defendant has done an act which shows that he has actually ‘tried’ to commit the offence in question or whether he has only got ready or put himself in a position or equipped himself to do so. The Law Commission, in their Consultation Paper 183 (2007), doubted whether Parliament had intended the offence of attempt to be so narrowly construed and stated: According to the approach [in Geddes], to lie in wait for an intended victim to arrive is ‘mere preparation’. This is so even though it may be the last act D commits before perpetrating the actual attack and regardless of the fact that D may be extremely close in both time and space to the point when the attack is to be made. The corollary, of course, is that to pursue or stalk an intended victim or even perhaps to raise a knife against them, with a view to committing the intended offence as soon as the opportunity arises, are also nothing more than illustrations of ‘mere preparation’ (para 14.16) .
Self-reflection 1. Read the case of R v Tosti and White [1997] Crim LR 746. Do you agree with Smith and Hogan that the decision is difficult to reconcile with Geddes? 2. Do you agree with the opinion of the Law Commission that the approach in Geddes is too narrow?
Activity 13.1 The Law Commission in their Report, ‘Conspiracy and Attempts’, (Law Com No. 318) (2009) give the following example. ‘D, intending to kill, creeps up behind V and withdraws his hands from his pockets in order (as D later admits) to strangle V. D’s hands are seized by a police officer just before D strikes, thereby thwarting D’s plan to commit murder.’ According to the approach taken in Geddes would this amount to attempted murder?
Criminal law Chapter 13 Attempt Omissions Although there is no judicial decision on the matter, there is general agreement among commentators that, as the law currently stands, an attempt cannot be committed by omission. The section requires that D ‘does an act’. The Law Commission has recommended a change in the law which would apply only to attempted murder. Whilst noting that there is a ‘conceptual difficulty associated with identifying… an omission which is more than merely preparatory’ it recommends that: the Criminal Attempts Act 1981 be amended so that D may be convicted of attempted murder if (with intent to kill V) D failed to discharge his or her legal duty to V (where that omission unchecked, could have resulted in death) (Law Com No. 318) (2009) (paras 8.147–8.151).
Summary The above cases show that there are two lines of approach to the question of whether acts are merely preparatory. The broader approach exemplified by Jones and Tosti, recognises that some preparatory acts short of actually trying to commit the offence may be sufficiently close to the commission of the full offence to be regarded as more than merely preparatory. A more restrictive approach, adopted by the Court of Appeal in Campbell and Geddes, limits liability to situations where D has actually tried, but failed, to commit the offence.
13.1.2 Mens rea of attempt Section 1(1) of the Criminal Attempts Act 1981 provides that the defendant must have acted with ‘intent to commit an offence’.
The meaning of intent 1. D must intend the act or conduct element of the substantive offence. D must intend the act which forms part of the actus reus – i.e. for attempted rape he must intend penile penetration.
2. D must intend the consequences element of the substantive offence. Although an intent to do GBH will suffice for murder, only an intention to kill will suffice for attempted murder. You do not attempt to murder someone unless you intend to kill them. In O’Toole [1987] Crim LR 759 it was held that although recklessness as to causing damage will suffice for the offence of arson, the attempted offence requires proof that D intended to cause damage. Therefore, for attempt any consequences in the definition of the full offence must be intended. There is authority that the Woollin [1999] 1 AC 82 approach to intention applies to the offence of attempt – see D [2004] EWCA Crim 1391.
Conditional intent In Husseyn (1977) Cr App R 131 D opened the door of a parked van containing a hold-all full of sub-aqua equipment and was charged with attempted theft of the equipment. The trial judge directed the jury that D could be convicted of attempted theft if he had been about to examine the hold-all with the intention of stealing the contents if they were valuable. This was held to be a misdirection, however, on the basis that ‘it cannot be said that one who has it in mind to steal only if what he finds is worth stealing has a present intention to steal’. In Attorney General’s Reference (Nos 1 and 2 of 1979) [1980] QB 180 the Court of Appeal overcame the problem caused by Husseyn, by means of a procedural solution. It held that if D opens a bag with the intention of stealing something only if it is something D finds valuable, D can be convicted of attempted theft even if he finds nothing worth
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stealing provided the indictment states that D intended to steal “some or all of the contents”.
3. D must know of the existence of the circumstances elements of the substantive offence, or if a lesser form of fault is required for the substantive offence, D must know there is a risk that the relevant circumstances exist. If the substantive offence requires proof that D knew that certain defined circumstances existed at the time he performed the relevant conduct then so too does an attempt to commit that offence. However, if recklessness as to the circumstances in the actus reus will suffice for the full offence then it will also be sufficient for the attempt (Khan [1990]). In this case, the defendant was charged with attempted rape. At that time rape required proof that a man had sexual intercourse with a woman who did not consent and that the man knew that the woman did not consent or was reckless as to whether she consented or not – i.e. ‘could not care less whether she consented or not’.† The judge directed the jury that the mens rea for attempted rape paralleled that of the substantive offence. Therefore, the prosecution had to prove that the man tried unsuccessfully to have sexual intercourse either knowing that the woman was not consenting or being reckless as to whether she consented. The defendant was convicted and appealed. He appealed against his conviction arguing that although recklessness as to whether the woman consented sufficed for the full offence, attempted rape required proof that the defendant intended to have sexual intercourse with a woman who did not consent. It therefore followed, he argued, that it must be proved that he knew the woman was not consenting. The Court of Appeal, dismissing the appeal, held that the mens rea is precisely the same in rape and in attempted rape, namely an intention to have intercourse plus a knowledge of or recklessness as to the woman’s absence of consent. The attempt relates to the failure to perform the physical activity. Thus in Khan the prosecution had to show an intention to have sexual intercourse and the remaining state of mind required for the offence of rape. This was followed in Attorney General’s Reference (No. 3 of 1992). The respondents had thrown petrol bombs at a car in which there some passengers. The bombs missed the car. They were charged with attempted aggravated arson being reckless as to whether life would be endangered (see Chapter 17: ‘Criminal damage’). The trial judge held that before a defendant could be convicted of attempting to commit the offence it had to be proved that he intended that the lives of others should be endangered by the damage he intended; recklessness was not sufficient. On a reference the Court of Appeal held that recklessness would suffice. According to Schiemann J in the Court of Appeal:
What was missing in Khan was the act of sexual intercourse, without which the offence was not complete. What was missing in the present case was damage to the first-named property, without which the offence was not complete.
In order to succeed in a prosecution for attempt, it must be shown that the defendant intended to achieve that which was missing from the full offence.
However, this part of the judgment raises the issue of what fault element, if any, is required when D is charged with an attempt to commit a no-fault offence (or an offence that is in part no-fault) or an offence requiring only negligence with regard to a circumstance element. One reading of the Attorney-General’s reference suggests that D will be guilty of attempt if there is an affirmative answer to the question: If D had achieved what he intended would he have been guilty of the full offence? The Law Commission (Law Com No. 318) (2009) rejected this ‘simplistic approach’ to the decision on the basis that:
† See s.1 of the Sexual Offences Act 2003, discussed in Chapter 10.
Criminal law Chapter 13 Attempt This approach, if extended to attempts to commit no-fault offences, would require no fault on the part of D as to a required circumstance element and, in the absence of any consequence element, no fault at all other than the intention to commit the relevant conduct (para 8.118).
Thus they conclude: d. 1. Where D need only be subjectively reckless as to the existence of a circumstance to be liable for the substantive offence, subjective recklessness as to that circumstance should suffice for attempt. e. 2. Where a lesser form of fault or no fault at all is required in relation to a circumstance to be liable for the substantive offence, subjective recklessness as to that circumstance should nevertheless be required for attempt. f. 3. Where a higher form of fault is required in relation to a circumstance to be liable for the substantive offence (for example, knowledge of the circumstance), the same fault should be required for attempt.
Self-reflection Read the example given by the Law Commission (Law Com No. 318) (2009) at para 8.119 and the discussion following it. Do you agree with their conclusion that ‘the simplistic approach, if extended by the courts to offences requiring no fault or mere objective fault, would be contrary to the demands of justice’?
13.1.3 Attempting the impossible Section 1(2) of the Criminal Attempts Act 1981 provides that a person may be guilty of attempt even though the facts are such that the commission of the offence is impossible. Therefore, if you try to kill someone with a harmless substance which you mistakenly believe is a lethal poison you are guilty of attempted murder. In Shivpuri [1987] HL (overruling the 1985 decision of the House of Lords in Anderton v Ryan) the defendant was found in possession of some bags of powder. He thought that he was importing heroin. (In fact he typed his own confession statement!) When analysed, the substance in his possession was found to be vegetable material similar to snuff. He was charged and convicted of attempting to be knowingly concerned in dealing with prohibited drugs. His appeal was dismissed – an impossible attempt is nonetheless an attempt. Contrast this with Taafe [1984]. The defendant had been enlisted by a person in Amsterdam to take some packages into the UK. He thought the packages contained currency and he also thought that importing money into the country was illegal. The packages, in fact, contained cannabis. He was not guilty of any offence – he did not intend to import cannabis and as there is no offence of importing currency he could not be guilty of attempting to import it. By virtue of s.4 of the Criminal Attempts Act 1981, the maximum penalty for attempted murder is life imprisonment. Other indictable offences are subject to the same maximum as applies on conviction on indictment for the full offence.
Offences which cannot be attempted 1.
The Criminal Attempts Act limits liability to attempts to commit offences triable on indictment so a person cannot be guilty of attempting a summary offence. Therefore a person cannot be guilty of attempted assault or battery.
2. By virtue of s.1(4)(a) a person cannot be guilty of attempting to conspire. 3. Nor, by s.4(1)(b), can a person be guilty of attempting to aid, abet, counsel or procure an offence. He can, however, be guilty of attempting to incite. 4. Attempt by omission.
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Although some crimes can be committed by omission, e.g. murder (see Gibbins and Proctor discussed in Chapter 3), it appears that an attempt to kill by omission, e.g. by a parent withholding food from a child, could not be charged as attempted murder under the 1981 Act as s.1(1) requires ‘an act which is more than merely preparatory’.
Successful attempts Where a person is tried on indictment for attempting to commit an offence, he may be convicted of the attempt despite the fact that he successfully committed the full offence (s.6(4) of the Criminal Law Act 1967).
Summary A defendant will be guilty of attempt contrary to the Criminal Attempts Act 1981 where he does an act which is more than merely preparatory to the commission of an indictable offence with the intention of committing that offence. The consequences must be intended but recklessness may be sufficient as regards the circumstances element of the offence. Provided the substantive offence is capable, in law, of being committed, impossibility will be no bar to an attempt.
Reminder of learning outcomes By this stage you should able to:
explain the statutory requirements for offences of attempt as set out in the Criminal Attempts Act 1981
explain what is meant by an act which is ‘more than merely preparatory’ to the commission of an indictable offence
identify the mens rea requirement for offences of attempt
identify the situations where there will be liability for an attempt to commit an offence which is ‘impossible’
evaluate the reforms proposed by the Law Commission to the law of attempted crime.
Sample examination question Mal’s mother was dying from cancer and this had made him extremely depressed as he could not bear to watch her suffer. He asked Sol, a pharmacist, for some arsenic explaining that he intended to use it to kill his mother. Sol agreed to supply the arsenic but supplied him with a non-fatal chemical instead. Sol had never intended to supply Mal with arsenic. Mal put the substance in his mother’s hot milk which she drank every night before going to sleep. However, on this particular night she fell asleep without drinking it but died of a brain haemorrhage during the night. Consider the criminal liability, if any, of Mal and Sol.
Advice on answering the question In addition to an examination of attempt, this question requires you to consider accomplice liability (see Chapter 14). Accomplice liability is covered in the following chapter and you will revisit this question when you have completed that chapter and its associated readings. When considering a question such as this, always analyse the principal offender’s possible liability before you go on to consider any accomplice liability.
Mal’s possible criminal liability Murder Mal is clearly not guilty of murder as his conduct was not the factual cause of his mother’s death. Although he had the mens rea for murder in that he intended to kill her and although she died, his conduct was not a sina qua non of the event – i.e. the actus reus of murder was not made out (White [1910]).
Criminal law Chapter 13 Attempt Attempted murder Section 1(1) of the Criminal Attempts Act 1981 provides that a person is guilty of an attempt if, with intent to commit an offence (triable on indictment) he does an act which is more than merely preparatory to the commission of that offence. By virtue of s.4(3) it will be a question of fact as to whether Mal has done an act which is more than merely preparatory, thus satisfying the actus reus requirements. It is submitted that there would be little doubt in this case that a jury properly directed would conclude that Mal’s act of putting the substance in his mother’s drink was more than merely preparatory. The mens rea for attempted murder is intention to kill (Walker and Hayles (1989) 90 Cr App R 226). The question makes it clear that Mal had the requisite mens rea. Therefore, despite the fact that the substance was non-lethal and did not kill his mother he would be guilty of attempted murder as s.1(2) of the Criminal Attempts Act 1981 provides that a person may be guilty of attempt even though the facts are such that the commission of the offence is impossible (Shivpuri [1987]). Defence Although depression might amount to an ‘abnormality of mind’ and form the basis of a plea of diminished responsibility to a charge of murder it probably does not apply to the offence of attempted murder. There is no requirement in the Criminal Attempts Act 1981 that, had the attempt succeeded, it would have constituted the full offence and s.2(1) of the Homicide Act 1957 provides that the defence is available only where a person kills or is party to the killing. Attempt to administer a noxious thing You should also consider the offence of attempt to commit the offence contrary to s.23 of the Offences Against the Person Act 1861 of administering to or causing to be administered a poison or other noxious thing so as to endanger life. Arsenic is a recognised poison and ‘causing to be administered’ includes the situation where, as Mal intended, the victim self-administers the substance.
Sol’s possible criminal liability Aiding and abetting an attempt Sol’s possible accomplice liability to Mal’s attempted murder is considered at the end of Chapter 14 ‘Parties to crime’.
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Reflect and review Look through the points listed below: Are you ready to move on to the next chapter? Ready to move on = I am satisfied that I have sufficient understanding of the principles outlined in this chapter to enable me to go on to the next chapter. Need to revise first = There are one or two areas I am unsure about and need to revise before I go on to the next chapter. Need to study again = I found many or all of the principles outlined in this chapter very difficult and need to go over them again before I move on. Tick a box for each topic. Ready to move on
Need to revise first
Need to study again
I can explain the statutory requirements for offences of attempt as set out in the Criminal Attempts Act 1981.
I can identify the mens rea requirement for offences of attempt.
I can identify the situations where there will be liability for an attempt to commit an offence which is ‘impossible’.
I can evaluate the reforms proposed by the Law Commission to the law of attempted crime.
I can explain what is meant by an act which is ‘more than merely preparatory’ to the commission of an indictable offence.
If you ticked ‘need to revise first’, which sections of the chapter are you going to revise?
13.1
Attempt
Must revise
Revision done
Before you continue to the next topic listen again to audio presentation 14 to recap and consolidate what you have learnt.
14 Parties to crime
Contents Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 202 14.1
The framework of secondary liability
14.2
Actus reus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203
14.3
Mens rea . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 205
14.4
Withdrawal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 214
. . . . . . . . . . . . . . . . . . 203
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . 216
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Introduction The person who commits the actus reus of an offence with the appropriate mens rea is known as the principal. In a case of murder, for example, he or she is the one who, intending to kill or cause grievous bodily harm, shoots, poisons or in some other way causes the death of V. But several other parties may have been involved in the commission of the offence. D2 may have encouraged D1 to carry out the murder, D3 may have supplied D1 with the weapon he used to carry it out and D4 may have acted as look-out. These are known as secondary parties and the basis of secondary liability is the subject matter of this chapter.
Joint principals It is possible for there to be more than one principal offender. If D and E both stab V and the combined effect of their attack is the death of V, both are liable as principals for the death of V and will be guilty of murder or manslaughter according to their own mens rea.
Innocent agency A defendant may be liable as a principal even although the actus reus is the immediate result of the conduct of another. This is known as the principle of ‘innocent agency’ and applies where a person intentionally causes the actus reus of an offence to be committed by a person who is himself innocent because of a lack of mens rea or lack of capacity. For example, if D, intending to kill, gives a poisoned apple to E and asks him to give it to V and E, not knowing the apple is poisoned, gives it to V who eats it and dies, D will be guilty of murder as a principal.
Essential reading and listening
Wilson Chapter 19: ‘Complicity’, Section 19.2 ‘Complicity: definitions and terminology’.
Audio presentation 15.
Learning outcomes By the end of this chapter and the relevant readings you should be able to:
explain and apply to factual situations the actus reus elements of secondary liability including the meaning of: aid, abet, counsel, procure
explain and apply to factual situations the mens rea elements of secondary liability
explain and apply to factual situations the rules and principles governing withdrawal from secondary liability.
Criminal law Chapter 14 Parties to crime
14.1 The framework of secondary liability Section 8 of the Accessories and Abettors Act 1861 provides: Whosoever shall aid, abet, counsel or procure the commission of any indictable offence whether the same be an offence at common law or by virtue of any act passed or to be passed, shall be liable to be tried, indicted and punished as a principal offender.
It should be noted that this section does not create an offence of ‘being a secondary party’. It provides that a person who ‘aided, abetted, counselled or procured’ D1 to commit a particular offence is also guilty of that offence. Thus, if D2, with the appropriate mens rea and in the absence of any relevant defence, assists D1 to murder V then D2 will be convicted of murder and, like D1, will receive a mandatory life sentence.
Terminology In Bryce [2004] EWCA Crim 1231 Potter LJ stated: Persons who come within that statutory genus are variously designated ‘accomplices’, ‘accessories’ or ‘secondary parties’. It seems to us that, in one respect at least, the term ‘secondary parties’ is preferable because it emphasises that the secondary liability of an accomplice is derivative from the liability of the principal offender.
The modes of participation The Act describes four types of secondary participation – aid, abet, counsel and procure – and in Attorney General’s Reference (No. 1 of 1975) [1975] 2 All ER 684 Lord Widgery said that the words should be given their ordinary meaning. However, the former technical distinctions between the various categories of secondary parties are now redundant (see Howe [1987] AC 147). There is overlap between the terms and there are, in effect, three modes of secondary participation. These are:
encouraging the principal to commit the offence
assisting the principal to commit the offence, and
procuring the commission of the offence by the principal.
In Bryce it was also said that ‘as far as the charging of secondary parties is concerned, it is frequently advisable... to use the “catch-all” phrase “aid, abet, counsel or procure” because the shades of difference between them are far from clear.’
The commission of the principal offence Secondary liability is derivative and thus it only attaches when the principal offence has been committed.
Summary In English law a secondary party will attract liability for an offence which he has assisted or encouraged the principal offender to commit or which he has procured.
14.2 Actus reus The actus reus of secondary liability consists of an act (or possibly an omission) which aids, abets, counsels or procures the commission by the perpetrator of the principal offence.
Aid Any type of assistance given prior to or at the time of the commission of the offence will suffice. The ordinary meaning of the word does not import a requirement that the assistance was a sine qua non or ‘but for’ cause of the offence – if D2 helps D1 to carry out an offence, the fact that D1 would have committed the offence even without assistance does not preclude D2’s liability as a secondary party.
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Nor is it necessary that assistance was sought or that the principal offender was aware of the assistance. If D2, knowing that D1 is planning to shoot V, ensures, without D1’s knowledge, that his gun is in good working order, he assists him in carrying out the murder. However, there must be a connection between the assistance and the commission of the offence. It must have actually helped the principal offender in carrying out the offence and whether it did so is a question of fact for the jury.
Activity 14.1 Bryce [2004] EWCA Crim 1231 On the instructions of a major drug dealer, D2 had assisted D1, a hit man, to kill a rival dealer, M. D2 had transported D1 and a gun to a caravan near to M’s home so that D1 could wait for an opportunity to carry out the killing. D1 killed M more than 12 hours later. D2 appealed against his conviction of murder on the grounds that what he did was insufficient to amount to aiding and abetting the murder as it was too remote in time and place to the killing and was performed at a time when D1 had not yet formed the intent to commit any criminal offence. Did the Court of Appeal agree? No feedback provided.
Abet or counsel Abetting and counselling are similar terms. Both involve encouraging the commission of an offence. The encouragement must have come to the attention of the principal offender but, as with aiding, there is no requirement that the encouragement was a sine qua non of the offence. For example in Calhaem [1985] 2 All ER 266, D2 had paid D1 to murder V who had was having an affair with D2’s solicitor, with whom D2 was infatuated. D1, armed with a hammer, a knife, and a shotgun went to V’s house but gave evidence that by that point he had no intention of carrying out the plan. However, he claimed, V screamed, as a result of which he went ‘berserk’ and hit her several times with the hammer, killing her. D2 was convicted of murder as a secondary party and appealed, arguing that counselling required a substantial causal connection between the acts of a secondary party and the commission of the offence. Her appeal was dismissed. Parker LJ, delivering the judgment of the Court of Appeal, said: There is no implication in the word itself that there should be any causal connection between the counselling and the offence. It is true that… the actual offence must have been committed, and committed by the person counselled. To this extent there must clearly be, first, contact between the parties, and, second, a connection between the counselling and the murder. Equally, the act done must, we think, be done within the scope of the authority or advice, and not, for example, accidentally when the mind of the final murderer did not go with his actions.
See also Attorney General’s Reference (No. 1 of 1975); Attorney General v Able [1984] QB 795. In Giannetto [1997] 1 Cr App R 1 the Court of Appeal held that the fact that the principal had already decided to commit the offence would not relieve an alleged accomplice of liability. Any encouragement suffices.
Activity 14.2 Susan paid George to kill Peter. George had never met Peter and so Susan told him where Peter lived. On the way to Peter’s house George decided to stop to have a quick drink in a bar. He got into an argument with another customer. George pulled out a knife and killed the customer. Unbeknown to George the customer was Peter. George has been convicted of murder. Is Susan guilty of murder as a secondary party?
Criminal law Chapter 14 Parties to crime Procuring In Attorney General’s Reference (No. 1 of 1975) [1975] 2 All ER 684 it was said that: To procure means to produce by endeavour. You procure a thing by setting out to see that it happens and taking the appropriate steps to produce that happening.
D2 had secretly laced D1’s drink with alcohol. As a consequence when D1 drove home he committed an offence of driving with an excess of alcohol in his blood. It was held that D2 had procured the offence. For this form of secondary liability there is no requirement that the parties have communicated with each other. And it most relevant in cases where the offence committed is, like that in the Attorney General’s reference, one of strict liability – where D1 has unwittingly been caused to commit an offence as a result of the actions of D2. It may also apply to crimes requiring mens rea in situations where D2 has caused D1 to commit the actus reus of an offence but is not guilty as a principal due to a lack of mens rea, incapacity or the availability of a defence. For example, in Cogan and Leak [1975] the Court of Appeal held that a man could be convicted as an accomplice to rape even though the perpetrator was acquitted due to a lack of mens rea. And in DPP v K and B [1997] the Divisional Court held that a person could be convicted of rape as a procurer, despite the fact that the prosecution was unable to rebut the presumption – that applied at the time – that the alleged perpetrator, being under the age of 14, lacked capacity. In Bourne [1952] although the principal offender was excused of an offence on the grounds of duress, it was held that an offence had been committed in respect of which another party could be secondarily liable as a procurer.
Secondary liability and omissions D may incur secondary liability for a failure to act where either there is a recognised legal duty to act or where he has a right to control the actions of the principal.
Summary There are any number of ways in which a person may attract secondary liability for assisting or encouraging the perpetrator of an offence and it is not necessary to prove that the perpetrator would not have committed the offence but for the assistance or encouragement. Procuring an offence applies where D2 has caused D1 to commit an offence and this generally applies to crimes of strict liability or offences of mens rea where the ‘perpetrator’ either lacked mens rea or capacity or was excused liability.
14.3 Mens rea The mens rea for secondary liability consists of several elements quite distinct from the mens rea required for liability as a principal offender. Although there are various ways in which a person may be liable as a secondary party it was said in Rook [1993] 2 All ER 955 and accepted in Bryce [2004] that the mens rea requirements are the same in all cases of secondary liability. No distinction is drawn between cases where the assistance or encouragement is given at the time of the offence and those where the assistance or encouragement is given before it is committed. It follows that the same principles apply whether or not the secondary party is present or absent at the time the offence is committed and whether or not he is participating in a joint criminal enterprise with the principal and other secondary parties. The elements are as follows.
1. The act of assistance, encouragement or procuring was done intentionally and D2 knew it to be an act capable of assisting, encouraging or procuring the offence.
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D2 must intend to do the act of assistance or encouragement and he must intend that the act will assist or encourage D1. And so if D2 accidentally assists D1 to commit an offence he will not attract secondary liability. In Clarkson [1971] the accused was present along with a number of other men when a young woman was being raped in an army barracks. Some of those present actively assisted by helping to hold down the woman. There was, however, no evidence that Clarkson had helped to hold down the girl or had done any other acts of assistance or encouragement. He was convicted of aiding and abetting the rape but on appeal his conviction was quashed. The Courts Martial Appeal Court held that the trial judge’s direction had not made it clear that, in addition to actual encouragement, there must be an intention to encourage. Mere presence at the scene of a crime – even deliberate presence – is not enough to give rise to secondary liability. Neither was non-interference to prevent a crime. Megaw LJ, delivering the judgment of the Court of Appeal, quoted with approval the following passage from Coney [1882]: Encouragement does not of necessity amount to aiding and abetting, it may be intentional or unintentional, a man may unwittingly encourage another in fact by his presence, by misinterpreted words, or gestures, or by his silence, or non-interference, or he may encourage intentionally by expressions, gestures, or actions intended to signify approval. In the latter case he aids and abets, in the former he does not.
In Bryce the Court of Appeal held that D2 must intend to assist or encourage and an intention to hinder will negative this element of the mens rea. However, the necessary intent may be present even if that was not D2’s purpose or desire. By deliberately transporting X with his gun to the caravan and being aware that X might with the help he provided kill M, Bryce had intentionally put D1 in a position where he could carry out the offence and thus had intentionally assisted him whether or not he desired to provide assistance.
2. At the time of the act of assistance or encouragement or procuring D2 foresaw the commission of the offence by D1. a. A general principle Foresight is the basis of secondary liability. Thus, it is not necessary to prove that the secondary party intended the crime to be committed. In NCB v Gamble (1959) 42 Cr App R 240 Devlin J said: If one man deliberately sells to another a gun to be used for murdering a third, he may be indifferent whether the third man lives or dies and is interested only in the cash profit to be made out of the sale, but he can still be an aider and abettor.
In Lynch v DPP for Northern Ireland [1975] AC 653 D2 drove D1 to a garage where he knew that D1 intended to murder a policeman. Lord Morris of Borth-y-Gest said that the intentional driving of the car was enough to render D2 liable as a secondary party ‘even though he regretted the plan or indeed was horrified by it’ (see also Rook). Nor is it necessary that D2 knows that the crime will be committed; it is sufficient that he foresaw it as a ‘real or substantial risk’ or ‘real possibility’. As was pointed out in Bryce [2004] it would be inappropriate to require proof of knowledge of an offence which is yet to be committed. And thus, where, for example, D2 supplies a weapon or other equipment to D1 he will be guilty of aiding the commission of an offence in the course of which the weapon or equipment is used provided that at the time of supply he foresaw that that there was a real possibility it would be used for such a purpose. It is also not necessary that D2 had knowledge of the precise crime intended by D1. In Bainbridge [1960] 1 QB 129, D2 was convicted of being an accessory to an offence of breaking and entering. He had supplied D1 with oxygen cutting equipment which had been used to break into a branch of the Midland Bank in Stoke Newington, London. On
Criminal law Chapter 14 Parties to crime appeal it was contended that he should not have been convicted unless it was shown that when he bought the equipment he knew it was to be used for breaking into that bank. Lord Parker CJ ([1960] 1 QB 129 at 133, cf. [1959] 3 All ER 200 at 202), delivering the judgment of the Court of Criminal Appeal, said that it was unnecessary that ‘knowledge of the particular crime which was in fact committed should be shown to his knowledge to have been intended’. While recognising that it was not enough to show that a man knows that some illegal venture is intended, he approved of the direction given by Judge Aarvold who had told the jury that it must be proved that D2 knew the type of crime which D1 intended and was in fact committed. The principle in Bainbridge was reformulated by the House of Lords in DPP for Northern Ireland v Maxwell [1978] 3 All ER 1140, [1978] 1 WLR 1350. Maxwell was a member of a terrorist organisation in Northern Ireland. He was ordered to drive a vehicle to an inn. He knew that others who were following his car were armed and that they would make some terrorist attack, but he did not know whether the attack was to be by guns, bombs or incendiary devices. In fact the others planted a bomb. He was held to have been rightly convicted of doing an act with intent to cause an explosion likely to endanger life, contrary to s.3(a) of the Explosive Substances Act 1883, and of an offence of being in possession of a bomb with like intent under s.3(b). Lowry LCJ, whose judgment in the Northern Ireland Court of Criminal Appeal was upheld by the House of Lords, said (Maxwell [1978] 3 All ER 1140 at 1162; [1978] 1 WLR 1363 at 1374–1375): The situation has something in common with that of two persons who agree to rob a bank on the understanding, either express or implied from conduct (such as the carrying of a loaded gun by one person with the knowledge of the other), that violence may be resorted to. The accomplice knows, not that the principal will shoot the cashier, but that he may do so; and, if the principal does shoot him, the accomplice will be guilty of murder. A different case is where the accomplice has only offence A in contemplation and the principal commits offence B. Here the accomplice, although morally culpable (and perhaps guilty of conspiring to commit offence A), is not guilty of aiding and abetting offence B. The principle with which we are dealing does not seem to us to provide a warrant, on the basis of combating lawlessness generally, for convicting an alleged accomplice of any offence which, helped by his preliminary acts, a principal may commit. The relevant crime must be within the contemplation of the accomplice and only exceptionally would evidence be found to support the allegation that the accomplice had given the principal a completely blank cheque.
Lord Scarman expressed his approval of this approach and agreed with Viscount Dilhorne that liability of a secondary party should not depend on whether the offence committed was of the same type as that intended, but whether it was foreseen or contemplated. He stated: The principle thus formulated has great merit. It directs attention to the state of mind of the accused: not what he ought to have in contemplation, but what he did have. It avoids definition and classification, while ensuring that a man will not be convicted of aiding and abetting any offence his principal may commit, but only one which is within his contemplation. He may have in contemplation only one offence, or several; and the several which he contemplates he may see as alternatives. An accessory who leaves it to his principal to choose is liable, provided always the choice is made from the range of offences from which the accessory contemplates the choice will be made.
So the principle is that a secondary party will be liable for an offence which he foresaw or contemplated might be carried out by the perpetrator. As Smith and Hogan (Criminal law) note in their commentary on Maxwell:
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Activity 14.3 Read Wilson Chapter 19: Section 19.4 ‘The mental element’, Part B ‘Knowledge of circumstances’, and then consider the questions below. a. Donald supplied Matthew with a crowbar. He knew that he intended to use it to commit burglary but he did not know in respect of which premises. Matthew has used the crowbar to burgle 30 different houses. Is Donald liable for all the burglaries committed by Matthew? b. Sandra paid Chelsea to kill Veronica. Chelsea, intending to kill Veronica, fired a gun at her but missed and killed Laura who was standing nearby. Is Sandra guilty of murder as a secondary party? c. Would your answer to b differ if Chelsea had deliberately killed Sandra?
14.3.1 Liability for the unforeseen consequences of a joint enterprise Sometimes the parties have a plan, express or implied, to achieve a common purpose but the plan misfires. Perhaps the victim dies unexpectedly when only a beating was intended by the principal, perhaps the principal deliberately goes beyond what was agreed or alters the agreed method, e.g. he stabs rather than beats or shoots the intended victim. The basic principle is that a secondary party bears responsibility for any unexpected outcome of the joint enterprise if this arose from its execution. If it did not, because, say the principal deliberately deviated from the joint enterprise, he will not bear responsibility unless he contemplated such deviation by the principal although he may not have agreed to it. In Baldessare (1930) 144 LT 185 the accomplice of a joy rider was held jointly liable with his principal for manslaughter when the joyride ended in the death of a pedestrian. Liability hinged not upon the mere fact of complicity in the joyriding but a common purpose to engage in a particularly dangerous instance of it. The principal was driving without proper lights and at an excessive speed. The joint enterprise was, in other words, driving a car recklessly and at great speed. It followed that both were liable for the consequences. In R v Gnango [2011] UKSC 59 the Supreme Court made a comparable ruling that where two people engaged in a gun battle with the intent to kill the other (the dangerous joint enterprise) both were liable for murder where one of their number accidentally killed a passer-by who was caught in the cross fire. The murderous intention which each entertained towards the other transferred (under the principle of transferred malice) to the actus reus of the unlawful killing of the third party. It did not affect liability that the secondary party, although complicit in the joint enterprise, happened to be the intended victim. This is a strange decision since it could hardly be argued that they had a common purpose to shoot the other and be shot at. If not there was no joint enterprise for which G could take responsibility. He was the intended victim of, not the assister or, the principal’s murderous intentions. See the dissenting judgement of Lord Kerr on this. More broadly, where there is a joint enterprise a participant will bear responsibility for those consequences which he contemplates as a possibility. In Hyde and others (1991) 92 Cr App R 131 the three appellants had carried out a joint attack on the victim, who died from a kick to the head. It was not possible to say who had actually struck the fatal blow or blows. The judge directed the jury that if all three intended to do grievous bodily harm, then they were all guilty of murder. If they did not but one of them decided to do it, then if either of the others could be shown to have foreseen the real possibility that that might be the result of the fight which he was engaged in, then he too shared in the responsibility and was guilty of murder. All three were convicted of murder and appealed on the grounds that the judge had misdirected the jury. The Court of Appeal, dismissing the appeals, held that if D2 realises that D1 may kill or intentionally inflict serious injury, and continues to participate with D1 in the venture,
Criminal law Chapter 14 Parties to crime that will amount to a sufficient mental element for D2 to be guilty of murder if D1, with the requisite intent, kills in the course of the venture (see also Chan Wing-siu and others v R (1985) 80 Cr App R 117; Hui Chi-Ming (1992) 94 Cr App R 236). The principle in Hyde was approved and applied by the House of Lords in Powell and Daniels [1999] AC 1. Powell and Daniels went with X to the house of a drug dealer to buy some drugs. The drug dealer was shot. The prosecution was unable to prove which of the three men fired the gun but contended that, if the third man fired the gun, Powell and Daniels were guilty of murder because they knew that X was armed with a gun and realised that he might kill or cause grievous bodily harm. They were convicted of murder and appealed. The House of Lords dismissed their appeals, holding that it is sufficient to found a conviction for murder for a secondary party to have realised that in the course of the joint enterprise the perpetrator might kill with intent to do so or with intent to cause grievous bodily harm. Note that D2 must foresee that D1 will act with the requisite mens rea. Lord Hutton commented: Where two parties embark on a joint enterprise to commit a crime, and one party foresees that in the course of the enterprise the other party may carry out, with the requisite mens rea, an act constituting another crime, the former is liable for that crime if committed by the latter in the course of the enterprise.
In Rook [1993] 2 All ER 955 the Court of Appeal held that the principle in these cases applies generally – not only where the parties take part in a joint criminal enterprise but also where a secondary party lends assistance or encouragement before the commission of the crime (see also Attorney General’s reference (No. 3 of 2004) [2005] EWCA Crim 1882, para 27). In Reardon [1999] Crim LR 392, D1 had shot two men in a pub. Along with a number of others, D2 (the appellant) carried the unconscious and wounded men out to the pub’s garden. They returned to the pub while D1 stayed with the dying men. He then went back into the pub, told D2 that one of the men was still alive and asked him to lend him his knife. D2 did so. D1 then went outside and fatally stabbed both men. D2 was convicted of both murders and appealed. The Court of Appeal dismissed his appeal. Beldam LJ, delivering the judgment of the Court, said: It is quite clear that whichever of the deceased the principal stabbed first, the use of the knife for the purpose of killing the deceased was plainly contemplated, and must have been contemplated, by the appellant when he handed the knife over. Did he foresee at least the strong possibility that if the principal found that the other deceased was still breathing and alive, he might use the knife in the same way, and if he did so was that an act by the principal of a type which this appellant foresaw but did not necessarily intend? In our view it was an act of that type.
He concluded: In our view the jury, who had been properly directed, reached the only conclusion which they could – that the actions of Murray were within the scope of the appellant’s contemplation when he handed the knife over, and the fact that Murray used the knife in the foreseen manner twice as opposed to once is, in our view, immaterial. His action in stabbing the second of the victims was an action of the very type that the appellant actually contemplated Murray would use the knife for.
See also Badza (Starfield) [2009] EWCA Crim 2695 and Lewis (Rhys Thomas) [2010] EWCA Crim 496 b. The level of foresight required In Powell and Daniels; English Lord Hutton stated: The secondary party is subject to criminal liability if he contemplated the act causing the death as a possible incident of the joint venture, unless the risk was so remote that the jury take the view that the secondary party genuinely dismissed it as altogether negligible.
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In Miah (Aziz) [2009] EWCA Crim 2368 it was held that D2 need not foresee the precise events which unfolded. D2 was liable for the murder of V by D1 on the basis that he had foreseen the infliction of grievous bodily harm by weapons although he had not foreseen the precise manner in which the weapons came to hand. The fatal injury had been inflicted using a knife which had originally come into the possession of the victim as he was pursued through a restaurant kitchen. c . Foresight of an act of the type committed by D1 As we saw, from Reardon, to be guilty under the Hyde principle ‘the secondary party must foresee an act of the type which the principal party committed’ (see also Chan Wing-siu v R [1984] 3 All ER 877; Powell and Daniels; English [1991]). In cases involving homicide the use by D1 of a weapon is a significant factor in deciding whether the fatal acts were of a different type. If the character of the weapon used by the perpetrator was different from any weapon used or contemplated by the other parties – most importantly if it had a greater ‘lethal propensity’ – the others attract no responsibility for the death unless it is proved that they knew or foresaw the likelihood of the use of such a weapon (Uddin [1998]; English [1997] 4 All ER 545; Anderson; Morris [1966]). In English the purpose of the joint enterprise in which he and another man, Weddle, took part was to attack and cause injury with wooden posts to a police officer, Sergeant Forth. In the course of the attack Weddle produced a knife with which he stabbed Sergeant Forth to death. The trial judge directed the jury that English was guilty of murder if he had foreseen that Weddle would act with intent to cause grievous bodily harm, even though he had not foreseen the use of the knife. English was convicted of murder. His appeal to the Court of Appeal was dismissed and he appealed to the House of Lords. The question certified for the opinion of the House was as follows: Is it sufficient for murder that the secondary party intends or foresees that the primary party would or may act with intent to cause grievous bodily harm, if the lethal act carried out by the primary party is fundamentally different from the acts foreseen or intended by the secondary party?
The appellant submitted that to be guilty under the principle stated in Hyde the secondary party must foresee an act of the type which the principal party committed, and that in the present case the use of a knife was fundamentally different to the use of a wooden post. The House of Lords allowed the appeal. On the evidence, the jury could have found that English did not know that Weddle had a knife. The fact that both D1 and D2 had the intention to inflict serious harm on the victim was insufficient to make D2 responsible for the death of the victim caused by the use of a lethal weapon used by D1 with the same or shared intention. In Greatrex [1999] 1 Cr App R 126 the appellant was one of a group of youths involved in an attack on a victim who died as a result of a blow from a bar or spanner. He admitted kicking the deceased, but the fatal blow was administered by another youth, Bates. Greatrex appealed against his conviction of murder. The trial judge had ruled that participation and joint attack with a shared intent to cause serious physical harm sufficed to render Greatrex and the others guilty of murder. The Court of Appeal held that the judge should have directed the jury to consider whether Greatrex foresaw as a possibility the use by Bates of the bar or an equally dangerous weapon. Lord Justice Beldam stated:
Criminal law Chapter 14 Parties to crime In deciding whether the actions of one participant are so fundamentally different the jury will have regard to all the circumstances and of course where one participant unknown to the others is carrying a lethal weapon such as a knife or revolver and uses it in a way which indicates that his actions go entirely beyond actions which were foreseen by the others, that is cogent evidence that what was done was substantially different from actions within the common purpose.
The jury might have concluded that the shod foot was equally dangerous in the sense of being capable of inflicting really serious injury but as they had not been directed to consider that the appeal was allowed. This ‘fundamentally different act’ rule is justified on the basis that an intention to cause GBH does not necessarily entail an intention to cause injuries which are life-threatening. There are degrees of GBH. But there is no justification for the rule where D2 foresaw that D1 might intentionally kill and D1 did so. In such a case D2 is party to the killing and will be guilty of murder. It is immaterial whether the means adopted by D1 were different from those contemplated by D2. As David Ormerod observed in his commentary on R v Powell and R v English: [I]f B intends or foresees that A may act with intent to kill, it seems immaterial that he does it by one means rather than another. Unlike GBH, there are no degrees of death.
This view was accepted by the House of Lords in Rahman [2008] UKHL 45 in which Lord Rodgers stated: If D1 and D2 agree to kill V by beating him to death with baseball bats, but, in the course of the attack, D1 pulls out a gun and shoots V, B2 must still be guilty of murder.
d. Whether the act is fundamentally different is a question of fact for the jury In O’Flaherty Mantell LJ noted: The statements in Powell and English and Uddin about types of weapons should not be seen as reflecting principles of law as opposed to questions of evidence. The Judicial Studies Board specimen direction in relation to the scenario in English treats the question whether use of a knife is fundamentally different from any act which the defendant realised the principal might do as a question of fact for the jury. The principles set out in Uddin are not stated to be principles of law as opposed to matters of evidence, and it would be unfortunate if they crystallised as such. The result would be the creation of a complex body of doctrine as to whether one weapon (for instance a knife) differs in character from another (for example a claw hammer) and which weapons are more likely to inflict fatal injury.
And in Mendez [2010] EWCA Crim 516 the Court of Appeal pointed out that in cases of spontaneous violence it is unlikely that the parties thought carefully about the exact level of violence intended or foreseen. Toulson LJ stated: In a case of spontaneous or semi-spontaneous group violence... it is highly unlikely that the participants will have thought carefully about the exact level of violence and associated injury which they intend to cause or foresee may be caused. All that a jury can in most cases be expected to do is form a broad brush judgment about the sort of level of violence and associated risk of injury which they can safely conclude that the defendant must have intended or foreseen. They then have to consider as a matter of common sense whether P’s unforeseen act (if such it was) was of a nature likely to be altogether more life-threatening than acts of the nature which D foresaw or intended. It is a question of degree, but juries are used to dealing with questions of degree. In Stringer [2011] EWCA Crim 1396 convictions for murder as secondary participants were upheld in relation to two defendants who, together with the principal offender, had chased a man before he was fatally stabbed by the principal offender. Their conduct in chasing the victim amounted to conduct assisting and encouraging the principal offender, they knew the principal offender had a knife and would have foreseen its possible use to kill or cause serious injury.
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e. D2 is not a party to killing if the acts of D1 are fundamentally different from those foreseen If the jury conclude that the death of the victim was caused by the actions of one participant which can be said to be of a completely different type to those contemplated by the others, they are not to be regarded as parties to the death and are therefore neither guilty of murder nor manslaughter. They may nevertheless be guilty of offences of wounding or inflicting grievous bodily harm with intent which they individually commit (Uddin [1998]). In Anderson and Morris [1966] 2 All ER 644, D1 (Anderson) killed V with a knife. The defence of D2 (Morris) was that even though he took part in a joint attack with Anderson to beat up the victim, he did not know that Anderson was armed with a knife. In his summing up, the trial judge told the jury that they could convict Morris of manslaughter even though he had no idea that Anderson had armed himself with a knife. The Court of Appeal held that this was a misdirection in respect of Morris and quashed his conviction for manslaughter. Lord Parker CJ, delivering the judgment of the Court of Appeal, said: It seems to this court that to say that adventurers are guilty of manslaughter when one of them has departed completely from the concerted action of the common design and has suddenly formed an intent to kill and has used a weapon and acted in a way which no party to that common design could suspect is something which would revolt the conscience of people today.
f. Where D1 performs an act foreseen by D2 but with a more serious intent Where the principal carries out the very act contemplated by the secondary party but with a more serious intent it was held in Gilmour [2000] 2 Cr App R 407 that the secondary party is liable for the consequence to the extent of his own mens rea. D2 drove three men to a housing estate, knowing that a petrol bomb was to be thrown at a property. Three children died as a result of carbon monoxide poisoning from the resulting fire. D2 submitted that it had been his belief that the petrol bomb had been intended to frighten the occupants of the house and that accordingly he had been unaware that the actual intention of those throwing the petrol bomb had been to kill or cause grievous bodily harm. The Court of Appeal of Northern Ireland held that he was guilty of manslaughter. Sir Robert Carswell CJ recognised that although there may be circumstances where the principal’s intent might alter the nature of the act committed, the ‘basic principle’ was accurately expressed in the following hypothetical example, discussed in Blackstone’s Criminal Practice (2000) para A5.5 at p.75: Suppose P and A agree that P will post a specific incendiary device to V, A contemplating only superficial injuries to V when he opens it but P foreseeing and hoping that the injuries will be serious or fatal. If V is killed as a result, P will clearly be guilty of murder, A is clearly not guilty of murder as an accessory but should be guilty of manslaughter because the act done by P is precisely what was envisaged. The fact that P happens also to have the mens rea of murder is irrelevant because it does not change the nature of the act that he does or the manner in which he does it.
In Roberts, Day and Day [2001] EWCA Crim 1594 the Court of Appeal considered a situation where the participants in a joint enterprise all foresaw the same kind of physical violence being inflicted on their victim but differed in their intent. Two of them intended to inflict really serious injury by means of such violence. The third – Marc Day – intended or foresaw only that some harm might be done. One of the two who intended to do grievous bodily harm punched and kicked the victim, who fell, suffered a brain haemorrhage and died. He was, of course, guilty of murder. So also was the secondary party who, like him, intended or contemplated the infliction of the serious injury. But what of the third participant, Marc Day?
Criminal law Chapter 14 Parties to crime Laws LJ, delivering the judgment of the court, stated: [Counsel for the appellant] submits he must escape altogether because he did not foresee a murderous state of mind would be harboured by his fellows... It does not seem to us that that can be right. In such a case there was a joint enterprise at least to inflict some harm, and that is not negated by the larger intentions of the other two adventurers. In our judgment in such a case there is no reason why the participants should not be convicted and sentenced appropriately as their several states of mind dictate. That was what was done here. Marc Day’s conviction is perfectly safe. His appeal... is dismissed.
The issue was considered again in Attorney General’s Reference (No. 3 of 2004) [2005] EWCA Crim 1882. D2 sent two men to apply pressure to V. D2 knew that the men were armed with a gun and was aware that they might fire the gun to frighten V. It was assumed that D2 had not foreseen the possibility that V might be killed or injured. He had contemplated the deliberate discharge of the firearm but not at V. One of the men fatally shot V in the head at point blank range and was convicted of murder. The question arose as to whether on the assumed facts D2 was guilty of manslaughter. It was held that he was not guilty. The Attorney General referred the following question to the court: Where a secondary party to a joint enterprise contemplates that the carrying out of the joint enterprise will involve the commission of an act intended to frighten the victim (for example by the discharge of a firearm) and the principal carries out the act with an intention to kill or cause serious bodily harm thus causing the death of the victim, does the variation in the intent of the participants at the time the act is done preclude the act from being part of the joint enterprise or may a jury nevertheless convict the secondary party of manslaughter?
The Court of Appeal held that the principal’s act in firing the gun so as to kill V was of a fundamentally different character to any act contemplated by D2. D2 had foreseen the deliberate discharge of a loaded gun but the act which caused the death was the deliberate discharge of a loaded gun deliberately pointed at V. That was fundamentally different from what D2 had foreseen. The court distinguished Roberts, Day and Day on the basis that in that case the act was not fundamentally different from what Day had foreseen. The participants all foresaw the same kind of violence being inflicted on their victim, punching with the possibility of kicking to follow. In Rahman D2 submitted that the jury should be entitled to take the intent of D1 into account when deciding whether his act was fundamentally different from that foreseen by D2. The House rejected the submission. In Carpenter the Court of Appeal upheld the conviction for manslaughter, of a woman who foresaw the use of a knife to cause harm but not that it would be used with the intention to kill or cause serious injury. Although what the defendant did was fundamentally different to what was contemplated, thus ruling out a murder conviction, it was not an all or nothing decision. Manslaughter remained available on the basis of a joint enterprise involving contemplated violence.
Self-reflection Do you agree that the act of D1 in Attorney General’s Reference (No. 3 of 2004) was fundamentally different from the act foreseen by D2? Do you agree with the decision of the House in Rahman that stabbing a person and intending to kill is not a fundamentally different act from stabbing a person intending to cause grievous bodily harm? g. Liability for unforeseen consequences Where D2 is liable for the acts done by D1 his liability extends to unusual or unforeseen consequences of D1’s acts. And so if, for example, D2 encourages D1 to cause grievous bodily harm to V and V dies as a result, both will be guilty of murder (Anderson; Morris [1966]):
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University of London International Programmes … where two persons embark on a joint enterprise, each is liable for the acts done in pursuance of that joint enterprise, that that includes liability for unusual consequences if they arise from the execution of the agreed joint enterprise but (and this is the crux of the matter) that if one of the adventurers goes beyond what has been tacitly agreed as part of the common enterprise, his co-adventurer is not liable for the consequences of that unauthorised act...
h. The secondary party may be liable for a more serious offence than the perpetrator There are circumstances where a secondary party is guilty of a more serious offence than the perpetrator. For example, if D2 assists or encourages D1, who suffers from an abnormality of mind, to kill V, D1’s liability will be reduced to manslaughter on grounds of diminished responsibility, but D1 will be guilty of murder (see s.2(4) of the Homicide Act 1957). And in Howe [1987] AC 417 the House of Lords considered the following hypothetical situation: D2 hands a gun to D1 informing him that it is loaded with blank ammunition only and telling him to go and scare V by discharging it. The ammunition is in fact live, as D2 knows, and V is killed. D1 is guilty only of manslaughter. What is the extent of D2’s liability?
Lord Mackay, agreeing with the judgment of Lord Lane in the Court of Appeal that the previous decision of Richards [1974] QB 776 was wrongly decided, stated that: It would seem absurd that [D2] should thereby escape conviction for murder... [W]here a person has been killed and that result is the result intended by [D2], the mere fact that [D1] may be convicted only of the reduced charge of manslaughter for some reason special to himself does not, in my opinion in any way, result in a compulsory reduction for [D2].
In addition, the doctrine of transferred malice applies in cases of secondary liability as it does generally. Thus, if D2 encourages D1 to fatally shoot V and D1 misses V and inadvertently kills X, D2 and D1 will both be guilty of the murder of X. It would be different if D1 deliberately killed X. Unless D2 foresaw that D1 might do so, he is not guilty of murder (Reardon).
Summary The mens rea of secondary liability requires proof that D2 intentionally did an act which assisted, encouraged or procured the commission of the offence and he realised that it was capable of assisting, encouraging or procuring the offence. In addition it must be proved that at the time of the act of assistance or encouragement or procuring D2 contemplated or foresaw the commission of the offence by D1. It is not however necessary to prove that D2 intended the offence to be committed, foresight will suffice.
14.4 Withdrawal A person can escape secondary liability for an offence by withdrawal before the offence is committed or has reached the stage of an attempt (Grundy [1977] Crim L Rev 543) although his acts before withdrawing may render him liable for other offences. 1.
In considering whether a person had withdrawn, there must usually be some act and not merely a mere mental change of intention. It is not necessary that steps were taken to prevent the crime but D2 must do enough to demonstrate that he or she is withdrawing from the joint enterprise. This is ultimately a question of fact and degree for the jury. Account will be taken of inter alia the nature of the assistance and encouragement already given as well as the nature of the action said to constitute withdrawal. (See O’Flaherty [2004] EWCA Crim 526.)
2. There must be communication of withdrawal to the principal offender unless it is not practicable or reasonable to communicate it. If it was not practicable to communicate withdrawal a party to an attack might withdraw simply by walking away and ceasing to participate. (See Mitchell and King (1998); Rafferty [2007] EWCA Crim 1846.)
Criminal law Chapter 14 Parties to crime 3. D2 will be liable for those acts (and their consequences) which were carried out before withdrawal. (Rafferty; see also Campbell [2009] EWCA Crim 50.)
Sample examination question Mal’s mother was dying from cancer and this had made him extremely depressed as he could not bear to watch her suffer. He asked Sol, a pharmacist, for some arsenic, explaining that he intended to use it to kill his mother. Sol agreed to supply the arsenic but supplied him with a non-lethal chemical instead. Sol had never intended to supply Mal with arsenic. Mal put the substance in his mother’s hot milk which she drank every night before going to sleep. However, on this particular night she fell asleep without drinking it but died of a brain haemorrhage during the night. Consider the criminal liability, if any, of Mal and Sol.
Advice on answering the question The inchoate offences element of this question was considered in Chapter 13. Mal has attempted to murder his mother. You should now consider whether Sol might be guilty of aiding and abetting Sol’s attempt. Section 8 of the Accessories and Abettors Act 1861 provides that a person who aids, abets, counsels or procures the commission of an indictable offence is liable to be tried, indicted and punished for that offence as a principal offender. You should note that a person can be convicted as a secondary party to an attempt (Dunnington [1984]). In Bryce [2004] the Court of Appeal held that secondary liability requires proof of: d. an act done by D2 which in fact assisted the later commission of the offence e. that D2 did the act deliberately, realising that it was capable of assisting the offence f.
that D2 at the time of doing the act contemplated the commission of the offence by D1, i.e. he foresaw it as a ‘real or substantial risk’ or ‘real possibility’ and
g. that D2 when doing the act intended to assist D1 in what he was doing. It is not necessary to prove that the secondary party intended that the crime be committed (NCB v Gamble [1959]). However, it was pointed out in Bryce that if D2’s intention is to hinder the carrying out of the offence then there can be no liability as a secondary party. In the instant problem, although Sol intentionally assisted the attempt to kill he did not intentionally assist Mal to kill his mother. In fact by intentionally supplying a substance which he knew was not lethal he knew that Mal’s attempt would fail. Mal, as we have seen, is guilty of attempted murder despite the fact that it was impossible to commit murder. Is Sol liable as a secondary party to the attempt which he knew to be impossible? Although he intentionally assisted the attempt he intentionally hindered the carrying out of the full offence of murder. Surely this is sufficient to absolve him of secondary liability in respect of the attempt.
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Reflect and review In this chapter we considered the issue of accomplice liability. Look through the points listed below: Are you ready to move on to the next chapter? Ready to move on = I am satisfied that I have sufficient understanding of the principles outlined in this chapter to enable me to go on to the next chapter. Need to revise first = There are one or two areas I am unsure about and need to revise before I go on to the next chapter. Need to study again = I found many or all of the principles outlined in this chapter very difficult and need to go over them again before I move on. Tick a box for each topic. Ready to move on
Need to revise first
Need to study again
I can understand and apply to factual situations the actus reus elements of secondary liability including the meaning of: aid, abet, counsel, procure.
I can understand and apply to factual situations the mens rea elements of secondary liability.
I can understand and apply to factual situations the rules and principles governing withdrawal from secondary liability.
If you ticked ‘need to revise first’, which sections of the chapter are you going to revise? Must revise
Revision done
14.1
The framework of secondary liability
14.2
Actus reus
14.3
Mens rea
14.4
Withdrawal
Before you continue to the next topic listen again to audio presentation 15 to recap and consolidate what you have learnt.
15 Offences against property 1: theft and fraud
Contents Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218 15.1
Theft . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219
15.2
Fraud . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 227 Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . 238
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Introduction This chapter examines offences relating to the unlawful acquisition or attempted acquisition of property or services. All of the offences involve dishonesty on the part of the perpetrator, which is the ‘blame’ element to these offences that differentiates them from unlawful acquisitions of property under civil (or non-criminal) law, such as breach of contract. Some of the offences also involve an element of deception in which property or services are acquired consensually but through some form of misrepresentation on the part of the defendant. All of the offences are codified in the Theft Acts 1968 and 1978 and Fraud Act 2006. The Fraud Act 2006 updates or replaces the sections of the Theft Act 1968 which dealt with deception. The relevant case law has provided further guidance on the interpretation of terms used in the Theft Acts.
Essential reading and listening
Wilson, Chapter 14: ‘Theft’, Chapter 15: ‘Fraud and making off without payment’ and Chapter 16: ‘Other property offences’.
Audio presentation 16.
Law Commission Report No. 276 Fraud Cm 5560 (London, TSO, 2002) http://lawcommission.justice.gov.uk/docs/lc276_Fraud.pdf
Ormerod, D. (2007) ‘The Fraud Act 2006 – Criminalising lying?’ Criminal Law Review 193–219. This article is available on the Online Library.
Ormerod, D. and H. Williams, (2007) ‘The Fraud Act 2006’ Archbold News 6. This article is available on the Online Library.
Learning outcomes By the end of this chapter and the relevant readings you should be able to:
understand the concept of ‘dishonesty’ in relation to offences against property in the Theft Acts 1968 and 1978 and the Fraud Act 2006
outline the property offence of theft and identify the actus reus and mens rea elements of this offence
explain what is meant by ‘fraud’ in the Fraud Act 2006
outline the fraud offences of:
fraud by false representation
fraud by failing to disclose information
fraud by abuse of position
obtaining services dishonestly
making off without payment
identify the actus reus and mens rea elements of each offence
apply the legal requirements for each offence to given factual scenarios.
Criminal law Chapter 15 Offences against property 1: theft and fraud
15.1 Theft Essential reading
Wilson, Chapter 14: ‘Theft’.
15.1.1 Actus reus The most important offence under the Theft Act 1968 is theft itself, which is defined in s.1: A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it.
This basic definition contains the five key elements of both the actus reus and the mens rea of the offence. Sections 2 to 6 of the Theft Act 1968 offer some, limited, further guidance on the meaning of each element. In order to establish liability for the offence, all five elements must be proved. This is important. The courts have devoted a great deal of attention to each of these elements, and appropriation in particular. Students of criminal law often become confused by this and either believe that appropriation is an offence in itself, or believe that once appropriation has been proved, then the actus reus of theft is complete. This is not the case. Imagine that you have never seen an elephant before but you have read that an elephant is a large grey creature with four legs, large ears, tusks and a trunk. If you go to a zoo and see a creature with four legs and large ears, you have not necessarily seen an elephant. You have seen a creature which matches only part of the description of an elephant. You can only be sure that you have seen an elephant if the creature before you has all five of the characteristics of an elephant (grey, four legs, large ears, tusks and a trunk). Apply the same reasoning to the offence of theft. You have not necessarily identified criminal liability for theft unless all five constituent parts of the offence are proven. We will now discuss each element, and the courts’ interpretation of them, in turn, starting with the actus reus elements: appropriation, property and belonging to another.
Appropriation This has been the most controversial element of the offence of theft. Section 3 attempts to provide a definition of the word ‘appropriation’, by stating that it is: Any assumption by a person of the rights of the owner… and this includes where he has come by the property (innocently or not) without stealing it, any later assumption of a right to it by keeping it or dealing with it as owner.
You can already see that appropriation means far more than simply ‘taking’ something! Physically taking something, such as taking a wallet out of someone’s pocket, would clearly amount to an appropriation. However, other less obvious forms of acquiring property may also suffice. The second part of the definition, for example, deals with a situation where there is no initial dishonesty when the property was acquired but the later decision to assume the rights of the owner is dishonest.
Activity 15.1 You lend me your copy of Wilson so that I can revise for my criminal law exam. After the exam, I sell the book to another student. Have I appropriated your book for the purposes of the offence of theft? Two major issues have arisen in relation to appropriation: is it the assumption of all or any of the rights of the owner? Section 3 is ambiguous in this respect as it simply states that appropriation is an assumption of ‘the rights of an owner’. The House of Lords clarified this issue in Morris [1983] 3 All ER 292.
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Activity 15.2 Read the case of Morris and answer the following questions. a. What were the material facts of this case? b. Which ‘rights of the owner’ had Morris allegedly assumed? c. Did these amount to all or just some of the owner’s rights? d. Was Morris convicted? e. Therefore, did the decision of the House of Lords confirm that appropriation had to involve assumption of all or any of the owner’s rights? The House of Lords later confirmed this part of the Morris decision in Gomez [1993]. Can an appropriation take place with the consent of the owner? This issue was also discussed in the case of Morris. Morris switched labels on goods in a supermarket. He had no authorisation by the supermarket to do this. Lord Roskill in Morris stated that an appropriation was an ‘adverse usurpation of the rights of an owner’, suggesting that an appropriation must take place without the consent of the owner. This conflicted with an earlier case, Lawrence [1972] 2 All ER 1253, although Lord Roskill’s comments on the consent issue were obiter as Morris’s acts were plainly unauthorised and there was no need for the court to decide whether they would have been unlawful had they been authorised. In Lawrence, however, this was a more important issue. In that case a taxi driver (D) gave a lift to an Italian student (V) who did not speak English very well. V offered D his open wallet so that D could take the right amount of money for the fare. The actual fare was 50p but D took £6 from the wallet. Regardless of D’s dishonesty, the money was offered to D with V’s consent. Could this amount to an appropriation? The House of Lords declared that V’s consent, whilst relevant to the issue of dishonesty, was not relevant in determining whether an appropriation had taken place. In 1993 the House of Lords was confronted again with this issue. The previous decisions of Morris and Lawrence appeared to conflict and this case offered an opportunity to clarify and restate the correct position on consensual appropriation.
Activity 15.3 Read the judgment of Lord Keith in Gomez [1993] AC 442 and answer the following questions. a. What were the material facts in this case? b. With what offence was Gomez charged? c. Did the owner of the property that was appropriated consent to the appropriation? d. Was Gomez convicted? e. Did the House of Lords say that there had been an appropriation? f.
What did the House of Lords say about the earlier cases of Morris and Lawrence?
The effect of the judgment in Gomez is significant as it has substantially widened the meaning of ‘appropriation’ within the definition of theft. Appropriation now bears such a wide meaning, rendering this aspect of the actus reus relatively easy to prove, that we must now rely on the mens rea of dishonesty to limit criminal liability to acts that are ‘blameworthy’ or manifestly wrong.
Activity 15.4 Consider whether an appropriation has taken place in the following scenarios. a. In a self-service supermarket D takes a loaf of bread off the shelf and places it in his shopping trolley. b. V drops her purse in the street. D picks it up and hands it back to her.
Criminal law Chapter 15 Offences against property 1: theft and fraud c. D takes a leaflet, advertising a forthcoming production, from the foyer of his local theatre.
Activity 15.5 D advertises for sale in his local newspaper the furniture in his mother’s house. His mother knows nothing of the advertisement. Has D appropriated the furniture? Would your answer differ if D’s advertisement offered the Crown Jewels for sale? Gomez should really have been charged with obtaining property by deception under s.15 of the Theft Act 1968 since he had deceived the shop manager into parting with the goods. Offences involving ‘obtaining by deception’ are, by definition, committed with the consent of the owner although that consent has been given under the deception. The result of Gomez being convicted of theft on these facts means that the offences of theft and obtaining property by deception overlap considerably. The concept of appropriation was widened further by the case of Hinks [2000] 4 All ER 833. In this case, D befriended V, an elderly man of limited intelligence. Over a period of time V, accompanied by D, withdrew substantial sums of money from his bank account and gave them to D. D was charged with theft but claimed that the sums of money had been gifts and that V had voluntarily relinquished his rights to them. The House of Lords held that, after Gomez, V’s consent to the appropriation was irrelevant and therefore the receipt of the money could amount to an appropriation. Provided D was dishonest, this could also amount to a theft. (D was convicted so presumably the jury had decided that she was dishonest.) In this case there was no deception, the property was freely given as a gift and D acquired an indefeasible right to the property (that is, the transaction was valid under civil law, unlike in Gomez where the contract of sale would have been voidable in contract law because of misrepresentation). This case serves to demonstrate that appropriation is now virtually meaningless as the consent of the owner is irrelevant and the manner by which the property is appropriated is irrelevant (in Hinks the appropriation was essentially committed by omission, by failure to return the money to V).
Activity 15.6 Read the judgments of Lord Hobhouse and Lord Hutton in Hinks. Both of these judges dissented from the majority decision. Using their judgments compile a list of arguments as to why the decision in Hinks should be reversed. No feedback provided.
Activity 15.7 Read Wheatley v Commissioner of Police for the British Virgin Islands [2006] UKPC 24. 1. What were the material facts of this case? 2. In what significant way were the facts of this case different to those of Hinks? Why did the Privy Council apply Hinks in this case? 3. Using the arguments put forward by the defence counsel in Wheatley, draft a dissenting judgment in which you argue that Hinks should be distinguished and the convictions for theft should be quashed.
Property The question of what constitutes property is important in relation to both theft and many other property offences such as obtaining property by deception and robbery. It is important that we can state authoritatively what can be stolen and what cannot. Section 4(1) of the Theft Act 1968 sets out a definition in the following terms. ‘Property’ includes money and all other property, real or personal, including things in action and other intangible property.
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This is so wide that it does not appear very helpful. It does, however, tell us that property does not have to have physical form in order to be stolen, although it must be capable of appropriation. Intangible property may include the following.
A thing in action,† such as a debt. A debt can be stolen from the person to whom it is owed (though sadly not from the person in debt!).
A credit balance in a bank account can also be stolen – this is not money nor is it tangible but it can be appropriated through a transfer of funds between accounts. A bank balance is, in fact, a thing in action, as it is a debt owed by the bank to the account holder.
A cheque is tangible property in the sense that it is a piece of paper; but in its tangible form it is not worth very much. Its real value is intangible as it creates a thing in action – the right of the payee to the sum specified on the cheque (which the bank then owes to the payee).
Land, again, is tangible in the sense that has a physical existence, but it is unlikely to be stolen in its tangible form. A person’s rights over land are more valuable and these are intangible. Section 4(2) expressly states that land is not property for the purposes of the offence of theft. This general rule is, however, subject to the exceptions set out in s.4(2). Rights over land may be stolen by a trustee (for example by selling it in a way not authorised by the trust agreement) – s.4(2)(a). The tangible parts of land (such as topsoil or sand) can be stolen by someone ‘not in possession’ – that is someone other than an owner, tenant or trustee – s.4(2)(b). Finally, a tenant cannot steal the property he leases but he can steal fixtures which form part of that property, such as fixed cupboards, shelves or appliances (s.4(2)(c)).
†
A thing in action. This originated in the French phrase ‘Chose (meaning a ‘thing’) en action’. You may sometimes see it referred to as a ‘chose in action’.
As the Theft Act was drafted in 1968 it is silent on the issue of other forms of intangible property, such as electronic data or information, which may now pose problems in the light of technological advances. Information cannot constitute property, even though it may have considerable commercial or other value. In Oxford v Moss (1978) 68 Cr App R 183 a student who illicitly read an examination paper but returned the paper to its rightful place was held not to be guilty of theft of the information on the paper. Section 4(3) deals with wild flowers, mushrooms, fruit and foliage, which cannot be stolen by picking unless they are picked for commercial purposes or for sale. Section 4(4) suggests that wild animals are property but cannot be stolen unless they have been kept in captivity (for example in a zoo). Wild animals can be ‘poached’, but this offence exists separately from the offence of theft and is dealt with in legislation such as the Salmon Act 1986, the Night Poaching Act 1828 and the Deer Act 1991. Neither can an animal carcass be stolen unless it has been ‘reduced into possession’. This would suggest that if D traps a wild rabbit this would not constitute theft, but once trapped the dead animal may be stolen from D by another.
Activity 15.8 Which of the following may constitute property for the purposes of theft? Property? a.
A £10 note
b.
A cheque to the value of £10
c.
A bank balance of £10
d.
Air
e.
Gas
f.
Electricity
g.
A human skeleton belonging to a medical student (see Kelly [1998] 3 All ER 741)
h.
A pheasant shot on Lord Snooty’s estate
i.
V’s pet cat, Fluffy
Yes
No
Criminal law Chapter 15 Offences against property 1: theft and fraud Belonging to another Generally speaking, when property is dishonestly appropriated it must belong to another in order for that appropriation to amount to theft. In many cases this is straightforward and self-evident. If D takes a wallet from V’s pocket, at the time of the appropriation it belongs to another. However, this does not necessarily depend on who ‘owns’ the property and it may, in a number of situations, be possible to steal property from someone who does not own it. Section 5(1) gives a general definition of ‘belonging to another’ which goes beyond ownership: Property shall be regarded as belonging to any person having possession or control of it, or having in it any proprietary right or interest (not being an equitable interest arising only from an agreement to transfer or grant an interest).
This definition hinges upon ‘possession or control’ as well as legal ownership. The breadth of this definition has some unusual results.
Property may belong to more than one person at a time. If D goes into a supermarket and takes a loaf of bread from the shelves and places it in his shopping trolley, at that point the loaf of bread belongs to both the supermarket (the legal owner of it) as well as D (who has possession and control of it).
Property can belong to you even though you don’t know that it exists. In Woodman [1974] 2 All ER 955, a company, ECC, owned a disused factory. They sold a quantity of scrap metal to another company who collected most though not all of it. D entered the property and took some of the remaining scrap metal. D was convicted of theft because the scrap metal was in the possession and control of ECC even though they did not know that it existed and even though they had sold it to another.
It is also possible to steal something that you own! In Turner (No. 2) [1971] 2 All ER 441 D had left his car for repair in a garage. D secretly removed the car from the garage, intending to avoid paying the bill for the repairs. D was convicted of theft as the garage had possession and control of the car at the time that D appropriated it. However, in Meredith [1973] Crim LR 253, D left his car parked illegally in a street while he attended a football match. The police removed the car to a police station. After the match, D went to the police station and drove the car away without the permission of the police. D was charged with theft, but was acquitted. The essential difference between these two cases is that in Turner (No. 2) the garage had an equitable interest in the car called a ‘lien’ which entitled them to hold on to the car until their bill had been paid. The police in Meredith did not have a lien over the car and were not entitled to withhold possession of the car from D. D’s taking of it could not therefore amount to theft. (The police could, of course, have fined D for illegal parking and failure to pay that fine would have resulted in a prosecution, but they had no rights over the car.) This suggests that in Turner (No. 2) the theft charge arose because the garage had a proprietary interest in the car.
Subsections 5(2)–(5) expand the definition of belonging to another further by detailing situations where property may ‘belong to another’ even where that person does not have possession or control of it or any proprietary interest in it.
Activity 15.9 Read s.5(2)–(5) and consider the following scenarios. a. After a hard week’s work you collect your wages in a sealed envelope. At home, when you open the envelope, you discover that the envelope contains £50 too much. Does the £50 belong to you? b. D decides to organise a trip to London for his friends. Six of his friends each give him a cheque for £50 which he pays into his bank account. Before their trip to London, D’s telephone bill arrives and he uses all the money in his account to pay the bill, so that he is unable to pay for the trip to London. Has D stolen the money given to him by his friends? c. Martin, an investment banker, received money from his clients ‘to be invested as the bank sees fit’. Martin in fact used the money to fund his extravagant lifestyle. Has Martin committed theft?
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15.1.2 Mens rea There are two mens rea elements to the offence of theft. The first, dishonesty, is important because it is not only a mens rea requirement for all offences under the Theft Acts 1968 and 1978, but it also, in relation to theft, provides one of the few limitations on liability for the acquisition of property which has been innocently come by. We say above that both appropriation and the notion of ‘belonging to another’ are very wide concepts. In many cases the only thing that distinguishes a legitimate transfer of property from one which breaches the criminal law is the presence of dishonesty. In addition to dishonesty, liability for theft cannot be found unless D also intends to permanently deprive the owner of the property.
Dishonesty Guidance on dishonesty is given in s.2 of the Theft Act 1968. However, this section does not provide a definition of dishonesty. It offers, instead, a number of situations in which D would not be regarded as dishonest. For a definition of dishonesty we need to look to common law. Section 2 provides examples of appropriations that should not be regarded as dishonest. This section therefore can only apply to Theft Act offences which involve an appropriation (that is, to theft itself and robbery, but not to deception offences or burglary or blackmail). In approaching a question on theft or robbery, however, you should start with s.2. If one of the situations in s.2 applies, D will not be regarded as dishonest and there is no need to consider the common law definition of dishonesty. If s.2 does not apply, or if you are answering a question involving a different offence, go straight to the common law definition. The situations in which D would not be regarded as dishonest under s.2 are:
if he appropriates the property in the belief that he has in law the right to deprive the other of it, on behalf of himself or a third party
if he appropriates the property in the belief that he would have the other’s consent if the other knew of the appropriation and the circumstances of it
if he appropriates the property in the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps.
Section 2(2) expressly precludes a defendant from claiming to be honest simply on the grounds that he or she was willing to pay for the property. Any of the beliefs listed above will prevent liability for theft or robbery provided they are honestly held by D. The belief does not have to be reasonable. The belief may indeed be wholly unreasonable, but the more extraordinary or unreasonable the belief, the more likely the jury are to decide that the belief is not honestly held! For example, if I find a driving licence lying in the street and decide to keep it, I may, in my defence to a charge of theft, argue that I was not dishonest because I believed that I would not reasonably be able to find the owner of it. Given that driving licences have the owner’s name and address on them, this would be an unreasonable belief and the jury may find that I cannot possibly have honestly believed that in those circumstances. If they did believe that I honestly thought that then I would be acquitted. If the facts of any case do not fit within s.2, it is necessary to assess D’s dishonesty according to the common law test set out in R v Ghosh [1982] 2 All ER 689. The Court of Appeal in this case set out a two-part test, which contains both subjective and objective elements. The problem in approaching a test for dishonesty is that whether someone’s behaviour is to be regarded as dishonest or not will depend upon an individual’s moral standards. The question confronting the Court of Appeal in Ghosh was whose standards should be applied: those of the defendant or those of the reasonable person (or the jury)? In developing the test, the Court of Appeal considered conflicting authorities on this question.
Criminal law Chapter 15 Offences against property 1: theft and fraud
Activity 15.10 Read the judgment of Lane LJ in Ghosh. In his judgment Lord Lane discusses the cases of Landy [1981] 1 all ER 1172 and Feely [1973] 1 All ER 341. a. What test for dishonesty did the court use in Landy? Was this a subjective or objective test? Why did Lord Lane consider this test unsatisfactory? b. What test for dishonesty did the court use in Feely? Was this a subjective or objective test? Why did Lord Lane consider this test unsatisfactory? Lord Lane’s alternative approach was to combine subjective and objective elements in a two-part test: 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.
The first part of the test is entirely objective – the conduct is judged by the standards of the ordinary reasonable person. If the conduct is objectively dishonest then the second part of the test, which is both subjective and objective, must be applied. Did D himself realise that his conduct was dishonest by the standards of the ordinary reasonable person?
Activity 15.11 To help you to understand this test, try applying it to the two examples that Lord Lane gave in his judgment. a. D comes from a country where public transport is free. On his first day in England he travels on a bus. He gets off without paying. He never had any intention of paying. Is D dishonest according to the Ghosh test? b. Robin Hood intentionally fails to pay his taxes in order to donate the money to a charity for the homeless. Is Robin dishonest according to the Ghosh test? Now try these examples. c. Dave lives near to Ian, who has a conviction for possession of child pornography. One day Dave notices that Ian’s car is unlocked, and that there is a valuable camera lying on the front seat. Dave removes the camera from the car, but is seen by a police officer, who arrests him. Dave says: ‘I was only taking the camera to stop him taking any more of his filthy pictures. Anyone would want to do the same.’ Is Dave dishonest? d. Jane takes some paper and coloured pens from the stationery cupboard at work to give to her small children to draw pictures with. When caught by her boss she tells him that everyone takes things from the stationery cupboard as they consider it to be a ‘perk’ of the job. Is Jane dishonest?
Intention to permanently deprive The second part of the mens rea for theft is an intention to permanently deprive the owner of the property. Intention is presumed to bear the same meaning as for other criminal offences (and so direct or oblique intent would suffice – see Chapter 5). Section 6 of the Theft Act 1968 gives further explanation of this phrase, although it is a rather complex explanation that may not be very helpful: A person appropriating property belonging to another without meaning the other to permanently lose the thing itself is nevertheless to be regarded as having the intention of permanently depriving the other of it if it is his intention to treat the thing as his own to dispose of regardless of the other’s rights; and a borrowing or lending of it may amount to so treating it, if the borrowing or lending is for a period and in circumstances making it equivalent to an outright taking.
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Not surprisingly the courts have had to interpret what is meant by this section! The section deals with situations where D may claim that he did intend, eventually, to return the property to the owner. However, the Act states that this may amount to a permanent deprivation if D’s intention is to treat the thing as his own to dispose of regardless of the other’s rights, or the borrowing is for an extended period of time and/or if the property, when returned, is worthless. The cases provide examples of borrowings that amount to an ‘outright taking’. First, what does it mean to ‘treat the thing as his own to dispose of’? In Lavender [1994] Crim LR 297, D took two doors from a council property and used them to replace damaged doors at another council property. Charged with theft, D argued that he had never intended to deprive the council of the doors. However, the Divisional Court decided that the words ‘to dispose of’ should not be interpreted literally as meaning to sell or throw away. D in this case had treated the doors as his own regardless of the council’s right not to have them taken away from where D found them. He was therefore convicted of the theft of the doors. In Fernandes [1996] Crim LR 753 it was held that s.6 may ‘apply to a person in possession or control of another’s property who, dishonestly and for his own purpose, deals with that property in such a manner that he knows he is risking its loss’.
Activity 15.12 Read the case of Marshall [1998] 2 Cr App R 282 and answer the following questions. a. What were the material facts in this case? b. Was the property that was allegedly stolen returned to the owner? c. What ‘rights’ had D disregarded in treating the property as his own? d. Had D ‘disposed of’ the property according to s.6? Borrowing may also be equivalent to an outright taking where the borrowing was extended for a period of time or was returned as worthless. The courts initially interpreted this part of s.6 narrowly and in Lloyd [1985] 2 All ER 661 the Court of Appeal held that s.6 should only be referred to in exceptional circumstances. In that case D, a film projectionist, borrowed films from a cinema to copy them (in breach of copyright) but then returned them to the cinema in time for them to be shown. This was held not to amount to theft as an intention to borrow was not sufficient for s.6 unless the intention was to return the thing in such a state that ‘all its goodness or virtue has gone’. In this case all the goodness had not gone out of the films – they could still be projected to paying audiences.
Activity 15.13 D is in the supermarket with his friend V. At the checkout he realises that he has left his wallet at home and asks V to lend him a £10 note. V does so and D hands the note to the cashier. The next day, D gives V a £10 note that he has just withdrawn from the bank. Did D have an intention to permanently deprive V of the £10 note?
Summary The most important offence under the Theft Act 1968 is theft itself, which is defined in s.1. Each actus reus and mens rea element is defined or explained in ss.2–6. The actus reus elements of appropriation and belonging to another have been interpreted widely by the courts so that not only does the offence of theft overlap with the offence of obtaining by deception (since consent is irrelevant to an appropriation) but also the actus reus of theft is very easily proved without any manifest criminality. The only limit to liability for this offence therefore lies in the mens rea elements of dishonesty and intention to permanently deprive.
Criminal law Chapter 15 Offences against property 1: theft and fraud
Self-assessment questions 1. What is the actus reus of theft? 2. What is excluded from the definition of property for the purposes of theft? 3. Write, in no more than 30 words, an explanation of the meaning of the word ‘appropriation’. 4. List the ways in which property may be said to ‘belong to another’. 5. What is the common law test of dishonesty? 6. In what way can D be said to have intended to permanently deprive V of property by borrowing it?
Useful further reading
Glazebrook, P. (1991) ‘Thief or swindler: who cares?’ Cambridge Law Journal 389.
Glazebrook, P. (1993) ‘Revising the Theft Acts’ Cambridge Law Journal 191.
Smith, A.T.H. (2001) ‘Theft or sharp practice: who cares now?’ Cambridge Law Journal 21.
Spencer, J. (1982) ‘Dishonesty: what the jury thinks the defendant thought the jury would have thought’ Cambridge Law Journal 222.
Reminder of learning outcomes By this stage you should be able to:
understand the concept of ‘dishonesty’ in relation to offences against property in the Theft Acts 1968 and 1978
outline the offence of theft, and identify the actus reus and mens rea elements of this offence
apply the legal requirements for each offence to given factual scenarios.
15.2 Fraud Essential reading
Wilson, Chapter 15: ‘Fraud and making off without payment’.
15.2.1 The law reform process In 2002 the Law Commission published a report reviewing the existing law on deception offences contained in the Theft Acts 1968 and 1978. The report criticised the state of the existing law and proposed a new piece of legislation and a draft Bill which would overhaul and redefine these types of property offences. Parliament acted upon this report and passed the Fraud Act 2006 which is now the current law on deception offences. You do not need to know the old law on deception, but outlining the previous offences may help you understand the law reform process. The Theft Act 1968 originally contained two offences which both centred on obtaining something by deception – that is, obtaining property by deception (s.15) and obtaining a pecuniary advantage by deception (s.16). In 1978, when a new Theft Act was passed, two further offences were added: obtaining services by deception (s.1), and evading liability by deception (s.2). Finally, in 1996 the Theft (Amendment) Act inserted s.15A into the Theft Act 1968 which created a new offence called obtaining a money transfer by deception. This offence was created as a response to the difficulties that the courts had had in deciding which offence covered the dishonest obtaining of an electronic mortgage advance by deception which was neither a service nor property belonging to another and consequently fell within a loophole in the law (see R v Preddy [1996] 3 All ER 481).
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All of these offences required that the defendant made a false representation, obtained something by that false representation (i.e. there had to be a causal link between the deception and the obtaining) and the defendant had to be found to be dishonest. The common elements were less problematic (indeed some of them have been retained in the new law) but the real problem (for both the courts and law students) was identifying from a maze of provisions what exactly had been obtained, whether the deception caused the obtaining and how the offences applied to different scenarios. The new law seeks to make this process simpler by creating a single offence of fraud which can be committed in three different ways. Before examining this new offence you need to be aware of problems which the Law Commission identified with the old law. This will enable to you to assess the new law and think about how far those problems are (or are not) alleviated by the newly drafted offence.
Activity 15.14 Read the Law Commission Report No. 276 Fraud.† This is a long report so concentrate on Parts III, V, VII and VIII, which review the old law. Summarise in your own words the key problems with the legal concept of ‘deception’ under the old law.
15.2.2 The fraud offences Section 1 of the Fraud Act 2006 sets out a broad outline of the structure of the new offence. We will examine the details of each element of the offence and the different ways in which it can be committed in later sections. First, you need to be clear about the three ways in which the single offence of fraud can be committed, listed in s.1(2):
fraud by false representation (s.2 of the Fraud Act 2006)
fraud by failing to disclose information (s.3 of the Fraud Act 2006)
fraud by abuse of position (s.4 of the Fraud Act 2006).
In addition to these offences you will also need to understand two other related offences.
obtaining services dishonestly (s.11 of the Fraud Act 2006) – this is not strictly a fraud offence since it does not involve any form of false representation or deception. This offence effectively replaces the old offence of ‘obtaining services by deception’
making off without payment (s.3 of the Theft Act 1978) – this offence is an anomaly as it does not require any deception but is usually discussed alongside the deception offences. Unlike the other deception offences it was not repealed by the Fraud Act 2006 and remains in force.
15.2.3 Fraud by false representation Section 2 of the Fraud Act 2006 creates a new, broad offence of fraud by false representation. This is designed to be a general offence, thus negating the need to identify precisely what is obtained and how it is obtained (common problems with the old law). The essence of the new offence is that the defendant makes a false representation. That false representation may be express or implied, as to fact or law or as to the state of mind of the defendant or another. In addition to this there are mens rea requirements that the defendant knows that the representation is or might be false, intends to cause loss to another or make a gain and is dishonest. We will examine each element in turn. The false representation type of fraud in criminal law is similar to the concept of misrepresentation in contract law, in that it involves a false representation – that is a representation that something is true, when it in fact is false. However, the criminal law goes further as s.2(2) states specifically that a representation is deemed to be ‘false’ if it is: ‘untrue or misleading’. The truth or otherwise of a representation may
†
Available online from http:// lawcommission.justice.gov. uk/docs/lc276_Fraud.pdf
Criminal law Chapter 15 Offences against property 1: theft and fraud be a straightforward question of fact for the jury. However, when is a representation misleading for the purposes of criminal law? Misleading statements may be partially true but subject to misinterpretation by the victim. The explanatory notes on the Act suggest that a misleading statement is one that is ‘less than wholly true and capable of an interpretation to the detriment of the victim’. Far from clarifying the law, this aspect of s.2 is vague and the parameters of falsehood are unclear here.
Activity 15.15 Mary, aged 75, asks Harry, a local builder, for an estimate to decorate a room in her flat. Harry provides a written estimate which sets out the cost of the paint to complete the job at £300, the cost of three days’ labour charges at £100 per day and a further charge of £100 for ‘professional cleaning’ after the job is finished. The estimate is provided on headed business paper, which states ‘Harry Jones, Building Contractor, in business for 25 years’. Harry is entitled to a discount on the paint at the wholesalers and it only costs him £200. Harry finishes the job after 2 days, and uses Mary’s own vacuum cleaner to clean up the dust. This is Harry’s first job in his new business venture, having been made redundant from the firm he previously worked for. Has Harry made any false representations under s.2 of the Fraud Act 2006?
False representation as to fact or law or state of mind The false (or misleading) representation may be as to fact or as to law or as to the defendant’s or any other person’s state of mind. The following examples illustrate the difference between these types of representation.
D, who is 17, says, ‘I am 18 years old.’ Deception as to fact.
D then says to a bartender, ‘The law permits you to sell alcohol to a 17-year-old.’ Deception as to law.
D enters a restaurant and orders a meal. In fact, D has no money and no credit card with which to pay for the meal. Deception as to D’s state of mind: D is representing to the waiter, by his conduct, that he intends to pay for the meal.
False representation may be express or implied This requirement can be taken as meaning that the false representation may be made by words (that is, expressly), or by words or by omission (that is, by implication). The most obvious form of false representation will be one made expressly by words, for example by D saying something false or untrue. However, implied representations may be more subtle. D may, by his behaviour, imply something which the victim assumes to be true but which is, in fact, false. By saying nothing, if the defendant allows the victim to believe the falsehood, this amounts to an implied false representation (assuming, of course, D has the requisite mens rea which will be discussed below). Implied false representations were eventually confirmed as deception under the old law and some of the cases which discuss the old law provide examples of how false representations can be made by conduct or silence.
Activity 15.16 Read the following cases and assess what false representations were made in each case (use the Online Library to find these cases): a. DPP v Ray [1973] 3 All ER 131 b. Charles [1977] AC 177 c. Gilmartin (1983) 76 Cr App R 238 d. Lambie [1982] AC 449.
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False representation using a system or device In order for the new law to keep up with new electronic media often used to commit fraud, s.2(5) specifically includes within the offence false representations made using ‘any system or device designed to receive, convey or respond to communications (with or without human intervention)’. This is a much clearer way of criminalising wholly electronic frauds, which the old legislation struggled to deal with (see Preddy (1996)). Under the old legislation, partly because the deception had to be ‘operative’, it was held that it was impossible to deceive a machine – see Re Holmes [2004] Crim LR 229. The new Act has reversed that position. The following are some examples of how fraud may be committed by effectively deceiving a machine.
D uses some foreign coins in a vending machine to obtain a bar of chocolate.
D dishonestly uses his mother’s credit card to buy a CD in a shop and enters her CHIP and PIN number in the machine.
D buys a car insurance policy on the internet and enters his age as 35 on the form, when in fact D is 19.
D sends an email to V claiming to be a member of staff at V’s bank, asking V to confirm her name, address and credit card PIN number for a security check.
Causation A major change in the new law on fraud is the abandonment of the requirement that any false representation made by D is ‘operative’ on the victim, or that it causes V to part with their property, services etc. Whilst D must intend to make a gain for himself or another or cause the victim a loss, this is a mens rea requirement (which will be discussed below). In terms of the actus reus of the offence, D does not actually have to cause any loss or make any gain. The intent to do so will suffice. Further, whether or not V loses or D gains, there is no requirement that the gain or loss is in any way linked to the false representation. In effect fraud has become a ‘conduct crime’ and has ceased to be a ‘result crime’ because the actus reus now consists entirely of the conduct of making the false representation and there is no need to prove any particular consequence (or result) of the conduct.
Activity 15.17 D creates a website on which he advertises for sale signed photographs of Jonny Brown, a famous movie actor. He also claims that all the proceeds of any sales of these photographs will be donated to charity. In fact D downloaded the photographs from the internet and signed them himself, but he does intend to donate the proceeds of the sales to charity. Which of the following would amount to a false representation for the purposes of s.2 of the Fraud Act 2006? a. Carol reads the website and, being an avid fan of Jonny Brown, wants his autograph and buys a photograph. b. Emma reads the website but knows that Jonny Brown is a renowned as a recluse and never signs autographs. Nevertheless she finds him attractive and decides to buy a photograph anyway. c. Flora reads the website and does not know who Jonny Brown is. However, she is a firm supporter of the charity that D intends to donate the proceeds to so she buys a photograph as a way of making a donation to the charity. As there is no requirement that any victim of the fraud is actually deceived, or actually loses thereby, David Ormerod (2007, p.196) claims that the new Fraud Act 2006 has created a ‘wholly inchoate offence [which] appears to criminalise lying’. Indeed, under the old law, a defendant who made a false representation but who clearly did not induce V to part with their property (or services, etc.) as a result of the deception, may have been liable for an attempted deception, but not the full offence. Under the new law, once a false representation is made and communicated, the offence is complete
Criminal law Chapter 15 Offences against property 1: theft and fraud and there can be no attempted fraud. In his sense David Ormerod may be right in criticising the Act for creating what appears to be an ‘inchoate offence’.
Mens rea It can be seen from the above section that the actus reus of the offence in s.2 is very wide and in parts ambiguous. It is therefore imperative that the mens rea requirements are rather more strict in order to protect defendants from unjust or unnecessary criminalisation. Section 2 contains three mens rea requirements. They are:
that D knows that his representation is or might be false or misleading
that D intends to make a gain for himself or another or intends to cause loss to V
that D is acting dishonestly.
All three of these mental elements must be established before the offence is complete. We will examine each in turn.
D knows that his representation is or might be false or misleading This requirement essentially replaces the requirement under the old law that a deception be deliberate (i.e. intentional) or reckless. The mens rea of the new offence covers both deliberate deceptions, where D knows that his representation is false, and ‘careless’ deceptions, where D is aware of a risk that his representation might be untrue. There may be some difficulty, however, in proving that D knew, or was aware of a risk that, his representation may be misleading since this may require that D was aware of the state of mind of any recipient of the representation. In the examples in activity 16.17 above this may be difficult to establish. In reality, this aspect of the mens rea may overlap with the question of whether D was dishonest, which involves asking a different but related question about whether D was aware that his actions may have been dishonest in the minds of others.
D intends to make a gain or cause a loss This mens rea element is rather more strict and clear. There is no recklessness here, D must intend a particular consequence to result from his false representation. Note however that this consequence does not need to occur. Intention bears its normal meaning in criminal law, that is D’s purpose was to gain or cause loss or he foresaw such gain or loss as a virtually certain consequence of his actions, in which case the jury are entitled to find intent (Woollin). D must intend that the gain or loss is actually caused by his false representation, even though the gain or loss may never happen. Section 5 of the Fraud Act 2006 gives further guidance on the types of gain and loss which the Act is intended to cover. Notice that gain and loss are defined for these purposes entirely in terms of money or other property. This definition accords with the definition of property in s.34(2) Theft Act 1968 which applies to other property offences such as theft itself and blackmail. Section 34(2) expressly excludes land as a form of property which can apply to this offence. Non-pecuniary gain, such as sexual pleasure or loss, such as damaging V’s reputation, will not suffice. So if D makes a false representation, for example, intending to embarrass V or with intent to make V late for dinner, then no offence is made out. An intent to obtain a service is dealt with exclusively under s.11 of the Fraud Act 2006 and is not covered by s.2. A further parallel with s.34(2) Theft Act 1968 is the notion that D may gain for himself or another. Section 5 of the Fraud Act 2006 further explains that gain may include keeping what one has as well as getting what one does not have and loss includes inducing V to not get what they might get as well as parting with what they do have. In other words gain and loss may be potential or real.
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D is acting dishonestly The final mens rea element is that D must be found to be dishonest. For these purposes dishonesty bears the same meaning as for theft and you should refer back to section 15.1.2 of this chapter. However, s.2 of the Theft Act 1968 does not apply to the deception offences and the meaning of dishonesty must be assessed using the test set out in Ghosh. Dishonesty is a core and important mens rea in all of the new fraud offences. Given the width of the actus reus elements of the offence, many cases are likely to hinge on the assessment by a jury of this element. However, in relation to s.2 it is particularly problematic and the jury may not deliberate long over this question. Indeed the question is rather circular. Making a false representation may by definition be dishonest, since it involves lying, or, in common parlance, ‘being dishonest’. There may be unusual circumstances where D can convince a jury that lying would not be considered to be dishonest by the standards of the ordinary reasonable person, but these are likely to be rare.
15.2.4 Fraud by failure to disclose information This offence, created by s.3 of the Fraud Act 2006 is rather less controversial and problematic than the s.2 offence. Under this offence D has committed an offence if he dishonestly fails to disclose information which he is under a legal duty to disclose, with intent to gain for himself or another or cause loss to another. There is a degree of overlap between this offence and that under s.2. Since false representations may be implied and made by silence or omission, then presumably failure to disclose information can be viewed as a false representation. However, s.3 is narrower than s.2, because s.3 only applies where there is a legal duty to disclose the information.
Legal duty to disclose There is no definition of a legal duty under s.3 and therefore a question arises as to where a legal duty may arise. The Law Commission themselves, in proposing the offence, provided some elucidation on where they envisaged such a duty would arise: such a duty may derive from statute…from the fact that the transaction in question is one of the utmost good faith (such as a contract of insurance), from the express or implied terms of a contract, from the custom of a particular trade or market, or from the existence of a fiduciary relationship between the parties (such as those of an agent and principal) (Law Commission Report No. 276 (2002) para 7.28).
It can be presumed from this that a duty will arise under s.3 where there is a duty to disclose under civil law and in this way the criminal and the civil law are expected to coincide. The mens rea elements of this offence consist of dishonesty and intent to make a gain or to cause loss. These elements bear the same meaning as that applied to the s.2 offence and are discussed above.
15.2.5 Fraud by abuse of position Section 4 creates a new offence of fraud by abuse of position. D commits this offence if he occupies a position in which he is expected to safeguard, or not to act against, the financial interests of another person, and dishonestly abuses that position, intending to make a gain for himself or another or to cause loss to another. This is a very vague offence with a potentially wide application. The mens rea elements are dishonesty and intent to make a gain or cause a loss and these bear the same meaning as applied to the s.2 offence. The crucial actus reus elements are that D occupies a relevant position and that he abuses that position. These elements require some further discussion.
Position to safeguard, or not to act against, the financial interests of another A precise definition of this phrase cannot be found in the Fraud Act 2006 itself – which remains deliberately open and non-prescriptive about the types of relationships or
Criminal law Chapter 15 Offences against property 1: theft and fraud positions that the offence may cover. Again, the Law Commission’s report may offer some guidance: The necessary relationship will be present between trustee and beneficiary, director and company, professional person and client, agent and principal, employee and employer, or between partners. It may arise otherwise, for example, within a family, or in the context of voluntary work, or in any context where the parties are not at arm’s length.
Whilst this guidance offers some concrete examples, the scope of this provision remains wide. Quite what is meant by ‘not at arm’s length’ is very unclear.
Activity 15.18 Which of these scenarios could give rise to liability under s.4 of the Fraud Act 2006? a. Bruno, a member of cabin crew for EasyAir Ltd, sells passengers sandwiches that he made at home, pocketing the proceeds. He allows the passengers to believe that the sandwiches are made by EasyAir catering staff. b. For a joke, James advises his neighbour, Len, that a horse running in the 2.30 race at Camptown Park racecourse that afternoon is a ‘dead cert’ to win at good odds. James knows that the horse has come last in the last three races that it has run. Len places a bet on the horse but it falls at the first fence. c. Doris works as a volunteer in a local charity shop. Someone has donated an old pair of shoes to the shop. She likes the shoes so much that she does not put them on sale, but instead wears them home. d. Harriet’s father died recently and her uncle George is administering her father’s will. Harriet has been left £100,000 to pay for her university education when she reaches the age of 18. However, George believes that Harriet will be more committed to her studies if she has to work for a scholarship to go to university, so he hands the £100,000 to a charity on her behalf.
Abuse Once it is established that D is in a relevant position of trust, the jury must then be satisfied that D did an act or committed an omission (s.4(2)) which abused that position. Again this term is undefined in the Act and is left deliberately vague and wide to cover all manner of potential circumstances. D must in some way act (or fail to act where he is under a duty to do so through his position) in a way which threatens the financial interests of the other party in the relationship. Note that D need not necessarily intend that the loss be suffered by that other party. He may intend to cause a loss to another party, or for another to make a gain through his acts.
15.2.6 Obtaining services dishonestly This offence, contained in s.11 of the Act, replaces the old offence of obtaining services by deception. The rewriting of this offence was aimed at updating the law so that it covered wholly automated or electronic services. D commits this offence if he dishonestly obtains a service for himself or another and that service has been, is being or will be paid for, but the defendant does not pay for it, either in part or in full. In other words free services are not covered by the offence. The mens rea requirements are that D obtains these services by dishonesty (so a causal link must be established between the obtaining of services and D’s dishonesty) and D knows that the services are not meant to be free. Although the services would ordinarily be paid for, what D (or another) obtains through his dishonesty is the service itself and not the monetary value of the service. This offence may be confused with a s.2 offence (making a gain through a false representation). However, under this offence D obtains the benefit of the service for free (or a reduced price), but he does not obtain the money that the service is worth. If, for example, D obtains the provision of hotel accommodation dishonestly, he has dishonestly induced the hotel into allowing him to stay there, he has not gained the cost of the hotel accommodation.
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Note that there does not need to be any false representation on the part of the defendant in order to commit this offence. Any form of dishonesty will suffice. Dishonesty bears the same meaning as that applied to s.2.
15.2.7 Making off without payment This offence is set out in s.3 of the Theft Act 1978. This offence does not require a deception, but was created to close a loophole in the law discovered in DPP v Ray [1973]. The offence is defined as: A person who, knowing that payment on the spot for any goods supplied or service done is required or expected of him, dishonestly makes off without having paid as required or expected and with intent to avoid payment of the amount due shall be guilty of an offence. D must ‘make off’† although Brooks and Brooks (1982) 76 Cr App R 66 makes it clear that this need not be done by stealth. These words should bear their ordinary meaning – that is some form of departure from the spot where payment is required or expected. In this case D boldly stood up and walked out of a restaurant without paying. Payment must be required or expected ‘on the spot’. First, there is no need to identify a precise ‘spot’ where payment is required. In Aziz [1993] Crim LR 708, D asked a taxi driver to take him to a club 13 miles away. On arrival at the club D refused to pay the driver, so the driver drove to the nearest police station. On arrival at the police station D ran out of the taxi but was caught. D claimed he had not made off from the ‘spot’ where payment was required as that ‘spot’ was the final destination of the journey. The court rejected this argument and held that in this case the ‘spot’ where payment was required was while D was sitting in the taxi, at any destination where payment was requested. It is the ‘spot’ at which payment is requested, such as within a restaurant (as opposed to sitting at the table) for example. Second, payment ‘on the spot’ may not be required or expected where D has made an arrangement to pay later, even though payment would usually be required on the spot. In Vincent [2001] 2 Cr App R 150, D stayed in a hotel but on leaving agreed with the manager that, as he was expecting to be paid some money in the near future, he could pay his bill at a later date. Although guests would normally be expected to pay ‘on the spot’ there was no such requirement in this case as D had agreed not to with the manager. D must intend to avoid payment. In Allen [1985] it was affirmed that this means D must have an intention never to pay, rather than an intention to pay later.
Summary This section has outlined the various deception offences under the Theft Acts 1968 and 1978. Each offence is distinguished by what D obtains through each offence. However, for each offence D must practise a deception which is operative on V and which induces V to confer onto D whatever is obtained. Anything obtained by D under one of these offences must be obtained dishonestly. Making off without payment must also be committed dishonestly but does not require the practice of a deception.
Self-assessment questions Examine the criminal liability under the Fraud Act 2006, if any, arising in the following scenarios. 1. David, a solicitor, writes a letter to a client stating that the client owes him £500 for legal work completed by him. In fact, the legal work was carried out by David’s unqualified assistant Ewan. 2. Jenny, aged 10, has been very naughty. To teach her a lesson, her mother takes £10 out of her moneybox and spends it on a bottle of wine for herself. Jenny had been using the moneybox to save the money given to her by her grandparents for her birthday. 3. Henry discovers that, despite having cancelled his contract for satellite TV with Celestial TV Ltd, his decoder still receives a number of satellite channels. He continues to watch these channels for a month until the decoder ceases to receive them.
†
To ‘make off’ means to leave a place, when one is expected to stay.
Criminal law Chapter 15 Offences against property 1: theft and fraud 4. At the end of an exam, Samantha is caught leaving the room with a blank answer booklet. When challenged by the invigilator, Samantha tells the invigilator that she has been given special permission by her tutor to keep the answer booklet as a souvenir. Samantha has not been given this permission. 5. Robert tells his neighbour, Jim, that he has lost his wallet and needs to get to the station urgently to catch a train. Jim takes pity on him and gives him a lift. Would your answer differ if Jim happened to be a taxi driver? 6. Gareth applies on the Internet for a quote for home insurance. In response to a question on the form which asks whether he smokes, Gareth clicks on the box marked ‘no’. In fact he smokes the occasional cigar.
Sample examination questions Question 1 Professor Bedlam is a visiting fellow at Bigton University. On his way over to the library one day, he spots an umbrella lying on the pavement, and as rain is forecast later that day, he thinks it might be useful so he picks it up. Inside the library, he notices on the desk beside him a draft of a paper that another eminent professor is planning to publish. The paper contains a number of innovative arguments so Professor Bedlam takes digital photographs of a few pages of it using his mobile phone, hoping to use these arguments in his latest book. He then goes to select a book from the shelves, but sees that a student has got there first and is reading the book that he wants. He demands that the student hand the book over immediately as he should have priority over her, but she refuses. He then threatens her, in a loud voice, that if she does not hand the book over he will report her to the librarian for misconduct, and snatches the book out of her hand. At his home university all professors are entitled to borrow reference books from the library, so he leaves the library with the book in his briefcase. At the end of the academic year, when he leaves Bigton to return home, he leaves the library book in his office, hoping that his secretary will return it. Discuss the criminal liability, if any, of the parties involved. Question 2 Examine the criminal liability under the Fraud Act 2006, if any, arising in the following scenarios. Juliet is an estate agent. While showing her first client of the day, Alan, around a house he is interested in buying, she tells him that the neighbours are ‘nice and quiet’. She does not know whether this is in fact the case but wants to ensure a quick sale. In fact, one neighbour is well known in the neighbourhood for hosting frequent loud, late night parties. In any event, Alan decides the house is too small and so decides not to purchase it. On her way back to the office Juliet spots a newly opened hair salon. Unable to afford the very high prices, she tells the manager, Gavin, that she is a journalist for the local paper and would like a complementary haircut in order to review the new salon. Gavin does not believe she works for the paper but gives her the free haircut anyway because he finds her attractive. Once back at the office Juliet reads her email and finds one from a friend who is looking for a three-bedroomed garden flat in a particular neighbourhood. Juliet’s firm have on their books a flat which exactly matches her friend’s requirements, but she knows that it is also on the market with another estate agent who charges less commission than Juliet’s firm. She therefore replies to her friend’s email, giving the name and telephone number of the manager of the other firm.
Advice on answering the questions Question 1 There are four events in this question which potentially give rise to criminal liability for theft. First, Prof Bedlam takes the umbrella. This may not look like a ‘theft’ but that is why it is of utmost importance to methodically run through each of the actus reus and mens rea elements. If all are satisfied then a charge of theft may be brought. So the first question to ask is has Prof Bedlam appropriated the umbrella within the meaning set out in s.3 Theft Act 1968? You can assume that an umbrella is property within the definition
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set out in s.4 TA 1968. Does the umbrella belong to another? Just because it is lost does not mean that it is ownerless – it still belongs to someone else even if we do not know who. As the actus reus is satisfied, you then need to examine both parts of the mens rea. Is Prof Bedlam dishonest? Always start with s.2 Theft Act 1968 – are any of the scenarios in s.2 relevant here? Prof Bedlam may argue that under s.2(1)(c) he is not dishonest as he honestly believes that the owner of the umbrella cannot be traced by taking reasonable steps. If that is so, then s.2 states that he is not dishonest and there is no need to apply Ghosh. Although the second part of the mens rea is satisfied (Prof Bedlam intends to permanently deprive the owner of the umbrella) as he is not dishonest, one of the five constituent parts of the offence is missing and therefore there is no liability. The second event involves copying his colleague’s paper. Again, run through all five elements of the offence of theft. Is this an appropriation? Is photographing the paper a right exclusive to the owner? It would appear so, but the issue which arises in this scenario is whether or not Prof Bedlam appropriates property. Note that Prof Bedlam does not appropriate the paper itself, but the information written on it. This is similar to the facts of Oxford v Moss [1979] Crim LR 119 in which it was held that information cannot amount to intangible property for the purposes of theft. As this actus reus element of the offence is not proven, then there can be no charge of theft. A good student would spot that if an actus reus element is missing from the offence then there may be an attempted offence (see Chapter 2). Prof Bedlam has done all that he can (i.e. something more than merely preparatory to the offence of theft) but the crime is impossible because the information cannot amount to property. However, after R v Shivpuri liability can be constructed for attempting an impossible offence. Thirdly, Prof Bedlam takes a book from a student in the library. Could this amount to theft? The book is property, taking it can amount to appropriation and the book belongs to another. It is important here to state that the book not only belongs to the University, but also, for the purposes of theft, it belongs to the student who has possession and control of it according to s. 5 Theft Act 1968. This will become important when you consider Prof Bedlam’s mens rea. First assess whether he is dishonest. Section 2 does not apply here so use the Ghosh test. Would ordinary decent people consider his actions to be dishonest by their own standards? If so, does Prof B realise that ordinary decent people would regard his actions as dishonest? Of course, this can only be answered by a jury. Assuming that he is dishonest you then have to consider whether he intends to permanently deprive someone of the book. He does not necessarily intend to permanently deprive the library of the book as he may intend to merely use it while he is there and leave it behind. However, this is where it is important to note that the book also belongs to the student. He does intend to permanently deprive the student of the book – he treats it as his own to dispose of regardless of the other’s rights and borrows it for a period of time in such circumstances that make it equivalent to an outright taking (s.6). Finally, Prof Bedlam takes the book out of the library. Again go through the five elements of theft. The issue which arises here is his dishonesty and his intention to permanently deprive the library of the book. First, dishonesty. The facts tell us that he is allowed to take books from his home library in this way, so he may argue that he honestly believes the owner would consent to the appropriation if the owner knew of it. Even if you apply Ghosh here (which is not strictly necessary) Prof Bedlam resembles the foreign tourist on a bus that Lord Lane uses as an example in his judgment in Ghosh. Although the ordinary decent man might consider his actions to be dishonest, Prof Bedlam can argue that he did not realise that ordinary decent people would regard his actions as dishonest. Finally, does Prof B intend to permanently deprive the library of the book? He intends that it will be returned at the end of his visit. Under s.6 can this amount to an intention to permanently deprive? The facts are similar to Lloyd – where, in deciding whether a borrowing was equivalent to an outright taking, the Court of Appeal suggested that all the goodness and value of the property must be lost through the borrowing. Question 2 There are three separate events here that need to be assessed separately: the event involving Alan the customer; the free haircut; and the email to Juliet’s friend.
Criminal law Chapter 15 Offences against property 1: theft and fraud The first incident demonstrates the overlap between ss.2 and 3 of the Fraud Act 2006, since Juliet could be charged with both offences, although the requirements are different. Under s.2, she may have committed fraud by false representation. Deal with the actus reus elements first. You need to identify what the representation is that she has made and whether it is false. In this scenario she tells Alan that the neighbours are ‘nice and quiet’. In fact this is false. Her liability will therefore hinge on whether she knows this to be false, whether she is dishonest and whether she intends to make a gain or cause a loss. You are told that she did not know whether the representation was false or not. This would suggest that she knew that it might be untrue. You then need to establish intent to make a gain or cause a loss to another – wanting a quick sale suggests she intended to make a gain for her employer. It is not clear what, if any, loss may be caused to Alan, although she may expose him to a risk of loss if he were to buy the house and find its value reduced because of the noisy neighbours. Note that the fact that Alan is unaffected by the false representation as he decides for other reasons not to buy the house (and therefore no gain is actually made) is irrelevant since this offence is a conduct crime and there is no need to establish any actual gain or loss. The final question is whether Juliet is dishonest under the Ghosh test. Would the ordinary reasonable person consider her actions to be dishonest? This may not be clear cut – some people may expect estate agents to behave in this way! However, assuming the ordinary reasonable person would consider this to be dishonest, the jury need to assess whether Juliet knew that her behaviour would be considered dishonest by those objective standards. The alternative charge here would be under s.3 – that Juliet failed to disclose information that she is under a duty to disclose. Dishonesty and intent to make a gain or cause a loss have already been established. What you need to assess here is whether Juliet is under a legal duty to disclose information about the neighbours to Alan. Estate agents are under a statutory duty not to make misrepresentations about the properties they are selling, and this may include a duty to disclose any information that have regarding the neighbours. In the hair stylist’s, liability for a different offence may arise. Look at what Juliet gains by her actions. She does not actually gain any money as such: she obtains the service of a haircut, which she does not pay for. You therefore need to assess liability under s.11 of the Fraud Act 2006. The haircut is a service which ordinarily would not be free (and she knows this). There is no requirement for a false representation under this offence, although the fact that she has lied about being a journalist may be evidence on which the jury find her to be dishonest under Ghosh which is the mens rea requirement. However, Gavin does not believe her. This may negate liability if she can successfully argue that her dishonesty has not caused the obtaining of the service. Section 11 is the one fraud offence which requires a causal connection between the dishonest behaviour and the obtaining. As Gavin offers her the free haircut because he finds her attractive she may not be liable for this offence. As regards the email to her friend, there is no false representation here so s.2 will not apply. Juliet may be charged here with a s.4 offence – fraud by abuse of position. The first question is whether Juliet is in a position where she is expected to safeguard, or not to act against, the financial interests of another. As an employee of the firm of estate agents she may be said to be in a position where she is expected not to act against the financial interests of her employer. Does she abuse this position – yes, by directing her friend to purchase the flat from another estate agent. You then need to assess whether she meets all of the mens rea requirements. Does she intend to make a gain or cause a loss? Remember that it does not matter whether any gain or loss is actually made, it is her intent that is important. Here she is trying to save her friend some money by suggesting an agent with lower fees so she intends to make a gain for another. Finally you need to assess whether she has abused her position dishonestly. This needs to be assessed under the Ghosh test. This may not be clear cut and you can leave this question to the jury, but make sure you set out clearly and precisely what the jury are being asked to decide and what they make take into account in deciding this question.
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Reflect and review Look through the points listed below: Are you ready to move on to the next chapter? Ready to move on = I am satisfied that I have sufficient understanding of the principles outlined in this chapter to enable me to go on to the next chapter. Need to revise first = There are one or two areas I am unsure about and need to revise before I go on to the next chapter. Need to study again = I found many or all of the principles outlined in this chapter very difficult and need to go over them again before I move on. Tick a box for each topic. Ready to move on
Need to revise first
Need to study again
I can understand the concept of ‘dishonesty’ in relation to offences against property in the Theft Acts 1968 and 1978 and the Fraud Act 2006.
I can outline the property offence of theft and identify the actus reus and mens rea elements of this offence.
fraud by false representation
fraud by failing to disclose information
fraud by abuse of position
obtaining services dishonestly
making off without payment.
I can apply the legal requirements for each offence to given factual scenarios.
I can explain what is meant by ‘fraud’ in the Fraud Act 2006. I can outline and identify the actus reus and mens rea elements of the fraud offences of:
If you ticked ‘need to revise first’, which sections of the chapter are you going to revise? Must revise
Revision done
15.1
Theft
15.2
Fraud
Before you continue to the next topic listen again to audio presentation 16 to recap and consolidate what you have learnt.
16 Offences against property 2: robbery and burglary
Contents Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 240 16.1
Robbery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 241
16.2
Burglary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 242 Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . 248
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Introduction This chapter continues the examination of offences relating to the unlawful acquisition of property or services begun in Chapter 15. In this chapter we turn to the serious offences of robbery and burglary, which are property offences, aggravated by either the use or threat of force (robbery) or the trespass into a building (burglary). Both offences are codified in the Theft Act 1968 the relevant case law has provided further guidance on the interpretation of terms used in the Act.
Essential reading and listening
Wilson, Chapter 16: ‘Other property offences’.
Audio presentation 17.
Learning outcomes By the end of this chapter and the relevant readings you should be able to:
explain the property offence of robbery and identify the actus reus and mens rea elements of this offence
explain the property offence of burglary, aggravated burglary and trespass with intent to commit a sexual offence and identify the actus reus and mens rea elements of this offence
apply the legal requirements for each offence to given factual scenarios.
Criminal law Chapter 16 Offences against property 2: Robbery and burglary
16.1 Robbery Essential reading
Wilson, Chapter 16: ‘Other property offences’, Section 16.1 ‘Robbery’ and Section 16.2 ‘Introduction’.
16.1.1 Actus reus The offence of robbery is set out in s.8 of the Theft Act 1968 and is defined as follows: A person is guilty of robbery if he steals and, immediately before or at the time of doing so, and in order to do so, he uses force on any person or puts or seeks to put any person in fear of being then and there subjected to force.
Stealing The first pre-requisite of this offence, therefore, is that D ‘steals’, so all the elements of theft must be proved. In Corcoran v Anderton (1980) 71 Cr App R 104 D snatched V’s handbag and ran away but dropped the handbag as he was running and made off without it. However, D was found guilty of robbery since by the time he dropped the handbag the offence of theft was complete and force had been used in order to steal. However in R v Vinall and another [2011] EWCA Crim 6252, the requirement of contemporaneity of force and theft was fatal to the conviction. One group of youths attacked another group, one of whom was riding a bike. He ran off with his friends leaving his bike behind. Later, one of the other youths took the bike only to abandon it after a time at a bus stop 50 yards from where it was first taken. He was charged and convicted of robbery, inter alia. The conviction was quashed as the prosecution had not shown that force had been used at the time of the theft. It was quite possible, for example, that the theft, if there had been one, only took place when the bike was abandoned. In that case D could not be guilty of robbery because the theft did not coincide with the use of force.
Force What distinguishes robbery from theft is the use of or threats to use force. This offence may therefore be a violent form of theft, commonly referred to as ‘mugging’. There is no offence of ‘mugging’ but where, for example, D attacks V in order to steal V’s mobile phone, the theft and the force or threat of force could constitute a robbery rather than a theft. Given the use of or threat of force, robbery is a more serious offence than theft and carries the maximum penalty of life imprisonment. What can amount to force for the purposes of robbery? The case law in this area suggests that a very minimal amount of force is necessary and that this need not amount to violence or ‘force’ in the ordinary sense of the word. Mere touching may suffice. In both Dawson and James (1976) 64 Cr App R 170 and Clouden [1987] Crim LR 56 the defendants were convicted of robbery.
Activity 16.1 Read Dawson and James [1976] answer the following questions: a. How much force was used by D in that case? b. What did the Court of Appeal say about the amount of force that was necessary for robbery? c. How much force was used in Clouden? The force used, however minimal, must be used in order to steal. This means that there must be a causal connection between the force and theft – robbery is not simply theft plus force. Therefore if force is used and D then uses V’s incapacity as a result of the force as an opportunity to stalk, this would not amount to robbery. The force need not be directed at the owner of the property since s.8 explicitly states that the force or threat of force can be directed at any person. In a stereotypical robbery,
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for example, where D robs a bank, the force is likely to be directed at an employee of the bank, who is in possession of the property though not the legal owner of it. The force must also be used before or at the time of stealing and not after the theft has taken place. In any case force used after a theft may not be said to be ‘force used in order to steal’. However, the courts have declined to interpret this very strictly and in Hale (1978) 68 Cr App R 415, force, which may have been used moments after the theft was complete, was held to be used at the time of stealing. In that case, two defendants entered V’s house and while D1 went upstairs to steal the contents of V’s jewellery box, D2 was downstairs tying V up. As the force and the theft were carried out separately it is possible that the theft was complete before the force was applied. In this case the Court of Appeal held that the theft could be regarded as a continuing act so that the force was applied at the time of stealing.
16.1.2 Mens rea As the offence of robbery requires that D complete the offence of theft, it is essential that the mens rea of theft is proved. However, s.8 of the Theft Act 1968 is silent as to whether there needs to be any mens rea in relation to the force used or threatened. However, the fact that the force or threat of force must be used in order to steal suggests that there must be intent to use or threaten force, and that force used or threatened accidentally will not suffice.
Self-assessment questions 1. D pulls at a bag hanging on V’s shoulder in order to take out her purse. Has D used force against V? 2. D assaults V by punching him in the face. As V falls to the ground as a result of the punch his wallet falls out of his pocket. D takes the wallet and runs off. Could D be guilty of robbery? 3. D picks V’s pocket. As D removes a wallet from V’s pocket, V notices and shouts: ‘Hey, give that back!’ D punches V and runs off. Could D be guilty of robbery? 4. D points a gun at V, a university librarian, and demands that she hands over a copy of Wilson. V does so. Could D be guilty of robbery?
Reminder of learning outcomes By this stage you should be able to:
explain the property offence of robbery, and identify the actus reus and mens rea elements of this offence
apply the legal requirements for this offence to given factual scenarios.
16.2 Burglary Essential reading
Wilson, Chapter 16: ‘Other property offences’, Section 16.3 ‘Burglary’, Section 16.4 ‘Common features in burglary’ and Section 16.5 ‘Modes of committing burglary’.
The offence of burglary is set out in ss.9 and 10 of the Theft Act 1968. A person is guilty of burglary if: a. he enters any building or part of a building as a trespasser and with intent to commit any such offence as is mentioned in subsection (2) below; or b. having entered any building or part of a building as a trespasser, he steals or attempts to steal anything in the building or that part of it or inflicts or attempts to inflict on any person therein any grievous bodily harm.
Although commonly regarded as a property offence because it involves an element of trespass, this offence need not involve any unlawful acquisition of property by D and may,
Criminal law Chapter 16 Offences against property 2: Robbery and burglary in fact, involve trespass in order to commit an offence against the person. In recognition of the fact that the impact upon V of a burglary may often involve an invasion of personal space or assault rather than a loss of property, the offence now carries two different maximum penalties depending on whether the burglary took place in a dwelling house (14 years) or in commercial or other premises (10 years). Burglary of someone’s house is therefore regarded as a more serious offence – because of the personal impact upon a victim, than burglary of some other premises (such as a school or a factory) where the victim is more likely to have merely lost property or had property damaged. There are essentially three types of burglary which will be outlined below, but all three have the common actus reus requirement that D enters a building or a part of a building as a trespasser.
16.2.1 Entering a building or part of a building as a trespasser The requirement that D ‘enters’ a building has been a contentious element of this offence. Section 9 merely uses the word ‘enters’ but does not specify what this may mean in different circumstances. The courts have therefore had to consider whether D’s whole person must enter a building (or whether a part of D’s body would suffice) and whether entry can be made using another person or an instrument. A leading case on this issue is Collins [1972] 2 All ER 1105. D, who was naked (except for his socks) climbed up a ladder and onto the windowsill of V’s bedroom, intending to have sexual intercourse with V (with or without her consent). V, thinking D was her boyfriend, invited him into her bedroom where D and V had sexual intercourse. Only after this did V realise that D was not her boyfriend and D was accused of burglary under s.9(1)(a) of the Theft Act 1978.
Activity 16.2 Read Collins and answer the following questions. a. Why did the court have to consider whether D had entered a building in this case? b. What did the Court of Appeal say was required for an entry? Had D entered the building at the relevant time? The direction in Collins on the issue of ‘entry’ into a building has been modified and relaxed in subsequent cases.
Activity 16.3 Use the Online Library to read the cases of Brown [1985] Crim LR 212 and Ryan [1996] Crim LR 320. Then answer the following questions. a. How far had the defendants in these cases ‘entered’ a building? b. How was the test for ‘entry’ modified in Brown? c. Was Ryan found to have entered a building? Is this consistent with Brown? Note that entry, for the purposes of burglary, does not have to be forced, and the offence is no longer described as ‘breaking and entering’. D must enter a building or a part of a building. Section 9(4) gives some further guidance on what constitutes a building by stating that a building includes: An inhabited vehicle or vessel… at times when the person having a habitation in it is not there as well as at times when he is.
This would therefore include a caravan or a houseboat which is inhabited. Other, uninhabited, structures may also be buildings though, such as a barn or garage. But what else may constitute a building? The definition can be rather wide, as illustrated by the case of B and S v Leathley [1979] Crim LR 314 in which a freezer container that had been placed in a farmyard for goods storage, with locked doors, which had been resting on sleepers for two or three years, connected to mains electricity, was held to be a building. The structure needs to be relatively permanent (Royal Exchange Theatre
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Trust v The Commissioners [1978]) and complete (Manning and Rogers [1871]), so the foundations of a building without complete walls or a roof would not suffice. Section 9 specifies that burglary may be committed where D has entered ‘part of a building’. This may be important where D has permission to be in one part of a building but enters another part where he is trespassing. This was the case in Walkington [1979] 2 All ER 716, where D was in a shop and went behind a moveable counter in the shop to put his hands in the till. He was permitted to enter the shop and so, in order to be guilty of burglary he would have had to enter a part of the building as a trespasser. In this case D was held to have done so as he entered a part of the building (behind a moveable counter) from which D knew the public were excluded. Finally D must enter as a trespasser. Trespass is not a criminal offence but a tort (a civil wrong) and the word bears its civil law meaning in the Theft Act 1968. Under civil law a trespass is committed where D intentionally, recklessly or negligently enters the property without the owner or occupier’s consent. For the purposes of burglary, it must be a building or part of a building that is entered and D must not have consent of the occupier or owner at the time that he enters. As we saw above, Collins may not have entered as a trespasser if he had been invited in before he crossed the threshold between the outer and the inner windowsill. If V invited him in as he was on the outer sill, then he entered as an invitee with permission and was therefore not a trespasser. The courts have stretched this point further in the case of Jones and Smith [1976] 3 All ER 54. In this case D entered his father’s house, with his father’s permission. Once inside D and his friend stole two televisions. D was convicted of burglary on the grounds that he had exceeded his father’s permission to enter the house, because at the time that he entered, he intended to steal. The father’s permission to enter the house did not extend to permission to enter a house to steal something. D had therefore intentionally entered as a trespasser as he knew that his father did not consent to his entry to the house for this purpose. This has substantially widened the actus reus of burglary, as any defendant who enters a building intending to commit an offence, even with permission, is likely to know that that permission will be exceeded by the commission of the offence. It could be argued, for example, that Collins exceeded the invitation by V to enter her bedroom, since at the time of entry he intended to have sexual intercourse with her without her consent and he knew that this exceeded her permission to enter.
16.2.2 Section 9(1)(a) Once the essential actus reus elements above are satisfied, the Theft Act 1968 sets out three ways in which burglary can be committed. Firstly, under s.9(1)(a) if D enters a building or part of a building as a trespasser with intent to commit one of the ulterior offences listed in s.9(2) then he may be guilty of burglary even though the ulterior offence is not committed. The relevant ulterior offences are:
theft
inflicting GBH
criminal damage.
As intent to commit one of the ulterior offences is required, burglary is a specific intent crime. This may be important where D is intoxicated and pleads the defence of intoxication (see Chapter 11).
16.2.3 Section 9(1)(b) The second form of burglary, in s.9(1)(b) occurs where D enters a building or part of a building as a trespasser and actually commits one of the subsidiary offences set out in s.9(1)(b), which are:
theft or attempted theft
Criminal law Chapter 16 Offences against property 2: Robbery and burglary
infliction or attempted infliction of GBH.
All actus reus and mens rea requirements of the ulterior offence must be established for the charge of burglary. So where D enters a building as a trespasser and once inside steals, he may be guilty of both theft and burglary. Note that criminal damage is not a subsidiary offence for the purposes of s.9(1)(b) although it is for s.9(1)(a).
16.2.4 Trespass with intent to commit a sexual offence Section 9(1)(a) used to include rape as one of the subsidiary offences for an offence of burglary. So if D had entered a building as a trespasser with intent to rape, as in the case of Collins, he may have been guilty of rape. After the Sexual Offences Act 2003, rape was removed from s.9(1)(a) of the Theft Act 1968 and replaced with a new and separate offence of trespass with intent to commit a sexual offence. The offence is defined in s.63 of the Sexual Offences Act 2003 as follows: A person commits an offence if: a. he is a trespasser on any premises b. he intends to commit a relevant sexual act (i.e. one contained in Part I SOA 2003) c. he knows that, or is reckless as to whether, he is a trespasser.
This is significantly wider than burglary, since it covers any of the new sexual offences (including, but not limited to rape) created in Part I of the 2003 Act (see Chapter 10). This offence also does not require an entry into a building or part of a building, but merely that D is knowingly or recklessly trespassing in ‘premises’ which may include a building but is much wider and may also include non-temporary structures or simply just land. The ulterior sexual offence need not be committed, but D must have the intent to commit the offence at the time that he is trespassing.
16.2.5 Aggravated burglary A third and more serious form of burglary is set out in s.10 of the Theft Act 1968. The actus reus and mens rea elements of this offence are identical to those of the standard burglary offence in s.9, with an additional actus reus element that D, at the time of committing the burglary, has with him one or more of the following:
a firearm or imitation firearm
a weapon of offence
an explosive.
This more serious offence carries a higher maximum penalty in view of the potential harm that D might cause if he were to use one of these forms of weapons.
Summary In this section we have outlined the three ways in which a burglary may be committed, as well as the new offence of trespass with intent to commit a sexual offence, which replaces the offence of burglary where D intends to commit a sexual offence whilst trespassing. For all of these offences D must be a trespasser under civil law. For the standard and aggravated offences of burglary D must also enter a building or part of a building as a trespasser. Once these elements have been fulfilled D must either intend to commit one of the ulterior offences set out in s.9(1)(a) or actually commit an ulterior offence committed in s.9(1)(b) and for aggravated burglary he must do this whilst in possession of a weapon. The new sexual offence also involves trespass, but of premises (which may include a building but extends further) and there must be an intention to commit a sexual offence in Part I of the Sexual Offences Act 2003. The ulterior sexual offence need not actually be committed.
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Self-assessment questions 1. Is a tent a building for the purposes of burglary? Is a caravan a building? 2. D, who is drunk, is dragged into a derelict warehouse by his friends and left there. D then sets fire to a broken chair that he finds in there in order to keep warm. Is D guilty of burglary? 3. D has been dismissed from his job and has been asked to leave the office building immediately. After leaving he realises that he has left a picture of his wife on his desk. That night he uses his security pass to go back into the building to fetch the picture. As he is searching for the picture he knocks the computer screen off his desk and it smashes on the floor. Has D committed burglary? 4. Greg has been invited to a barbeque that his neighbour is holding in her garden. He notices his neighbour’s friend Teresa, to whom he has always been attracted, and walks over to her. Having had a glass of wine he has built up the courage to let her know how he feels about her and kisses her on the cheek. She slaps him on the face and walks off. What offences might Greg have committed?
Reminder of learning outcomes By this stage you should be able to:
explain the offences of burglary, aggravated burglary and trespass with intent to commit a sexual offence and identify the actus reus and mens rea elements of each offence.
Sample examination question This question relates to the broad area of theft. Veronica, who is 85 and housebound, asks her friend Diane to buy her grocery shopping and gives her £30 to spend. Before she reaches the supermarket, Diane passes a shoe shop in which she spots a pair of sandals that she likes. She buys the sandals with the cash that Veronica gave her, thinking that Veronica will not mind as it will soon be Diane’s birthday and Veronica always buys her a present to the value of about £30. Diane then goes to the supermarket, selects Veronica’s groceries and places them in a basket, intending to walk out of the supermarket without paying as she has already spent Veronica’s money and thinks that Veronica’s need is greater than that of the supermarket. However, before she can leave the supermarket she is stopped by the store detective who calls the police. Discuss any criminal liability arising from Diane’s conduct.
Advice on answering the question The first event to consider here is the fact that Diane spent the £30 that she had been given on the sandals. Could this constitute a theft of the £30? You need to go through the five elements of theft in turn. First, did Diane appropriate the £30? Although she was given the money with Veronica’s consent this may still amount to an appropriation as she has assumed the rights of the owner (Gomez, Hinks). The £30 may be said to be property as she has the money in cash and the notes or coins would be considered to be tangible property. However, at the time of the appropriation does the £30 belong to another? Remember that property may ‘belong to’ someone who has possession and control of it in this context and Diane may argue that therefore the property belongs to her at that time. However, this situation may fall under s.5(2) of the Theft Act 1968, as Diane effectively holds the money on trust for Veronica to deal with in particular way. Defeating this trust (by dealing with it in an unauthorised way, for example by buying the sandals with it) results in the property being treated as belonging to the beneficiary of the trust (Veronica). You must then consider the mens rea of theft. Has Diane acted dishonestly here? Diane may, in her defence, make use of s.2(1)(b) of the Theft Act, and claim that she honestly believed that she would have Veronica’s consent to the appropriation of the money if she knew of the circumstances. Her belief need only be honest but the jury would need to decide whether they believed that Diane honestly believed this! It appears relatively clear that Diane intended to permanently deprive Veronica of the money.
Criminal law Chapter 16 Offences against property 2: Robbery and burglary The second event occurs in the supermarket where Diane takes goods off the shelf and places them in her basket. Although she never actually leaves the supermarket with the goods you need to assess whether a theft has taken place by the time she is apprehended by the store detective. This is not necessarily an attempted theft. Try to establish the full offence first. Again go thorough the five elements in turn. As she takes the goods off the shelf she could be said to have appropriated them. She has assumed at least some of the rights of the owner (Morris). Although she has the consent of the supermarket to do this, the consent is irrelevant and she has still appropriated them. They belong to another at the time that she appropriates them – although she has possession and control, the supermarket is still the legal owner of the property at this point. The actus reus is therefore established without any need for her to leave the shop. The crucial question is therefore whether she has the mens rea for theft at the time of the appropriation. We are told that at that time she intends to leave without paying (and therefore permanently deprive the shop of the goods) because she has no money. Is she dishonest? This time s.2 does not apply so you will need to apply the Ghosh test for dishonesty. Would this behaviour be regarded as dishonest by the ordinary reasonable person? Probably. So then ask, did she realise that her behaviour would be so regarded? Again, she probably would. Although she did not think she was acting dishonestly (she was stealing from a rich supermarket to give to a poor, elderly lady) she may have realised that others would regard this as dishonest. So it appears that she has committed theft without leaving the supermarket, but only because she has the mens rea at the relevant time. Honest shoppers doing the same thing would not be guilty of theft! You may have some critical comment on the ease with which Diane may be guilty of theft.
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Reflect and review Look through the points listed below: Are you ready to move on to the next chapter? Ready to move on = I am satisfied that I have sufficient understanding of the principles outlined in this chapter to enable me to go on to the next chapter. Need to revise first = There are one or two areas I am unsure about and need to revise before I go on to the next chapter. Need to study again = I found many or all of the principles outlined in this chapter very difficult and need to go over them again before I move on. Tick a box for each topic. Ready to move on
Need to revise first
Need to study again
I can explain the property offence of burglary, aggravated burglary and trespass with intent to commit a sexual offence and identify the actus reus and mens rea elements of this offence.
I can explain the property offence of robbery and identify the actus reus and mens rea elements of this offence.
If you ticked ‘need to revise first’, which sections of the chapter are you going to revise? Must revise
Revision done
16.1
Robbery
16.2
Burglary
Before you continue to the next topic listen again to audio presentation 17 to recap and consolidate what you have learnt.
17 Criminal damage
Contents Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 250 17.1
Simple criminal damage . . . . . . . . . . . . . . . . . . . . . . . . . 251
17.2
Mens rea . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 254
17.3
Aggravated criminal damage. . . . . . . . . . . . . . . . . . . . . . . 255
17.4
Arson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 257
17.5
Defences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 258 Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . 263
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Introduction Criminal damage is the final topic you will be studying on this Criminal law course. By now, you should have covered all of the other topics, completed the readings, the audio presentations, the activities and any research exercises. In addition, you should have completed the computer marked assessments and also all of the online research exercises and should therefore be familiar with the databases in the Online Library. It is time, therefore, for you to become more pro-active in your study of a topic. To encourage you to do this, unusually, we have decided to tell you that this topic – or a part of it – will be examined. We are not, however, going to tell you how it will be examined. It might be an essay on an element of the subject, a problem question or part of a problem question but you will find this subject in the criminal law examination. This chapter has been structured in such a way as to enable you to use the research skills you have acquired so far and consolidate your existing knowledge of some of the general principles of criminal law. You will be dealing with the offence of criminal damage contrary to s.1(1), (2) and (3) of the Criminal Damage Act 1971. This Act, which replaced the Malicious Damage Act 1861, created a number of offences that could be committed against property. This chapter is, however, confined to the offences of simple criminal damage contrary to s.1(1) of the 1971 Act, aggravated criminal damage contrary to s.1(2) and arson contrary to s.1(3). In addition, this chapter covers the defences to criminal damage provided by s.5 of the 1971 Act. The maximum sentence for simple criminal damage is 10 years’ imprisonment. For aggravated criminal damage and arson the maximum sentence is life imprisonment. Note that arson can be either ‘simple’ or ‘aggravated’. The maximum penalty is the same whether arson is of the simple or aggravated form, but a defendant convicted of aggravated arson is likely to receive a longer sentence of imprisonment than a defendant convicted of simple arson. Remember, the life sentence is a maximum sentence so the judge has a certain amount of discretion as to the penalty he awards. The aggravating factor required for aggravated offences is that the defendant must either intend by virtue of the damage to, or destruction of, the property to endanger life or be reckless as to whether it will do so. The general rule is that the property damaged must belong to another, but an exception to this is aggravated criminal damage contrary to s.1(2) which does not require that the property belong to another. Therefore, this offence can be committed by way of the destruction of or damage to one’s own property. This is because the mischief behind this offence is endangerment to life.
Essential reading and listening
Wilson, Chapter 17: ‘Criminal damage’.
Audio presentation 18.
JC Smith’s comment on the case of Lloyd [1992]. (Included in your study pack.)
Section 10(1) of the Criminal Damage Act 1971. (Included in your study pack.)
The opinion of Lord Bridge in the case of R v Steer [1987] 2 All ER 833. (Included in your study pack.)
Criminal law Chapter 17 Criminal damage
Learning outcomes By the end of this final chapter and the relevant readings you should be able to:
demonstrate, by your knowledge and understanding of the following, that you have used and developed your research skills competently
describe and apply to factual situations the actus reus and mens rea requirements for the offences contained in s.1 of the Criminal Damage Act 1971
explain the meanings of ‘damage’, ‘destroy’, ‘property’ and ‘belonging to another’ for the purpose of offences of criminal damage
state the mens rea requirements for these offences
describe what defences might be available on a charge of criminal damage and in what circumstances
explain the defence provided by s.5(2) of the Criminal Damage Act 1971.
17.1 Simple criminal damage Essential reading
Wilson, Chapter 17: ‘Criminal damage’.
Activity 17.1 1. How is the offence of criminal damage defined? 2. Where can you find this definition? The elements of this offence were analysed briefly in Chapter 2 Please re-read those pages before you proceed with this chapter. There are now some further issues to consider in relation to this offence.
17.1.1 Actus reus Activity 17.2 1. What is the actus reus of simple criminal damage? 2. What other offence might be committed in circumstances where property is completely destroyed? The terms ‘destroy’ and ‘damage’ are not defined in the statute and you must look to case law for guidance on these elements of the offence.
Destroy Examples of destruction to property might include demolishing a building, killing an animal or spraying weedkiller on somebody’s cherished plant. The meaning of ‘destroy’ does not seem to have caused problems for the courts and it is not difficult to see why this is, as even where there might be doubts as to whether property was totally destroyed it will, by definition, have suffered damage which can be properly charged under the Act. The level of damage caused will be one of the factors taken into account by the court when determining the sentence of a person convicted of criminal damage.
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Damage
Essential reading
Wilson, Chapter 17: ‘Criminal damage’, Section 17.2 ‘Criminal damage’, Part A ‘Actus reus’.
One of the difficulties with this offence is determining to what extent the property must be interfered with in order to amount to criminal damage. Damage to property need only be slight to result in a person being charged with the offence. Scratching a car or cracking a window are likely to be sufficient interferences with the integrity of the property to amount to criminal damage. Generally it is not difficult to determine that property has been damaged. The question as to whether it is ‘damaged’ for the purposes of the Criminal Damage Act 1971 is one of fact and degree (Cox v Riley [1986]). Note that the defendant in this case would now be charged with an offence contrary to s.3 of the Computer Misuse Act 1990 – unauthorised modification of computer material – but the case is still good authority for certain other situations where material is stored in electro-magnetic form such as audio or video tapes or where the effect of the modification of the contents of a computer ‘on that computer or computer storage medium impairs its physical condition’ (s.3(6) of the Computer Misuse Act 1990). A difficult issue is what level of interference will amount to criminal damage. What is the position where the damage can be easily remedied – for example drawing with chalk on the pavement? (Chalk is easily washed off.) See Gayford v Choulder [1898], Hardman v Chief Constable of Avon and Somerset Constabulary [1986], A (a juvenile) v R [1978], Morphitis v Salmon [1990] and Roper v Knott [1898].
Activity 17.3 Consider whether the property has been ‘damaged’ for the purposes of the Criminal Damage Act 1971 in the following circumstances: a. Bill watered down John’s milk. b. Susie was a pavement artist who used water soluble chalks and paints to make pictures on the pavement. c. Jill spat at Tom and her spittle landed on his coat. d. Brian scratched his initials on some scaffolding which had been erected on the house next door. Impairing the usefulness of property can also amount to ‘damage’ – for example, removing a part from or dismantling a machine so that it no longer works properly, e.g. removing a rotor arm from a car. In this situation the defendant should be charged with damaging the machine – not the part – unless the part itself has been damaged (Woolcock [1977]).
Activity 17.4 Read the extract from J.C. Smith’s comment on the case of Lloyd [1992] in your study pack and consider the following: a. Can a person consent in law to the damage of their property? b. Is clamping a car criminal damage? c. Why did Professor Smith consider the reason for the court rejecting the defendant’s argument in this case to be ‘not so clear’? Note that Lloyd was followed in Mitchell (Carl) [2004] Crim LR 139.
Criminal law Chapter 17 Criminal damage Property
Essential reading
Wilson, Chapter 17: ‘Criminal damage’, Section 17.2 ‘Criminal damage’, Part A ‘Actus reus’.
Section 10(1) of the Criminal Damage Act 1971 defines what is ‘property’ for the purposes of the Act. It follows that if something which is destroyed or damaged does not fall within the definition of property contained in that section there can be no offence of criminal damage. There are some similarities between the definition of property in s.10(1) of the Criminal Damage Act 1971 and that in s.4 of the Theft Act 1968 (see Chapter 15) which reflect the different mischiefs to which each statute applies.
Activity 17.5 Consider s.10(1) of the Criminal Damage Act 1971 and answer the following questions. a. Can you find three differences between s.10(1) of the Criminal Damage Act 1971 and s.4 of the Theft Act 1968? b. Has there been damage to property in the following situations? i.
Jane, while on a country walk, finds and eats some wild mushrooms.
ii. It is raining so Jane breaks a window to gain entry to a house in order to take shelter. iii. As she leaves, she picks some flowers from the houseowner’s garden to take home with her.
Belonging to another
Essential reading
Wilson, Chapter 17: ‘Criminal damage’, Section 17.2 ‘Criminal damage’, Part A ‘Actus reus’.
For the offence of criminal damage contrary to s.1(1) to lie, the property destroyed or damaged must belong to another. Section 10(2) defines for these purposes when property belongs to another.
Activity 17.6 When, according to s.10(2) will property be treated as belonging to another? Refer now to this section. Once again you will see the similarities between s.10(2) and s.5 of the Theft Act 1968.
Activity 17.7 a. Find two differences between s.10 of the Criminal Damage Act 1971 and s.5 of the Theft Act 1968 as they relate to ‘belonging to another’. b. Erica destroys her car so that she can claim the insurance money from the insurance company. Has Erica committed the actus reus of criminal damage?
Summary The actus reus of simple criminal damage requires proof that the defendant without lawful excuse destroyed or damaged property belonging to another. Although ‘destruction’ as an element of the offence does not pose particular problems, the issue of whether damage amounts to criminal damage has resulted in a number of cases, some of which have been examined in this chapter.
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17.2 Mens rea Essential reading
Wilson, Chapter 17: ‘Criminal damage’, Section 17.2 ‘Criminal damage’, Part B ‘Mens rea’.
Please go to s.1(1) of the Criminal Damage Act where you will see that the mens rea requirement for this offence is that the defendant ‘intentionally’ or ‘recklessly’ destroyed or damaged the property belonging to another. Intention and recklessness are considered in Chapter 4. Although you should, by now, be familiar with these terms and their meanings, it would be a good idea to go back to Chapter 4 to reinforce your knowledge before you proceed any further.
Activity 17.8 i.
A defendant will often be charged with ‘intentionally’ or ‘recklessly’ destroying or damaging property belonging to another. What is the effect of this?
ii. What does ‘recklessness’ mean in this context? Where the indictment contains the alternative states of mind or where the defendant has been charged with reckless criminal damage then whether it is the simple or aggravated form of criminal damage, it is a basic intent crime and therefore selfinduced intoxication is no defence. See again Majewski.
17.2.1 Intentional destruction or damage to property belonging to another It must be proved that the defendant intended by his conduct to destroy or damage property belonging to another.
Activity 17.9 a. John was kicking a ball around in his garden. He aimed for a tree but missed and the ball hit his neighbour’s window breaking it. Is John guilty of criminal damage? b. Susie hated criminal law so she decided to destroy her textbook. Unfortunately, she mistakenly destroyed her friend’s book. Is she guilty of criminal damage?
17.2.2 Reckless destruction or damage to property belonging to another As stated above, the Criminal Damage Act 1971 replaced the Malicious Damage Act 1861. The Law Commission had said (Law Com No. 29, para 44): … We consider… that the same elements as are required at present should be retained but they should be expressed with greater simplicity and clarity. In particular we prefer to avoid the use of such a word as ‘maliciously’… Furthermore the word ‘maliciously’ conveys the impression that some ill-will is required against the person whose property is damaged.
It is clear from this that the words ‘intentionally’ and ‘recklessly’ in the Criminal Damage Act 1971 were intended to reflect and clarify the interpretation by the Court of Criminal Appeal in Cunningham [1957] 2 QB 396 of the term ‘maliciously’. This is how ‘recklessly’ was interpreted by the Court of Appeal in the case of Stephenson [1979] QB 695, which followed the Criminal Damage Act. Stephenson’s conviction for criminal damage was quashed by the Court of Appeal because the issue of whether he had foreseen a risk of damage had not been clearly left to the jury.
Criminal law Chapter 17 Criminal damage You will remember, however, from Chapter 4 that in 1981 the House of Lords decided in the case of Caldwell [1982] AC 341 that, in addition to being found to be reckless where he was aware of a risk of damage to property (which had long been the law), a defendant would also be reckless where, although he had not been aware of a risk, this was because he had not given any thought to the possibility of there being such a risk and the risk would have been obvious – it was later decided – to the reasonable man. This effectively gave rise to two types of recklessness, i.e. ‘advertent’ (or Cunninghamtype) recklessness and a new species of ‘inadvertent’ recklessness. Cunningham type – or advertent – recklessness, however, continued to be applied to non-fatal offences against the person which had the effect, as Smith and Hogan point out, of giving ‘greater protection to spectacles than to eyes’. In addition, as has been pointed out by many writers, the decision in Caldwell meant that a defendant could be convicted of a serious offence where he had no state of mind in relation to the proscribed harm and therefore was likely to create injustice, as it arguably did in the case of Elliot v C (a minor) [1983] 2 All ER 1005. Caldwell, as you are aware, was unanimously overruled by the House of Lords in R v G in 2003, the House of Lords ruling that the House of Lords in Caldwell had erred by ruling that ‘recklessness’ meant something different to what it had meant under previous law (i.e. the Cunningham definition). In Castle [2004] All ER (D) 289 the Court of Appeal held that the Caldwell definition of recklessness was no longer appropriate and applied the decision of the House of Lords in R v G [2004]. The offence in this case was arson, being reckless as to whether life was endangered (s.1(2) and (3) but the same principles apply to the offence under s.1(1) in respect of recklessness). The current definition of recklessness as it applies to criminal damage now accords with that in clause 18(c) of the Draft Criminal Code. Please note that when answering a problem question where you need to consider reckless criminal damage, you only need to consider the current law as stated in R v G. Of course the decision in Caldwell and its attendant problems may be relevant when answering an essay question
Self-reflection How, after the decision in Caldwell but before the decision in R v G did the law, give ‘greater protection to spectacles than to eyes’?
17.3 Aggravated criminal damage Essential reading
Wilson, Chapter 17: ‘Criminal damage’, Section 17.2 ‘Criminal damage’, Part A ‘Actus reus’.
Section 1(2) of the Criminal Damage Act provides that: A person who without lawful excuse destroys or damages any property, whether belonging to himself or another: a. intending to destroy or damage any property or being reckless as to whether any property would be destroyed or damaged; and b. intending by this destruction or damage to endanger the life of another or being reckless as to whether the life of another would be thereby endangered shall be guilty of an offence.
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17.3.1 Actus reus Activity 17.10 If you consider s.1(2) carefully you will see that the actus reus of the aggravated form of criminal damage is, in most respects, the same as that for simple criminal damage. There is, however, one important difference. What is this difference?
17.3.2 Mens rea The basic mens rea for this offence is the same as that for simple criminal damage, i.e. the defendant must intend or be reckless as to the damage or destruction of the property.
Activity 17.11 The offence of aggravated criminal damage is what is known as an ‘ulterior intent’ crime. What does this mean? Please refer again to Chapter 5. Remember, that in order to find a defendant guilty of this offence, in addition to proving that the defendant intentionally or recklessly destroyed or damaged property, it must also be proved that s/he was aware of an obvious and significant risk of danger to life. In Cooper [2004] EWCA Crim 1382 the defendant had been convicted of arson, being reckless as to whether life was endangered. The trial judge had summed up the law in accordance with Caldwell. On appeal against conviction the Court of Appeal held that in the light of the House of Lords’ speeches in R v G [2004] it was necessary for the trial judge to direct a jury that the risk of danger to life was obvious and significant to the defendant. If he realised there was a risk, but dismissed it as negligible, it could not be said that he realised that he was taking an obvious and significant risk. It is vital that you note the link between the criminal damage itself and the defendant’s ulterior mens rea. The defendant must intend or be reckless as to endangerment of life by reason of the criminal damage.
Activity 17.12 Go to either LexisNexis or Westlaw in the Online Library and find the case of R v Steer [1987] 2 All ER 833. Read the opinion of Lord Bridge and answer the following questions. a. What was the point of law of general public importance certified for the House of Lords in this case? b. What was the submission of counsel for the respondent at the conclusion of the case for the prosecution? c. The trial judge accepted the submission of the prosecution. What was this submission? d. What, according to Lord Bridge, should be the effect of any ambiguity in the statute? e. Did Lord Bridge consider s.1(2) of the Criminal Damage Act to be ambiguous? f.
Why was Parker LJ’s dictum in the case of Hardie distinguished by the House of Lords in this case?
g. How did Lord Bridge determine that the certified question should be answered?
Criminal law Chapter 17 Criminal damage
17.4 Arson Essential reading
Wilson, Chapter 17: ‘Criminal damage’, Section 17.1 ‘Introduction’.
Activity 17.13 1. What is arson and where would you find the definition of this offence? 2. How many forms of arson are there? 3. Can the aggravated form of this offence be committed? Care must be taken in respect of charging a defendant with arson as s.1(3) provides that ‘damaging property by fire shall be charged as arson’ and it seems that where there is endangerment to life there should be separate counts of:
arson with intent to endanger life, and
arson being reckless as to whether life would be endangered.
In Drayton (Alan Clark) [2005] EWCA, the defendant had been charged under s.1(1) and (3) of the Criminal Damage Act 1971 (i.e. the ‘simple’ form of arson) with: without lawful excuse [damaging] by fire property intending to destroy or damage such property or being reckless as to whether such property would be destroyed or damaged.
The defendant contended that the provision in s.1(3) of the 1971 Act was mandatory and that if something was not charged as arson then it was an offence that was not immediately known to law. It was held that a requirement to charge as arson meant a requirement to charge as damage by fire, rather than damage by any other means as that can materially affect the penalty. To charge as causing damage by fire was to charge arson, because that was exactly what arson meant. They were synonymous concepts.
Self-assessment Remember to properly analyse each element of each offence you consider in relation to Ruby’s conduct. Ruby, who was 14 years old and intellectually challenged, decided to run away from home. She wandered the streets all day and by the time night fell she was very tired, cold and hungry. She found an unlocked wooden shed in somebody’s garden and decided to stay the night there. She was still very cold so she thought she would make a fire. She crumpled an old newspaper which was lying in the shed, soaked it with some white spirit, which she had found, and lit it. The fire quickly went out of control and completely destroyed the shed. Is Ruby guilty of criminal damage? Hint: Although the facts of this question are based on the facts in the case of Elliott v C, you would not follow that decision as the House of Lords subsequently changed the law in the case of R v G.
Racially or religiously aggravated criminal damage Section 30 of the Crime and Disorder Act 1998 (as amended by s.39(5)(b) and (6)(b) of the Anti-terrorism, Crime and Security Act 2001) provides that: 1 A person is guilty of an offence under this section if he commits an offence under Section 1(1) of the Criminal Damage Act 1971…which is racially or religiously aggravated for the purpose of this section.
See also paras 17.8 – 17.8.2 of Smith and Hogan for a discussion of racially and religiously aggravated offences generally. They are discussed in the context of assault and battery but the definitions are also relevant here.
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17.5 Defences A number of general defences (e.g. mistake, self-defence and duress of circumstances) can be pleaded on a charge of criminal damage (see Chapters 11–12).
17.5.1 Lawful excuse Essential reading
Wilson, Chapter 17: ‘Criminal damage’, Section 17.2 ‘Criminal damage’, Part C ‘Lawful excuse’.
Note that where the defendant claims that he had a lawful excuse the burden of proof remains on the prosecution to prove that he did not have such lawful excuse. Both subsections (1) and (2) provide that the destruction or damage to property must be ‘without lawful excuse’ but, given the endangerment to life element of the offence contrary to subsection (2), it would only be in fairly exceptional circumstances that a defendant would succeed. An example might be where the defendant hits his attacker in self-defence with a heavy ornament so hard that the blow smashes the ornament and fractures his attacker’s skull. Here, provided the defensive force was both necessary and reasonable, the defendant would have a defence should he be charged with aggravated criminal damage. Section 5(2) of the Criminal Damage Act provides what could be described as a partial definition of lawful excuse as a defence but only to a charge under s.1(1) of the Act (i.e. simple criminal damage). Section 5(2) does not apply to the offence contrary to s.1(2) of the Act.
Activity 17.14 Section 5(2)(a) and (b) sets out two situations where a defendant will have a defence to a charge of simple criminal damage. What are these situations? Section 5(2)(a) is similar to s.2(1)(b) of the Theft Act 1968 (see Chapter 15). The only issue here is whether the defendant’s belief was honestly held and in Jaggard v Dickinson [1980] 3 All ER 716 it did not matter for these purposes that the defendant’s mistake was a drunken mistake. You should note here that this decision has ‘troubled’ the Law Commission as criminal damage is a basic intent offence. See para 2.94 (at page 43) of its Report ‘Intoxication and Criminal Liability’ (Law Com No. 314) published in January 2009, and clause 5 of the Bill. These proposals can be downloaded at: www.official-documents. gov.uk/document/cm75/7526/7526.pdf So far as s.5(2)(b) is concerned, the defendant will satisfy the requirement that his property or interest was in immediate need of protection if the threat to his property has already materialised (Chamberlain v Lindon (1998) The Times, 6 April). Where the defendant’s conduct, however, has only a tenuous connection with his alleged purpose of protecting property this defence may not be available to him, as in Hunt [1977] Cr App R 105.
Activity 17.15 See:
Hunt (1977) Cr App R 105
Hill and Hall [1989] Crim LR 136
Chamberlain v Lindon (1998)
Kelleher [2003] EWCA Crim 2846
Criminal law Chapter 17 Criminal damage Now answer the following questions. a. Why did Mr Hunt fail with his defence? b. Who decides whether a defendant’s purpose amounts to a purpose of protecting property? c. In a situation where a person has acted with more than one purpose can he succeed with the defence under s.5(2)? d. What happened in Kelleher (2003)? Did the defendant succeed with his appeal to the Court of Appeal? You will see from the cases you have just considered that where there is, in truth, no evidence of lawful excuse that the jury could be asked to consider, the trial judge is entitled to withdraw that issue from the jury but the jury should not be directed by the trial judge to convict. This was approved by the House of Lords in Wang [2005] UKHL 9. As with s.5(2)(a) the defendant’s belief that he was acting in order to protect property under s.5(2)(b) only needs to be honest; it does not need to be reasonable. In R v Jones and others [2004] EWCA Crim 1981 the appellants appealed to the Court of Appeal on a number of issues (see Chapter 12). The prosecution cross-appealed against the trial judge’s ruling on the issue of whether a belief that property is in need of protection has to be justified or merely honestly held and whether the threat to property sought to be protected has to be unlawful for the purposes of s.5(2)(b). The defendants in this case had been charged with a number of offences, including criminal damage and arson at an RAF base. They had raised a number of defences including that under s.5(2)(b) of the Criminal Damage Act 1971. They sought to rely on their beliefs as to the lawfulness of the actions of the UK in preparing for, declaring and waging war in Iraq in 2003. The Court of Appeal held that the effect of s.5(2)(b) was that a defendant would be treated as having a lawful excuse if, at the time he acted, he believed the property in question was in immediate need of protection and that the means proposed to be adopted would be reasonable having regard to all the circumstances. It was immaterial whether the belief was justified provided that it was honestly held. The only objective element that the jury would need to consider was whether it could be said that, on the facts as believed by the defendant, the criminal damage alleged could amount to something done to protect another’s property. There was no further requirement that, on the facts as believed by the defendant, those facts established that the threat was of unlawful damage to the property. Latham LJ, who handed down the judgment of the court, said: Whilst there are clearly strong policy arguments for imposing such a further restriction on the availability of the defence, the fact is that the statute does not so provide. Subject to the one objective element to which we have referred, the court and the jury are concerned simply with the question of a defendant’s honestly held beliefs. It follows that no issue can arise in relation to this defence which involves consideration of the legality of the war in Iraq.
The Court of Appeal in R v Jones (Margaret) (see below Lord Hoffmann in the House of Lords) certified two questions of general public importance. One of these concerned the defence under s.3 of the Criminal Law Act 1967. The second was: (2) Is the defence of lawful excuse under s.5 of the Criminal Damage Act 1971 available to a defendant who acts to protect the property of another abroad from damage that will be caused by the executive’s lawful exercise of prerogative power to wage war?
Lord Hoffmann (R v Jones [2006] UKHL 16) pointed out that: The second question was presumably included at the request of the prosecution. But only the defendants sought the leave of the House to appeal…
Therefore this point of law, which had been certified by the Court of Appeal as one of general public importance, did not fall to be determined by the House of Lords. The law on this point thus remains that as confirmed by the Court of Appeal.
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Self-assessment Will the following actions constitute destroying or damaging property for the purposes of the Criminal Damage Act 1971? 1. Spray-painting graffiti on a concrete wall. 2. Publishing secret information, thus destroying confidentiality. 3. Stabbing a cow as it stands in a farmyard. 4. Picking mushrooms found growing in a wood. 5. Disconnecting the brake cable on a bicycle. 6. Walking through a field, trampling on the wheat crop growing there.
Summary The offences contrary to s.1 are committed when a person intentionally or recklessly destroys or damages property. For the offence of simple criminal damage contrary to s.1(1) the property must belong to another but for the aggravated form of the offence contrary to s.1(2) this is not necessary. If the property is destroyed or damaged by fire the charge should be arson by virtue of s.1(3) of the Act. Damage does not need to be permanent to fall within the scope of the Act. For liability under s.1(2) it must be proved – in addition to the mens rea as to the damage itself – that the defendant intended or foresaw that the risk to life would arise as the result of the damage (Steer). Recklessness is assessed subjectively in accordance with the decision in R v G [2004]. General defences may be available to a person charged with criminal damage. There is also the defence of ‘lawful excuse’ which is partly defined in s.5 of the Act. The beliefs required by s.5 need only be held ‘honestly’ – there is no requirement of ‘reasonableness’ and it is irrelevant that they result from intoxication (Jaggard v Dickinson [1980]).
Sample examination question Leila was at a party at Matthew’s house when she noticed Olivia’s car parked outside. Leila had recently had an argument with Olivia so she let the air out of one of the tyres on Olivia’s car. A little later when Olivia discovered what Leila had done she threw a plate at Leila but it missed and broke a window. Olivia was worried about what Leila might do so went and hid in the garden shed. She had had a lot to drink and fell asleep in the shed. During the party Matthew decided to demonstrate a trick which involved him spraying lighter gas at a cigarette. Unfortunately, there was a small explosion which resulted in the curtains catching fire. The fire quickly spread, although everybody managed to leave the house safely. The fire was subsequently put out by the fire brigade. The following morning Olivia woke up, having slept through the fire which had not affected the shed. She discovered that she was locked in. She was a little nervous and desperate to use the lavatory so she broke open the door of the shed, destroying the lock and damaging the woodwork. Consider the liability of the parties for criminal damage.
Advice on answering the question What follows is not a ‘model’ answer but rather points to note, (i.e. notes of the issues you will need to examine in constructing your answer). You should always analyse each possible offence separately, ensuring that you discuss the elements of each offence as they relate to the facts of the question. In relation to each issue consider:
Criminal law Chapter 17 Criminal damage What offences might the incident give rise to? (If there is more than one possible offence remember to discuss them separately.) What does the prosecution need to prove? (Discuss the actus reus and then the mens rea.) Where relevant, are there any defences? Only discuss the possibility of a defence:
when the facts of the question indicate that possibility
if they do, only discuss defences when you have completed your discussion of the offence.
Leila letting the air out of one of the tyres on Olivia’s car Consider criminal damage contrary to s.1(1) of the Criminal Damage Act 1971. The actus reus is destroying or damaging property belonging to another. The first issue is whether letting the air out of a tyre amounts to ‘damage’ for the purpose of the Act. Consider Lloyd (above) which was followed in Drake [1994] RTR 418. The car with a flat tyre will be rendered unfit for the use to which it would normally be put although not physically impaired in itself. Is that enough, in these circumstances, to amount to criminal damage? Consider whether the tyre itself has been damaged by the removal of air. Is it as easy to reflate the tyre as it is to sponge spittle from a coat? (See A (a Juvenile) above.) In Lloyd it was held that clamping did not damage the car as there was no intrusion into the physical integrity of the vehicle. If the actus reus was established you should then go on to consider the mens rea: this is intention or recklessness as to the destruction or damage of property belonging to another. The question makes it clear that Leila intended to let the air out of the tyres. If that amounted to damage then she would be guilty of criminal damage contrary to s.1(1). You should also consider here the possibility of liability under s.1(2) – aggravated criminal damage. If the above did not amount to criminal damage contrary to s.1(1) then it could not amount to aggravated criminal damage contrary to s.1(2). However, if she was guilty of criminal damage, consideration should be given to whether she intended by the damage to endanger life or was reckless as to whether life was endangered. The question does not give us any information as to what Leila was thinking. If, by letting the air out of the tyre, she intended to endanger life then she would be guilty of the aggravated form of criminal damage contrary to s.1(2). If that was not her intention but she foresaw a risk that life would be endangered as a result of the damage she caused then she is reckless (R v G [2004]). If it could not be proved beyond reasonable doubt that she intended or foresaw a risk that life would be endangered then she would not be guilty of the aggravated form of criminal damage contrary to s.1(2).
Olivia threw the plate at Leila Note that you have not been asked to consider assault. Always read the question and instructions carefully. This, again, would be simple criminal damage. The actus reus is established. As to the mens rea the facts of the question indicate that Olivia did not intend to break the window. If, however, she foresaw a risk of damage to property (R v G) then she has the mens rea for criminal damage. If she did not then she is not guilty. The doctrine of transferred malice cannot operate here (Pembliton).
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Matthew’s trick Matthew cannot be guilty of criminal damage contrary to s.1(1) as the house and presumably the curtains belong to him. However, he could be guilty of aggravated criminal damage contrary to s.1(2). See Leila and the tyre (above). The actus reus is the destruction or damage of property and that is established by the facts of the question. It would need to be proved that he was reckless as to the destruction of or damage to the property and following R v G if he foresaw a risk of destruction or damage then he has the mens rea. The prosecution would also need to prove that he intended or was reckless as to the endangerment to life by reason of the damage (s.1(2) and Steer).
Olivia breaks the lock and woodwork Simple criminal damage. See above. The issue here is whether she can take advantage of the defence under s.5(2)(a), (i.e. that she honestly believed the owner would have consented had he known of the circumstances). If she honestly believed this to be the case then she would be successful with the defence. If Olivia was still intoxicated and formed her belief due to that fact, it would make no difference to her defence notwithstanding that criminal damage is a basic intent crime (Jaggard and Dickinson [1980]). The other possibility is the defence of necessity. Was breaking the lock the lesser of two evils? It is unlikely that she would be successful with the defence here. See the discussion of the defence in Chapter 12.
Criminal law Chapter 17 Criminal damage
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Reflect and review In this chapter we considered the offence of criminal damage and specific defences in relation to that particular offence. Look through the points listed below: Are you ready to move on to the next chapter? Ready to move on = I am satisfied that I have sufficient understanding of the principles outlined in this chapter to enable me to go on to the next chapter. Need to revise first = There are one or two areas I am unsure about and need to revise before I go on to the next chapter. Need to study again = I found many or all of the principles outlined in this chapter very difficult and need to go over them again before I move on. Tick a box for each topic. Ready to move on
Need to Need to revise first study again
I can describe and apply to factual situations the actus reus and mens rea requirements for the offences contained in s.1 of the Criminal Damage Act 1971.
I can explain the meanings of ‘damage’, ‘destroy’, ‘property’ and ‘belonging to another’ for the purpose of offences of criminal damage.
I can state the mens rea requirements for these offences.
I can describe what defences might be available on a charge of criminal damage and in what circumstances.
I can explain the defence provided by s.5(2) of the Criminal Damage Act 1971.
I can demonstrate, by my knowledge and understanding of the following, that I have used and developed my research skills competently.
If you ticked ‘need to revise first’, which sections of the chapter are you going to revise? Must revise
Revision done
17.1
Simple criminal damage
17.2
Mens Rea
17.3
Aggravated criminal damage
17.4
Arson
17.5
Defences
Before you continue to the next topic listen again to audio presentation 18 to recap and consolidate what you have learnt.
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Feedback to activities
Contents About feedback . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 266 Chapter 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 267 Chapter 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 268 Chapter 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 272 Chapter 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 276 Chapter 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 281 Chapter 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 283 Chapter 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 284 Chapter 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 286 Chapter 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 290 Chapter 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 294 Chapter 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 298 Chapter 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 302 Chapter 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 302 Chapter 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 303 Chapter 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 309 Chapter 17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 310
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About feedback Feedback to activities is given to help you learn more about the material you have been studying. It gives you answers to – or guidance on answering – the activities. A few activities do not have feedback, because it was considered unnecessary. Please do not by-pass the work in the activities and go straight to the feedback.
Criminal law Feedback to activities
Chapter 2 Activity 2.1 a. Even if there was a sufficient element of fault on the driver’s part to make the actual killing unlawful, (actus reus of murder) he would still not be guilty of murder as it would seem that the mens rea (intention to kill or cause grievous bodily harm) is not present. b. You should be able to work this out from the feedback to (a) above.
Activity 2.2 Remember, every element of an offence must be proved by the prosecution in order to convict a defendant. a. It would appear that Susan has appropriated property belonging to another, the actus reus of theft. She ate it which indicates that she intended to permanently deprive the other of it (mens rea) As to the other element of the mens rea, i.e. dishonesty, provided the jury was satisfied that she was dishonest according to contemporary standards (and checking that nobody was looking would be evidence of dishonesty) then all the elements of theft will be made out and she will be convicted. b. It would seem that all of the elements of theft have been made out. It makes no difference that Ann got her purse back if, at the time he dishonestly appropriated it, John intended to permanently deprive Ann of it. The theft would have occurred at the time he took the purse. c. Beth did not intend to permanently deprive Amy of her book – one of the mens rea elements of theft. Therefore even if the other elements of theft were present, she would not be guilty of theft d. John is not guilty of theft as he did not appropriate property belonging to another – one of the actus reus elements of theft. It does not matter that he believed it to belong to another. (The belief however, might be sufficient to make him guilty of attempted theft but not the substantive offence.)
Activity 2.3 No feedback provided.
Activity 2.4 a. The definitions of common law offences are to be found at common law, that is, in case law and other legal writings. The definition of any statutory offence will be found in the appropriate statute. In either case, this Subject Guide will set out the definition of each offence on the syllabus with a direction as to where it is to be found. b. The Latin maxim actus non facit reum, nisi mens sit rea means that the act itself does not constitute guilt unless it was done with a guilty mind. There is no feedback for (c) or (d) as the answer will be clear from the reading. e. His view is that, because Latin phrases – like actus reus – were sometimes used as a type of shorthand for terms which could not be translated into simple English without giving the impression that they had an ordinary language certainty, we must be careful not ‘to try to achieve a spurious comprehensibility at the expense of accuracy’.
Activity 2.5 No feedback provided.
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Activity 2.6 a. The mens rea requirement for the offence of criminal damage contrary to s.1(1) of the Criminal Damage Act 1971 is intention or recklessness on the part of the defendant as to the damage or destruction of the property which belongs to another. b. The conduct element of the offence of criminal damage contrary to s.1(1) of the Criminal Damage Act 1971 is any conduct which results in the damage to or destruction of property belonging to another. Note that this could include an omission to act.
Activity 2.7 Online research By virtue of s.8(1) of the Theft Act 1968: A person is guilty of robbery if he steals, and immediately before or at the time of doing so, and in order to do so he uses force on any person or puts or seeks to put any person in fear of being then and there subjected to force.
You should have done this search by: a. Logging into Westlaw and clicking on ‘UK legislation’ in the list on the left hand side of the page. b. This would have brought you to another page containing the heading ‘Search Act or SI Provisions’. c. In ‘Term(s)’ you should have typed ‘robbery’. d. In ‘Act or SI Name’ you should have typed ‘Theft Act 1968’. e. In ‘Provision No: (section etc)’ you should have typed ‘Section 8’. f.
You should then have clicked on ‘go’ which would have brought you to a page with one result, i.e. s.8 of the Theft Act 1968 containing the definition of robbery.
Chapter 3 Activity 3.1 It might be more difficult to say that the offence of battery can be committed by omission than that of assault because while assault only requires proof that the defendant caused the other to apprehend immediate unlawful violence a battery requires the application (or infliction) of unlawful violence. ‘Cause’ is a much wider term then ‘apply’ or ‘inflict’ although you will see when you reach Chapter 9, ‘Simple non-fatal offences against the person’, that there are cases such as Mandair [1995] where the view seems to be that there is no significant difference between causing and inflicting. Where there has been a supervening fault as in Fagan [1969] the courts have found a battery on the basis of the ‘continuing act’ principle, although this type of case (see also Santana Bermudez [2004]) is likely now to be decided on the basis of the Miller principle which you will deal with later in this chapter. The offences against the person to which the CLRC recommended that liability for omissions should be restricted are: murder, manslaughter and their proposed offences of causing serious injury with intent, unlawful detention, kidnapping, abduction and aggravated abduction.
Activity 3.2 The short answer would seem to be ‘yes’. What is unclear is when the word ‘act’ in a statute will be interpreted as including an omission. In Ahmad (1986) 84 Cr App R 64 the court held that the words ‘does acts’ were not satisfied by proof of an omission whereas in Speck [1977] 2 All ER 859 it was held that a person can commit ‘an act of gross indecency’ by passively submitting to the conduct of the child. Verbs such as ‘obstruct’ and ‘falsify’ which would normally imply the doing of some act have been held to be capable of commission by omission.
Criminal law Feedback to activities
Activity 3.3 1.
The answer is yes. In Pittwood (1902) 19 TLR 37 Taunton Assizes: The defendant was a level crossing keeper for the Somerset and Dorset Railway whose job between 7am and 7pm was, for the safety of the public, to shut the gate whenever a train was passing through. One afternoon he left the gate open and a hay cart which was crossing the railway line was hit by a train, causing the death of one person and the serious injury of another. Pittwood was charged with and convicted of manslaughter. The railway company had assumed the liability of protecting the public whenever they crossed the line. Pittwood’s contract with the railway company gave rise to duties to those who would be affected by his negligent performance of that contract. He was grossly and criminally negligent as he had been paid to keep the gate shut and protect the public.
2. In the case of Miller [1983] 2 AC 161 HL the defendant was a tramp who was squatting in an empty house. He fell asleep on a mattress without having extinguished his cigarette. He awoke to find the mattress on fire. He moved to the next room and went back to sleep. The house caught fire and £800 worth of damage was caused. He was convicted of arson (criminal damage by fire: ss.1(1) and 1(3) of the Criminal Damage Act 1971). The Court of Appeal dismissed his appeal against conviction and he appealed to the House of Lords. The House of Lords upheld his conviction. Lord Diplock said: I see no rational ground for excluding from conduct capable of giving rise to criminal liability conduct which consists of failing to take measures that lie within one’s power to counteract a danger that one has oneself created, if at the time of such conduct one’s state of mind is such as constitutes a necessary ingredient of the offence. I venture to think that the habit of lawyers to talk of ‘actus reus’, suggestive as it is of action rather than inaction, is responsible for any erroneous notion that failure to act cannot give rise to criminal liability in English law.
3. It would seem so. Husbands and wives owe a duty to each other, parents owe a duty to their children (see The Children and Young Persons Act above), and it is likely that under the common law children who are capable of so doing owe a similar duty to their parents and possibly to each other (see Gibbins and Proctor [1918]; Instan [1893]). Note again that Gibbins and Proctor confirms that murder is an offence which can be committed by omission. 4. Again the answer is yes. As Brett J in R v Nicholls (1875) 13 Cox 75) said: If a grown up person chooses to undertake the charge of a human creature helpless either from infancy, simplicity, lunacy or other infirmity, he is bound to execute that charge without… negligence.
In Stone and Dobinson [1977] 1 QB 345: Stone, who was 67, was almost blind, partially deaf and of low intelligence, lived with Dobinson and his mentally subnormal son. Dobinson, aged 43, was described as ‘inadequate’ and ‘ineffectual’. Stone’s younger sister Fanny came to live with them. She suffered from anorexia nervosa. She stayed in her room but would occasionally go the kitchen for food when Stone and Dobinson were out. Over the two years she lived with them she became progressively more ill. The defendants did try to help her, for example by trying to find Fanny’s doctor although Fanny would not tell them his name. Neither defendant knew how to use a telephone. Mrs Dobinson and a neighbour washed Fanny who by that time was confined to bed and lying in her own excrement. The neighbour tried unsuccessfully to get a local doctor to visit Fanny. A social worker visited the house occasionally to see Stone’s son but nobody was informed of Fanny’s condition. Fanny finally died.
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Activity 3.4 a. Dr Usher said: If, two weeks prior to my seeing the body she had gone into hospital there is a distinct possibility that they may have saved her; and three weeks earlier the chances would have been good. If her condition on 19 July was no worse than that described by Mrs Wilson, then her survival would have been probable.
b. The Crown alleged that in the circumstances the appellants had undertaken the duty of caring for Fanny who was incapable of looking after herself, that they had, with gross negligence, failed in that duty, that such failure had caused her death and that they were guilty of manslaughter. c. The matters, according to Lane LJ, on which the jury must be satisfied before they could convict of manslaughter were: (1) that the defendant undertook the care of a person who by reason of age or infirmity was unable to care for himself; (2) that the defendant was grossly negligent in regard to his duty of care; (3) that by reason of such negligence the person died. d. The first ground of appeal made by counsel for the appellants was that there was ‘no, or no sufficient, evidence that the appellants, or either of them, had chosen to undertake the care of Fanny’. e. The court rejected that proposition. The reasons in the words of Lane LJ were: ‘Whether Fanny was a lodger or not she was a blood relation of the appellant Stone; she was occupying a room in his house; Mrs Dobinson had undertaken the duty of trying to wash her, of taking such food to her as she required. There was ample evidence that each appellant was aware of the poor condition she was in by mid-July.’ f.
The one criticism Lane LJ thought might be made in respect of the judge’s direction to the jury was that it was too favourable to the defence.
g. The appellants’ appeal against their convictions for manslaughter failed. Their convictions were upheld but Stone’s sentence of imprisonment was reduced as the original sentences had not, in the opinion of the court, accurately reflected the difference in culpability between the two appellants.
Activity 3.5 It would seem that it can. In Airdale NHS Trust v Bland [1993] the House of Lords ruled that medical treatment which artificially prolongs a person’s life is no longer appropriate where it has no therapeutic purpose. Lord Goff said: I am of the opinion that there is… no absolute obligation upon the doctor who has the patient in his care to prolong his life, regardless of the circumstances.
Therefore, although in these circumstances, discontinuance of treatment would be an omission (see above) as the doctor is no longer under a legal duty to treat there could be no breach of duty and thus no possibility of criminal liability. It is likely that it can in other circumstances. For example, although parents owe duties to their children, these duties will change as the child grows and there might be circumstances where there is no duty at all. In all situations, it will depend upon the circumstances.
Criminal law Feedback to activities
Activity 3.6 a. Many of the cases you have considered confirm that manslaughter is an offence which can be committed by omission. There is no need at this stage to discuss which type of manslaughter or the elements of that offence. All you have been asked to consider is what factors the court might take into account when determining whether Luke was under a duty to act and, if he was, what factors the court would take into account in determining whether or not he was in breach of that duty. i.
Duty to act
Luke has not committed a positive act in respect of John and there is no general liability for omissions under the law of England and Wales. Note that the question tells us that their relationship is one of friendship so there is no statutory duty as there is, for example, with parents and children. It does confirm, however, that Luke is not a stranger. The factors a court might consider in determining whether Luke was under a duty to John would include the following: Lewin v CPS. Although a decision by the CPS not to prosecute was upheld, this was because, among other things, the duty to the friend had not continued because death was not reasonably foreseeable. This tells us that, under the appropriate circumstances, friends will owe each other a duty to act. Given the fact that Luke’s food was mouldy and should have been thrown away, the court might consider the Miller principle which applies where a person has created a dangerous situation and has become aware of it but has failed to take steps to rectify it. This can give rise to criminal liability if the defendant has failed ‘to take measures which lie within [his] power to counteract’ (Lord Diplock in Miller). However, we do not know whether Luke was aware (or perhaps should have been aware) of the situation. Could it be said that by inviting him to stay in his house Luke has voluntarily undertaken a duty towards John? Consider the decision in Stone and Dobinson. What must be factored into this equation is John’s autonomy. John did not believe in doctors. He did not want to be treated. Luke was reluctant to do that which John did not want him to do. In Ms B v An NHS Hospital the court agreed with Ms B that the doctors’ refusal to disconnect a life-support machine to which she was connected and from which she wished to be disconnected and allowed to die was an unlawful trespass. Would it make a difference that John was in a coma and therefore not competent to make his present wishes known? John had, when competent, expressed his views about medical treatment just as Ms B had. Might that influence the court? It should be clear to you by now that there is no easy and definitive answer to this part of the question. If you were answering this as part of an examination question you would consider and explore the above and conclude this part of your answer by saying, ‘if the court decided that Luke was under a duty to act in respect of John, then…’. Thus you could move smoothly to the issue of breach of duty, which is the next issue to be determined. ii. Breach of duty The scope of a person’s duty to act will be determined by the circumstances. Where a duty to act exists, it is not an onerous duty. The issue is whether a defendant who was under a duty to act has discharged that duty to a reasonable standard. If Luke was under a duty to act, what he did or did not do in discharging that duty will be judged according to how the court considers a reasonable person would have acted under the particular circumstances. It is an objective test. Even if Luke thought he was doing his best, if that was an ‘incompetent best’ it will not be sufficient to discharge his duty (Stone and Dobinson). Arguably, it would not have been difficult for Luke to call the ambulance service. That would have been sufficient to discharge his duty.
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b. Susan i.
Was Susan under a duty to act?
The facts of the question indicate that Susan and Jane were strangers. If that is the case, then Susan would not be under a legal duty to act. It may be that many people would consider her to have been under a moral duty, but that is all. Breach of a moral duty cannot of itself attract criminal liability. Although she is a doctor that is her job; it does not impose on her any special general duty. Of course, if Susan and Jane were not strangers then the position might be different but we cannot hypothesise here as there are likely to be too many variables. ii. Might your answer differ if Jane was a patient of Susan? Doctors are under a duty towards their patients. There are a number of civil and criminal authorities for this proposition. One criminal case which confirms this is the case of Adomako. Therefore it is likely that a court would hold that Susan was under a duty to act towards Jane but this might also depend upon the circumstances. For example, if she did not know it was a patient of hers lying in the road and it was not reasonable to expect her to have known, then a court is very unlikely to rule that she was under a specific duty at that particular time. However, if she was deemed to have been under a duty it is likely that she would also be deemed to have been in breach of that duty.
Activity 3.7 a. The property must belong to another for the offence to lie. b. The property must belong to another for the offence to lie. c. Lack of consent to the penetration. If there is true consent there can be no rape. d. Human being. It must be a human being who has been unlawfully killed. e. Being married. The defendant must have already been married when he married the victim for this offence to lie.
Activity 3.8 In the case of Larsonneur (1933) 24 Cr App R 74. Ms Larsonneur, a French citizen, was brought to the United Kingdom from Ireland against her will by Irish police. On disembarking she was arrested and charged under the Aliens Order 1920 of being found in the country as an alien to whom leave to land in the UK had been refused. She was convicted despite the fact that she had only been ‘found’ in the country because she had been brought here in police custody. More recently in Winzar v Chief Constable of Kent (1983) The Times, 28 March the defendant was convicted of being found drunk on a highway contrary to the Licensing Act 1872. The defendant was drunk and slumped on a chair in a corridor within the hospital. The police were called and removed him from the corridor to the street whereupon they charged him with the offence.
Chapter 4 Activity 4.1 No feedback provided.
Activity 4.2 1.
The appellants had been convicted of constructive manslaughter.
2. The issue for the Court of Appeal was whether the appellants’ convictions for manslaughter should be upheld. They had been convicted of constructive manslaughter which requires proof of an unlawful and dangerous act which causes death. The issue for the court was whether her death was attributable to the defendant’s conduct – was it the imputable or legal cause of her death?
Criminal law Feedback to activities 3. The Court of Appeal quashed the appellants’ convictions for manslaughter. Although the whole incident was the ‘but for’ cause of the girl’s death, in that had it not been for what they did she would not have died at that time, it was not the imputable cause of her death. That was a combination of her heart condition and the unnecessary exertion. According to the court, it would be an ‘unwarranted extension’ of the law to say that if D committed an unlawful act but for which V would not have died, D is without more criminally liable for the death of V.
Activity 4.3 Dalloway was found not guilty of manslaughter at trial, the jury having been directed by Erle J that if they thought that if the defendant had been holding the reins and had used them the child would have been saved they must find him guilty but if they thought that, under the circumstances, this would not have saved the child, then they must acquit.
Activity 4.4 Online research In Blaue it was decided that the defendant must take his victim as he finds him and that this includes the whole person, not just the physical person. This does not depend upon any notion of reasonable foreseeability. Blaue stabbed the victim, a Jehovah’s Witness, who in accordance with her religion refused a blood transfusion and died. Although her life would have been saved had she had the transfusion and although the refusal was not reasonably foreseeable, her death was held to be attributable to the defendant’s conduct. Although he had intended to cause grievous bodily harm (which is sufficient mens rea for murder, see Chapter 7) Blaue was found guilty of manslaughter and not murder as he had successfully pleaded the defence of diminished responsibility. Had this defence not been available to him he would have been convicted of murder as the actus reus of the two offences are identical and the issue of causation is relevant to the actus reus of an offence. Cases such as Roberts and Williams and Davis concern a decision taken by the victim in a moment of panic when he is under threat from the defendant. Here, the issue of reasonable foreseeability is relevant. Where the victim’s conduct was reasonably foreseeable it will not break the chain of causation. Where, however, the victim’s conduct was ‘daft’ and therefore not reasonably foreseeable it may break the chain of causation between the defendant’s conduct and the result. This seems to be in conflict with the decision in Blaue. Both Roberts and Williams and Davis hold that a response which is not reasonably foreseeable will break the chain of causation. In Blaue, on the other hand, as we have seen, the fact that the refusal was not reasonably foreseeable did not prevent attribution of the death to D. Note that in an ‘escape’ case the jury must take into account that the victim was acting in the ‘agony of the moment’ when determining whether the victim’s conduct was within the range of responses which might be expected from a victim placed in his situation.
Activity 4.5 a. The direct conflict of expert testimony arose because the pathologist who had conducted the post-mortem testified that death had been caused by ‘cardiorespiratory arrest due to gunshot wounds to the abdomen and leg’ whereas the defendant’s expert witness testified that death had been due to the failure of the doctors to recognise the reason for his sudden onset and continued breathlessness after 8 February and the severe respiratory obstruction. b. He directed the jury that even if the medical treatment was incompetent and negligent, that did not affect the defendant’s responsibility for the victim’s death. c. The question for the Court of Appeal in this case was whether the trial judge had correctly applied the principles of causation.
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d. i. ‘Assuming factual causation to be present, the defendant will remain liable despite intervening causes if, at the time of the victim’s death, the original wounds or injuries inflicted by him were still an “operative cause of that death”’. ii. ‘Even where the original injuries are no longer “operative”, the defendant will still not escape responsibility for the ensuing death if it was reasonably foreseeable that death would result from his acts.’ iii. The defendant must take his victim as he finds him. e. Because there was new evidence that at the time of the death, the original wound had almost healed and that death was brought on by the continued administration of a drug to which the victim was allergic – and known to be so allergic. This treatment was described as being ‘palpably wrong’ and ‘not normal’. f.
The Court of Appeal did not think that the summing up, taken as a whole, had done no injustice to the appellant although the trial judge had been wrong to mention ‘recklessness’ in the context of the doctors.
g. The five points are set out on page 581 of the article. h. Although the author does not disagree with the decision in Evans and Gardiner (No. 2) he considers the reasoning to be questionable in that ‘a wound is not an operative cause of death merely because it causes some other condition which in turn brings about the death’. In his view, if this was the case, there would be no need for the principle of foreseeability. i.
One of foreseeability.
Activity 4.6 It might be of interest you that Lord Hoffmann pointed out in Environmental Agency (formerly National Rivers Authority) v Empress Cars (Abertillery) Ltd [1998] 1 All ER 481 HL common sense is not a sufficient guide to resolving causation issues and that legal principles are involved. Perhaps you think that the decision would have been a little more sensible had some common sense been applied! Nonetheless when you are answering questions you must apply the rules. a. The issue here is whether Betty’s death should be attributable to John’s conduct or whether her own voluntary conduct broke the chain of causation. There was no wound as such which could be considered to be an operating and substantial cause of death. But should a rapist take his victims as he finds them as in Blaue? Consider again the case of Dear [1996]. The decision leaves open the question as to whether it could be said in a situation such as this that John’s act caused the act that caused Betty’s death. Equally, it could be argued that suicide (something that might be considered to be a voluntary act) six months after a rape is not reasonably foreseeable and would thus break the chain of causation. Nevertheless the court in Dear seemed to view the fact that the victim’s conduct in that case was unforeseeable as immaterial. There is no definitive or easy answer to this question: you must examine the, sometimes conflicting, principles. b. This is a very straightforward question based on the facts of Roberts where it was held that where the defendant has frightened the victim to the extent that the victim has killed or injured himself trying to escape the danger then provided the victim’s reaction was not so ‘daft’ as to make it the victim’s own voluntary act, it will not break the chain of causation. Therefore if the jury is of the view that Sabina’s response was within the range of responses which might be expected from a victim in her position, bearing in mind that she was acting in the ‘agony of the moment’ (Williams and Davis) then Freddie may be criminally responsible for her injury. c. Here the issue is whether Anna can be held to be criminally responsible for the death of Iqbal or whether the nurse’s conduct was a new intervening act which will break the chain of causation between Anna’s conduct and Iqbal’s death.
Criminal law Feedback to activities Anna’s conduct is the sine qua non of Iqbal’s death. But for her stabbing him he would still be alive. However, this factor alone will not make her criminally responsible. The question now to be determined is whether her conduct was also the legal cause. You will remember that in Malcherek where the doctors switched off the victim’s life support, this did not break the chain of causation. The victim had, by a series of tests, been found to be brain stem dead before the ventilator was turned off. The defendant was liable as the injuries he inflicted were an operative and substantial cause of death. Anna’s case is different, however, in that the nurse, without authorisation, took it upon herself to switch off the machine. This was not medical treatment so the case of Cheshire would not be directly relevant. In Pagett it was said that a free, deliberate and informed intervention by a third party could have the effect of relieving a defendant of criminal responsibility. The nurse’s intervention was free, deliberate and informed and is likely to break the chain of causation between Anna’s conduct and Iqbal’s death. Note that even if, on the basis of the nurse’s intervening voluntary act, it was decided that Anna was not criminally liable for Iqbal’s death she would, nevertheless, be likely to be found guilty of an offence contrary to s.20 of the Offences Against the Person Act 1861 or, depending upon her mens rea, s.18 of the Offences Against the Person Act 1861. Section 18 carries a maximum penalty of life imprisonment whilst the maximum sentence on conviction for a s.20 offence is five years. If she intended to kill Iqbal she would be guilty of attempted murder, for which the maximum penalty is life imprisonment. d. As with Anna, above, the injuries inflicted by Lee on Sam could be said to be the factual cause of Sam’s death. The issue is whether they are the legal cause of death. Again, this is not medical treatment as such but one difference between the two questions is that in Anna’s case the nurse’s conduct was advertent – she deliberately killed Iqbal – whereas in Lee’s case the doctor’s infection was inadvertently passed on to Sam. However, it does not necessarily follow that this, in itself, will determine the outcome, although generally where intervening conduct is free, deliberate and informed it is far more likely to break the chain of causation. What will fall to be decided here is whether or not the injuries were, or may have been, merely the setting in which what happened at the hospital caused Sam’s death (Jordan; Smith). If that is all they were, Lee is unlikely to be criminally liable for Sam’s death. In Gowans the defendants were liable for the death of the victim. The Court of Appeal held that the jury were entitled to conclude on the basis of the evidence that the attack necessitated treatment which had rendered the victim vulnerable to the infection and therefore that the death was attributable to the acts of the defendant. However, the contraction of an infection under the circumstances in Gowans could be said to be reasonably foreseeable. The Court of Appeal in that case also said that if the hospitalised victim of an attack contracted a fatal infection ‘purely by chance’ – for example by breathing in airborne germs – the attack would merely amount to the setting in which another cause operated. In those circumstances, the death of the victim would not be attributed to the acts of the assailant. Therefore, if, in this case, the jury conclude that Lee’s attack was merely the setting in which he contracted the infection that caused Sam’s death then he will not be liable for the death. Note that, as with Anna above, even if Lee is held not to be liable for Sam’s death he is likely to be prosecuted for a range of non-fatal offences depending upon the extent of the injuries he inflicted on Sam (see Chapters 9 and 10) and, if it can be proved that he intended to kill then he would face a charge of attempted murder (see Chapter 14). However, please also note that for the purposes of discussing the issue of causation in relation to these facts you were not expected to speculate and hypothesise as to the actual nature of the injuries.
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e. This is another straightforward question based on the facts of Blaue. The issue is whether Ivan’s voluntary refusal of a blood transfusion breaks the chain of causation between Natalia’s act and his death. Such a refusal would not normally be reasonably foreseeable but, applying the principle in Blaue, Natalia must take her victim as she finds him and that includes the whole and not just the physical person, so would include Ivan’s beliefs. Ivan’s refusal of blood, therefore, would not break the chain of causation between Natalia’s act and his death and she would thus be criminally responsible for his death.
Chapter 5 Activity 5.1 a. The mens rea for criminal damage is expressed in s.1 of the Criminal Damage Act 1971 as ‘intention’ or ‘recklessness’. Therefore the prosecution must prove that the defendant either intended or was reckless as to the destruction or damage of the property belonging to another. b. The mens rea is expressed in the alternative as ‘intention’ or ‘recklessness’. It follows from this that recklessness is sufficient mens rea. Criminal damage contrary to s.1(1) of the Criminal Damage Act is therefore a basic intent crime. c. The defendant’s conduct must cause the destruction or damage to the property. It is, therefore, a result crime. d. Theft is a specific intent crime. In addition to the basic mens rea of ‘dishonesty’ in relation to the actus reus of the appropriation of the property belonging to another (discussed further in Chapter 16), in order to convict the defendant the prosecution must also prove that he ‘intended’ to permanently deprive the other of the property. ‘Intention to permanently deprive’ is a form of mens rea in relation to a consequence which goes beyond the actus reus of theft. The defendant does not have to achieve that consequence, it is enough that it was what he intended. Theft is therefore an ulterior intent crime.
Activity 5.2 1.
Woollin had lost his temper and thrown his three-month-old son onto a hard surface. His son sustained a fractured skull and died.
2. Woollin was charged with murder. 3. The issue was whether the he, nevertheless, had the intention to cause serious harm. 4. The trial judge had directed the jury that: If they were satisfied that the appellant ’must have realised and appreciated when he threw that child that there was a substantial risk that he would cause serious injury to it, then it would be open to you to find that he intended to cause injury to the child and you should convict him of murder’.
5. Woollin was convicted of murder. 6. He appealed to the Court of Appeal who upheld his conviction. 7. The Court of Appeal certified the following question as one of general importance: In murder, where there is no direct evidence that the purpose of a defendant was to kill or to inflict serious injury on the victim, is it necessary to direct the jury that they may only infer an intent to do serious injury, if they are satisfied (a) that serious bodily harm was a virtually certain consequence of the defendant’s voluntary act and (b) that the defendant appreciated that fact?
8. Woollin’s conviction for murder was quashed, a conviction for manslaughter substituted and the matter remitted to the Court of Appeal to pass sentence.
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Activity 5.3 a. As Susan knew that grievous bodily harm was a virtually certain consequence of her conduct, the jury may find that she intended it (Woollin [1998]). b. The trial judge in Woollin directed the jury in terms of foresight of a ‘substantial risk’ being sufficient to amount to intention. This was held to be a misdirection as it blurred the distinction between intention and recklessness. Susan would not be held to have intended grievous bodily harm. c. Although the question makes it clear that Susan did not want the baby to suffer grievous bodily harm, her desire is irrelevant to the issue of intention. If, whilst hoping the baby would come to no harm, she knew that grievous bodily harm was a virtually certain consequence of her conduct (barring some unforeseen intervention) then she will be held to have intended the harm. If, however, she did not foresee it as a virtually certain consequence of her conduct, then she will not be held to have intended it.
Activity 5.4 The mens rea for murder is intention to kill or cause grievous bodily harm. The question states clearly that John had a direct intent to kill Fred when he shot at the rock. Statistical probabilities are irrelevant to the issue of direct intent. John had the mens rea for murder.
Activity 5.5 1.
‘Can a defendant properly be convicted under s.1 of the Criminal Damage Act 1971 on the basis that he was reckless as to whether property was destroyed or damaged when he gave no thought to the risk but, by reason of his age and/or personal characteristics the risk would not have been obvious to him, even if he had thought about it?’
2. The appeal turned on the meaning of ‘reckless’ in s.1(1) of the Criminal Damage Act 1971. It was a question on which the House of Lords had ruled in Caldwell [1982] 3 AC 341 and which had been affirmed by the House in later decisions. The House had again been asked, in the instant case, to reconsider that ruling. 3. The judge said: ‘The ordinary reasonable bystander is an adult. He does not have expert knowledge. He has got in his mind that stock of everyday information which one acquires in the process of growing up.’ 4. He directed the jury that: ‘… [N]o allowance is made by the law for the youth of these boys or their lack of maturity or their own inability, if such you find it to be, to assess what was going on.’ In addition, their good characters were ‘irrelevant’. They should leave behind everything they knew about the two young boys because the test was what would have been perceived by the ordinary, reasonable bystander. 5. The judge was ‘quite satisfied’ that the boys neither intended to burn the building down nor were they ‘subjectively’† reckless as to the building being burnt down. The judge had (correctly as subsequently confirmed by both the Court of Appeal and the House of Lords) directed the jury in accordance with the test in Caldwell. Therefore, he said that the basis upon which he proposed to sentence them was: ‘… that the risk they created would have been perceived by an adult; by a reasonable bystander as carrying with it a risk of damage to the building.’ As Lord Bingham pointed out, ‘The judge expressed regret at the law he had felt bound to apply’. 6. The judge made a one year supervision order in the case of each of the boys.† 7. He said: ‘…[T]he court interpreted “maliciously” as requiring proof of intention, but were inclined to accept that intention could be shown by proof of reckless disregard of a perceived risk.’
†
Subjective recklessness requires proof that the defendant himself was aware of the risk.
†
A supervision order is a sentence which requires the young person to be supervised by a member of the Youth Offending Team and can be given for up to three years. Supervision orders were introduced by the Children and Young Persons Act 1969 and have been amended by the Crime and Disorder Act 1998. Note that the maximum penalty for arson (criminal damage by fire) is life imprisonment.
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8. ‘In any statutory definition of a crime, malice must be taken not in the old vague sense of wickedness in general but as requiring either (1) An actual intention to do the particular kind of harm that in fact was done; or (2) recklessness as to whether such harm should occur or not (i.e. the accused has foreseen that the particular kind of harm might be done and yet has gone on to take the risk of it). It is neither limited to nor does it indeed require any ill will towards “the person injured”.’ 9. It was ‘intent to do the forbidden act or recklessness in relation to its foreseen consequences’. According to Lord Bingham the working paper did not suggest that the law as then understood was thought to be leading to unjustified acquittals. He quoted Brian Hogan, who wrote [1969] Crim LR 283: What is implicit in ‘maliciously’ in the present law will appear explicitly as intention or recklessness in the new code. No doubt the meanings ascribed to intention and recklessness in the codification of the general principles will be applied mutatis mutandis to offences of damage to property.
10. ‘A man is reckless in the sense required when he carries out a deliberate act knowing that there is some risk of damage resulting from that act but nevertheless continues in the performance of that act.’ 11. In Parker (Daryl) the Court of Appeal modified the Briggs definition to: ‘A man is reckless in the sense required when he carries out a deliberate act knowing or closing his mind to the obvious fact that there is some risk of damage resulting from that act but nevertheless continuing in the performance of that act.’ 12. ‘A person cannot, in any intelligible meaning of the words, close his mind to a risk unless he first realises that there is a risk; and if he realises that there is a risk that is the end of the matter.’ 13. The court thought it fair to assume that those who were responsible for drafting the 1971 Act were intending to preserve the legal meaning of ‘recklessness’ as described by Kenny and expressly approved in Cunningham. 14. According to Lord Bingham, the court in Stephenson suggested that a distinction was to be drawn between crimes requiring proof of specific intent and those, such as offences under s.1(1) of the 1971 Act, involving no specific intent. The court in that case said: ‘Accordingly it is no defence under the Act of 1971 for a person to say that he was deprived by self-induced intoxication of the ability to foresee or appreciate an obvious risk.’ 15. Lord Diplock said the ordinary meaning of reckless: surely includes not only deciding to ignore a risk of harmful consequences resulting from one’s acts that one has recognised as existing, but also failing to give any thought to whether or not there is any such risk in circumstances where, if any thought were given to the matter, it would be obvious that there was.
16. He said that the jury should be directed that such a person was: … ‘reckless as to whether any such property would be destroyed or damaged’ if (1) he does an act which in fact creates an obvious risk that property will be destroyed or damaged and (2) when he does the act he either has not given any thought to the possibility of there being any such risk or has recognised that there was some risk involved and has nonetheless gone on to do it.
17. Section 8 of the Criminal Justice Act 1967 provides that: A court or jury, in determining whether a person has committed an offence (a) shall not be bound in law to infer that he intended or foresaw a result of his action by reasons only of its being a natural and probable consequence of those actions; but (b) shall decide whether he did intend or foresee that result by reference to all the evidence, drawing such inferences from the evidence as appear proper in the circumstances.
18. Lord Diplock added: It is for the jury to decide whether the risk created by the manner in which the vehicle was being driven was both obvious and serious and, in deciding this, they may apply the standard of the ordinary prudent motorist as represented by themselves.
Criminal law Feedback to activities 19. They inferred that Lord Diplock had meant a risk which was obvious to the particular defendant. The defendant (C) was a 14-year-old girl of low intelligence and the justices acquitted her because they found that she had given no thought at the time to the possibility of there being a risk that the shed and contents would be destroyed, and this risk would not have been obvious to her or appreciated by her if she had thought about the matter. 20. The prosecutor’s appeal was allowed. Glidewell J accepted the submission that: if the risk is one which would have been obvious to a reasonably prudent person, once it has also been proved that the particular defendant gave no thought to the possibility of there being such a risk, it is not a defence that because of limited intelligence or exhaustion she would not have appreciated the risk even if she had thought about it.
21. Although there was a petition for leave to appeal against the decision of the Divisional Court of the Queen’s Bench, the petition was dismissed by an appeal committee. 22. The Court of Appeal in Stephen (Malcolm R) decided that if the House of Lords had wished to modify the Caldwell principle so as to take account of, for example, a defendant’s age the opportunity had existed in Elliott v C and it had not been taken. Therefore – although expressing concern at the Caldwell principle – the court had little doubt that, on the facts of the case, the answer would have been the same even if the jury had been able to draw a comparison with what a boy of the defendant’s age would have appreciated. 23. The starting point, Lord Bingham said, was to ascertain what Parliament meant by ‘reckless’ in 1971 (i.e. when it enacted the Criminal Damage Act). He said: ‘It cannot be supposed that by “reckless” Parliament meant anything different from the Law Commission.’ Lord Bingham’s view was that the Law Commission’s meaning was made plain both in its Report (Law Com No. 29) and in Working Paper No 23. He thought that those materials revealed a very plain intention to replace the old-fashioned and misleading expression ‘maliciously’ by the more familiar expression ‘reckless’ but to give the latter expression the meaning which R v Cunningham and Professor Kenny had given the former.
24. In treating the above authority as irrelevant to the construction of ‘reckless’ the majority in Caldwell made a ‘clearly demonstrable error’. No relevant change in the mens rea necessary for proof of the offence was intended, and in holding otherwise the majority misconstrued s.1 of the Act.
25. i. Lord Bingham said: … [I]t is a salutory principle that conviction of a serious crime should depend on proof not simply that the defendant caused (by act or omission) an injurious result to another but that his state of mind when so acting was culpable. This, after all, is the meaning of the familiar rule actus non facit reum nisi mens sit rea.
Although it was clearly blameworthy to take an obvious and serious risk of causing injury to another, it was not clearly blameworthy where (for reasons other than self-induced intoxication) a person genuinely did not perceive the risk. Although such a person might be accused of stupidity or of lacking imagination, that should not expose him to conviction of a serious crime and the risk of punishment. ii. The model direction formulated by Lord Diplock in Caldwell was capable of leading to obvious unfairness, as exemplified by the instant case and the unease felt by the judge and the jury. It is unfair to convict a person (especially a child) on the basis of what someone else would have apprehended where that person did not apprehend it themselves. Neither was the problem cured by the imposition of a nominal penalty on conviction.
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26. Lord Bingham answered the question ‘obliquely’ basing his answer on clause 18 (c) of the Criminal Code Bill as follows: A person acts recklessly within the meaning of s.1 of the Criminal Damage Act 1971 with respect to: i. a circumstance when he is aware of a risk that it exists or will exist; ii. a result when he is aware of a risk that it will occur; and it is, in the circumstances known to him, unreasonable to take the risk.
Activity 5.6 1.
The appellants, in accordance with a pre-arranged plan and intending to kill, struck their victim. Mistakenly believing the victim was dead, they rolled him over a cliff to make it appear as though the death was an accident. It was established that the victim died from exposure and not from the original blows.
2. The Judicial Committee of the Privy Council. 3. It was argued in the Privy Council that the appellants could not be guilty of murder as at the time they had the mens rea for murder their conduct did not cause the death of the victim – i.e. there was no actus reus – and at the time their conduct did cause death, they did not have the mens rea for murder as they thought they were disposing of a corpse. 4. The Privy Council upheld the appellants’ convictions for murder. Lord Reid said: It appears to their Lordships impossible to divide up what was really one transaction… There is no doubt that the accused set out to do all these acts in order to achieve their plan, and as parts of their plan; and it is too refined a ground of judgment to say that, because they were under a misapprehension at one stage and thought that their guilty purpose had been achieved before, in fact, it was achieved, therefore they are to escape the penalties of the law.
Activity 5.7 1.
In the case of Church [1966] 1 QB 59 there was no pre-arranged plan as there had been in Thabo Meli. During an argument the appellant hit and attempted to strangle a woman, who fell unconscious. The appellant panicked and, having given her only a cursory examination, thought she was dead so he threw her into a river where she drowned.
2. He was convicted of manslaughter, having been acquitted of murder. 3. His conviction was upheld by the Court of Criminal Appeal. The court extended the ‘series of acts’ principle in Thabo Meli to a case of manslaughter where there was no antecedent plan. The judge should have directed the jury that they were entitled to regard the conduct of the appellant in relation to the death of the victim as constituting throughout a series of acts which culminated in her death.
Activity 5.8 a. ‘If an accused kills another by one or other of two or more different acts each of which, if it caused the death, is a sufficient act to establish manslaughter, is it necessary in order to found a conviction to prove which act caused the death?’
Criminal law Feedback to activities b. The answer to the question was ‘No’. ‘It is not necessary to found a conviction to prove which act caused the death.’ c. The jury should have been directed to ask themselves the following questions: i. ‘Are we satisfied beyond reasonable doubt that the deceased’s “fall” downstairs was the result of an intentional act by the accused which was unlawful and dangerous?’ If no they should acquit. If yes – then they should ask themselves a second question: ii. ‘Are we satisfied beyond reasonable doubt that the act of cutting the girl’s throat was an act of gross criminal negligence?’ If no they should acquit. If yes – then they should convict of manslaughter. d. If the jury was not satisfied on both points, then there was a 50 per cent chance that it was an accidental death. If that was the case then the defendant should be acquitted. (Remember the standard of proof in a criminal trial is ‘beyond reasonable doubt’.) The question as to whether Thabo Meli applies to manslaughter was left open in this case although the case of Church suggested that it did. If Thabo Meli applies to manslaughter then assuming that, in the instant case, it was all one transaction.
Activity 5.9 Online research a. There is a presumption of law that mens rea is required before a person can be held guilty of a criminal offence. b. The presumption is particularly strong where the offence is ‘truly criminal’ in character. c. The presumption applies to statutory offences, and can be displaced only if it is clearly or by necessary implication the effect of the statute. d. The only situation in which the presumption can be displaced is where the statute is concerned with an issue of social concern; public safety is such an issue. e. Even where a statute is concerned with such an issue, the presumption of mens rea stands unless it can also be shown that the creation of strict liability will be effective to promote the objects of the statute by encouraging greater vigilance to prevent the commission of the prohibited act.
Chapter 6 Activity 6.1 a. No. Although Lord Lane acknowledged that the medical profession recognise brain stem death as the ‘true test of death’ the court did not think it necessary to give it legal backing. b. It was clear from the medical facts that, up to the time of conventional death, that is, after the life support machinery was disconnected, the original injuries inflicted by the appellants were operating and substantial. They were therefore legal causes of the victims’ deaths. The doctors’ decision to discontinue treatment and switch off the machines was a bona fide one given by competent practitioners following conventional procedures and therefore did not break the chain of causation between the initial injury and the death.
Activity 6.2 a. The four medical experts whose evidence is referred to were not unanimous in their responses to this question. Only the cardiologist was certain that Mary would have been born dead if she had not been joined to Jodie. b. Although they were not sufficiently strong to maintain life, Mary had separate functioning organs and she was independent of her mother. Thus, although she was incapable of separate existence, she was a separate individual.
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c. Yes. The notion that children, like conjoined twins, who suffered from disability or handicap were ‘monsters’ was repugnant. The twins had an equal right to life and were entitled to the protection of the criminal law to the same extent as other human beings.
Activity 6.3 If the offender has already been convicted of an offence in respect of the attack, say causing grievous bodily harm with intent, or if there is a long period of time between the attack and the death, it may be oppressive for the offender to face the prospect of a further prosecution and so s.2 of the Act provides that consent of the Attorney General is required where: i.
the injury alleged to have caused death was sustained more than three years before the death occurred or
ii. where the accused has previously been convicted of an offence committed in circumstances alleged to be connected with the death.
Activity 6.4 Lord Justice Sachs said that as the defendant lacked the mens rea for a criminal assault or battery he had not committed an unlawful act ‘in the criminal sense of the word’. Constructive manslaughter could not be established without proving the mental element of assault. A similar approach was taken in Jennings [1990]. Following these decisions there can be no ‘unlawful act’ unless the defendant has committed the actus reus of an identified offence with the requisite mens rea for that offence.
Activity 6.5 a. In R v Kennedy the House of Lords considered the following certified question: When is it appropriate to find someone guilty of manslaughter where that person has been involved in the supply of a class A controlled drug, which is then freely and voluntarily self-administered by the person to whom it was supplied, and the administration of the drug then causes his death?
b. The answer to the certified question is: ‘In the case of a fully informed and responsible adult, never.’
Activity 6.6 a. Lord Justice Judge observed that the requirements of clarity and certainty, especially in the criminal law, are well established and predate the incorporation of the ECHR. He commented that vague laws were undesirable and may make it impossible to identify the prohibited conduct and that the incorporation of the ECHR, while providing a ‘salutary reminder’, has not ‘effected any significant extension of or change to the “certainty” principle as long understood at common law’. However, the requirement, he said, is for sufficient and not absolute certainty and there is a difference between uncertainty in law and uncertainty in the application of rules which are in themselves clear. Lord Justice Judge pointed out that the criminal law frequently requires juries to evaluate the conduct of a defendant. For example it is for the jury to decide whether force used in selfdefence was ‘reasonable’. Tests of this sort inevitably introduce an element of uncertainty in their application – standards may vary from one jury to another – but the law would be extremely rigid without them. The fact that juries may vary in their evaluation of the conduct of the defendant and in their assessment of whether it demonstrated such a high degree of negligence that it ought to be categorised as gross did not make the law uncertain. b. The jury were not involved in deciding an issue of law. If the jury were of the opinion that the behaviour was grossly negligent then it was criminal. The reference to criminal law in the test was to make it clear to the jury that a high degree of negligence was required. The jury were not required to considered
Criminal law Feedback to activities whether the conduct of the defendant was criminal but whether it was grossly negligent. If it was grossly negligent then, provided the other ingredients of liability were present, it followed that the defendant was guilty of manslaughter. The question for the jury is not whether the defendant’s negligence was gross, and whether, additionally, it was a crime, but whether his behaviour was grossly negligent and consequently criminal. This is not a question of law, but one of fact, for decision in the individual case. (Paragraph 62)
c. R v G was concerned only with offences of criminal damage contrary to ss.1(1) and 1(2) of the Criminal Damage Act 1971 and is not an authority for the proposition that all crimes require proof of mens rea. In any case, the court pointed out that the defendant’s state of mind is not irrelevant in cases of gross negligence manslaughter as all the circumstances are to be taken into account when evaluating the defendant’s conduct.
Activity 6.7 In common with other critics of the rule including the Law Commission, Lord Steyn takes the view that there is a significant difference in terms of culpability between a person who kills intending to kill and a person who kills intending to cause serious harm, particularly when one bears in mind that there is no need for the defendant to intend the harm to be life threatening or to know that life would be endangered or that the harm intended was inherently life-threatening. The present definition of the mental element of murder results in defendants being classified as murderers who are not in truth murderers. Although Schedule 21 to the Criminal Justice Act provides that an intention to cause serious bodily harm rather than to kill is a mitigating factor that may be taken into account by the judge setting the minimum term, the person who intended to kill and the person who intended serious harm are equally subject to the mandatory penalty. In addition it is argued that the principle of ‘fair labelling’ requires that a person should not be convicted of the most serious offence of murder where their conduct is not morally equivalent to the intentional killer. The label of murder with its unique stigma should, it is suggested, be reserved for the most heinous killings.
Chapter 7 Activity 7.1 a. Kiranjit may be able to raise the defence of loss of self control on the basis that the rape of her daughter combined with racist abuse constituted circumstances of an extremely grave character and caused her to have a justifiable sense of being seriously wronged (s.55(4)). She may also be able to rely on s.55(3) and s.55(5). But this will only be possible if, at the time of the killing, she feared serious violence against herself or her daughter. b. Note that whatever the qualifying trigger relied upon, the defence will fail if either she did not suffer a loss of self-control (s.54(1)(a)) at the time of the killing or the jury are sure that a person of ordinary tolerance and self-restraint would not have acted in the way that she did (s.55(4)(1)(c)). c. The fact that she responded immediately upon discovering the rape is good evidence of a loss of self-control. In determining whether a person with normal tolerance and self-restraint might have reacted in the same way the jury should take into Kiranjit’s sex and age and, to the extent that it is relevant to the insults, her ethnicity.
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Chapter 8 Activity 8.1 A person commits an assault if he intentionally or recklessly causes another to apprehend the application of immediate unlawful violence.
Activity 8.2 a. Where the victim is aware of the threat being made but knows that it will not or cannot be carried out, there can be no assault as there will have been no apprehension of contact (Turberville v Savage (1669) 1 Mod Rep 3). b. Pointing a loaded gun at a person would amount to an assault and the law is probably the same if the gun is unloaded unless the person at whom the gun is pointed knows or believes it to be unloaded (R v St George (1840) 9 C & P 483). c. It would be correct to some extent but the term ‘fear’ is incorrect. It is apprehension which is required and not fear. The victim does not have to be ‘afraid’. It follows that it is irrelevant that the victim is courageous and is not frightened by the threat or that he could easily defeat the defendant’s attack; if he apprehended the application of force then that element of the actus reus of assault would be made out.
Activity 8.3 It has long been said that something more than a mere omission is required for an assault and this was confirmed in the case of Fagan v Metropolitan Police Commissioner [1969] 1 QB 439 although the possibility of an assault arising from a continuing act was not dismissed (see below). However note the more recent criminal case of Santana Bermudez [2003] (discussed in relation to battery in s.9.3).
Activity 8.4 a. i.
Lord Steyn rejected the proposition that an assault could never be committed by words as being ‘unrealistic and indefensible’ because ‘a thing said is also a thing done’. There was no reason why: ‘… something said should be incapable of causing an apprehension of immediate personal violence, e.g. a man accosting a woman in a dark alley saying, “Come with me or I will stab you”.’
ii. His view was that the answer to that question ‘would seem to be yes’ but it would depend upon the facts and would be a question for the jury. If the silent caller intended by his silence to cause fear and did so and caused her to fear the possibility of immediate personal violence he may, as a matter of law, be guilty of an assault. You might have noticed that Lord Steyn used the word ‘fear’ and not ‘apprehend’. A person who causes another to ‘fear’ the application of immediate personal violence will, indeed, be guilty of an assault but it is not necessary that actual fear be caused. This case is not an authority for any proposition that the victim must be frightened. It should be remembered that both victims in these cases had been extremely frightened. So much so that they suffered psychiatric harm. It was, no doubt, with that in mind that Lord Steyn used the word ‘fear’ rather than ‘apprehend’. b. i.
Clause 4.
ii. Battery, by clause 4(a) would occur where a person ‘… intentionally or recklessly applies force to or causes an impact on the body of another’. Assault, by clause 4(b), would occur where a person ‘… intentionally or recklessly causes the other to believe that any such force or impact is imminent’.
Criminal law Feedback to activities
Activity 8.5 a. The actus reus of battery is the infliction of unlawful personal violence (Collins v Wilcock [1984]). Any application of force is sufficient (Callis v Gunn [1964]) and the facts of the question indicate that the actus reus of battery was established when Sandy tripped Julian up. We are not told what, if any, harm was caused to Julian as a result of the infliction of violence but that does not matter as no harm need be caused for the offence of battery to lie. b. It has long been said that the actus reus of battery required a positive act of infliction of violence on the part of the defendant: an omission to act was not sufficient to amount to the actus reus of battery. In the case of Santana-Bermudez [2004] however, the Divisional Court of the Queen’s Bench, applying the Miller principle, held that where a person creates a danger and exposes another to a reasonably foreseeable risk, there is an evidential basis for the actus reus of common assault. Therefore if Sandy’s conduct created a reasonably foreseeable risk of danger to Julian then, on the basis of this case, the actus reus of battery may be deemed to have been committed. See Chapter 2 for a discussion of the Miller principle but note that Santana-Bermudez was a decision of the Divisional Court of the Queen’s Bench and not the Court of Appeal.
Activity 8.6 In R v Dica [2004] EWCA Crim 1103 where the defendant had infected two sexual partners with HIV the Court of Appeal decided that Clarence was no longer of useful application. Where a victim was not aware that the defendant was infected, his or her consent to unprotected sexual intercourse was not to be seen as an implied consent to the risk of infection from that act of intercourse. Although the court held that the victims had not been defrauded as to the nature of sexual intercourse (and hence they had not been raped) they had been defrauded as to the risk of infection. They had therefore not consented to bodily harm.
Activity 8.7 In Richardson [1998] 2 Cr App R 200 patients consented to dental treatment performed by a dentist who had been suspended by the General Dental Council, and thus was behaving unlawfully by practising dentistry. The patients said that they would not have consented had they known that she had been suspended. The defendant was convicted of assault occasioning actual bodily harm contrary to s.47 OAPA – the trial judge having ruled that the victims’ mistake vitiated consent being a mistake equivalent to identity. The Court of Appeal, however, quashed the conviction. The identity of a person did not extend to their qualifications or attributes.
Activity 8.8 Arguably not. For example, in the case of Slingsby [1995] Crim LR 570 the victim died after having engaged in ‘vigorous’ sexual activity – to which she had consented – with the defendant. She died of septicaemia having been injured by the defendant’s signet ring when he inserted his hand into her vagina and rectum. He was charged with unlawful and dangerous act manslaughter but Judge J ruled that ‘it would be contrary to principle to treat as criminal, activity which would not otherwise amount to an assault merely because an injury was caused’. In the earlier case of Boyea [1992], however, where the facts were similar and bodily harm was caused, the defendant was found guilty of assault. In Wilson [1996] Mrs Wilson’s husband, with a hot knife, branded his initials onto her buttocks. Mrs Wilson had consented to this and it only came to light when she underwent a medical examination. The Court of Appeal quashed Mr Wilson’s conviction under s.47 OAPA. Some of the reasons given were that there was no logical difference between what happened in this case and tattooing. It was not in the public interest that consensual activity between a husband and wife in the privacy of their home should be visited by the sanctions of the criminal law where there was no aggressive intent. Russell LJ said:
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It was felt by the court that the law in this regard should develop on a case-by-case basis. In the later case of Emmett [1999], however, where the defendant semi-asphyxiated and poured lighter fuel on the breast of his female partner his conviction for assault occasioning actual bodily harm was upheld by the Court of Appeal. Although reliance in this case had been placed on Wilson, it was held that Wilson could be distinguished on the basis that the harm was less serious. Here the potential damage was far greater, a fact of which the defendant was aware. Nonetheless, the court in Emmett appeared to be of the view that although it had been established in Brown that consent did not form the basis for a defence in sadomasochistic cases, that case was not authority in all circumstances.
Chapter 9 Activity 9.1 1.
The hurt or injury need not be serious or, indeed, permanent but it must be more than transient or trifling and includes any injury likely to interfere with the health or comfort of a person (Miller [1954] 2 QB 282). This would include a temporary loss of consciousness T v DPP [2003] Crim LR 622). According to Hobhouse LJ in Chan Fook [1994] 2 All ER 552, p.557: These are three words of the English language which require no elaboration and in the ordinary course should not receive any. The word ‘harm’ is a synonym for injury. The word ‘actual’ indicates that the injury (although there is no need for it to be permanent) should not be so trivial as to be wholly insignificant. The purpose of the definition in s.47 is to define an element of aggravation in the assault. It must be an assault which besides being an assault (or assault and battery) causes to the victim some injury.
2. In Miller, Lynskey J stated that actual bodily harm includes any hurt or injury which interferes with the health or comfort of the prosecutor and that this includes an hysterical or nervous condition. In Chan Fook, Hobhouse LJ said: The first question on the present appeal is whether the inclusion of the word ‘bodily’ in the phrase ‘actual bodily harm’ limits harm to harm to the skin, flesh and bones of the victim. Lynskey J rejected this submission. In our judgment he was right to do so. The body of the victim includes all parts of his body, including his organs, his nervous system and his brain.
The House of Lords decision which approved this was Ireland and Burstow – See Chapter 9. 3. It was also held in Chan Fook that where the alleged harm is psychological in nature, it is not capable of amounting to actual bodily harm unless expert evidence of an identifiable psychological injury is adduced; it does not include mere emotions such as fear or distress or panic. Neither does it include states of mind that are not themselves evidence of some identifiable clinical condition. In Ireland and Burstow the House of Lords, approving the decision of the Court of Appeal in Chan Fook confirmed that a recognisable psychiatric illness, whether of a neurotic, psychoneurotic or psychotic nature, may amount to bodily harm. Whether or not psychiatric illness amounts to ‘actual’ or ‘grievous’ bodily harm depends upon the seriousness of the illness. Lord Steyn said: The proposition that the Victorian legislator when enacting ss. 18, 20 and 47 of the 1861 Act, would not have had in mind psychiatric illness is no doubt correct. Psychiatry was in its infancy in 1861. But the subjective intention of the draftsman is immaterial. The only relevant inquiry is as to the sense of the words in the context in which they are used.
Criminal law Feedback to activities Moreover the 1861 Act is a statute of the ‘always speaking’ type: the statute must be interpreted in the light of the best current scientific appreciation of the link between the body and psychiatric injury. For these reasons I would, therefore, reject the challenge to the correctness of R v Chan Fook [1994] 2 All ER 552. In my view the ruling in that case was based on principled and cogent reasoning and it marked a sound and essential clarification of the law. I would hold that ‘bodily harm’ in ss.18, 20 and 47 must be interpreted so as to include recognisable psychiatric illness.
4. DPP v Smith [2006] EWHC 94 (Admin). The issue for the court was whether cutting a person’s hair without their consent could amount to an offence contrary to s.47 of the Offences Against the Person Act 1861. The Divisional Court of the Queen’s Bench held that evidence of external bodily injury or a break in or bruise to the surface of the skin was not required for the purposes of actual bodily harm within s.47 of the Offences Against the Person Act 1861. Hair was part of the human body which was intrinsic to each individual and the cutting off of a substantial part of a person’s hair, without that person’s consent, in the course of an assault was capable of amounting to the offence contrary to s.47 even where it did not leave any mark or break the skin. Chan Fook [1994] and Ireland [1998] HL followed.
Activity 9.2 a. Ruby. The relevant offence is pure assault. Therefore the prosecution would need to prove beyond reasonable doubt that Ruby intentionally or recklessly caused Jake to apprehend the application of immediate unlawful violence. There are a number of common law authorities for this proposition which include Fagan v MPC [1969], Venna [1975] and Savage and Parmenter [1991]. If this formed part of a problem question you were answering in an examination, one authority would be sufficient.
The actus reus of this offence will be made out if it can be proved that Jake apprehended immediate violence. See Lord Steyn in Ireland as to ‘immediate’.
The direction to the jury on the mental element required which is recommended by the Judicial Studies Board would be as follows:
The mental element in the offence of assault is established where it is proved that the defendant intentionally or recklessly caused another to fear that he would be subjected to immediate and unlawful violence. It is therefore sufficient to prove that the defendant was reckless as to whether the complainant might fear that he was to be subjected to immediate and unlawful violence. To prove recklessness you must be sure that the defendant realised that [Jake] might fear that he would then and there be subject to immediate and unlawful force and nonetheless went on and took that risk.
b. John. The relevant offence is assault occasioning actual bodily harm contrary to s.47 of the Offences Against the Person Act 1861. What the prosecution needs to prove for John to be convicted of the s.47 offence is that he committed a common assault (i.e. an assault and/or a battery), and that that assault caused actual bodily harm to Barbara.
Assault. If Barbara, at any time before the actual infliction of the blow, apprehended the application of immediate and unlawful violence then, subject to the prosecution proving that John intended her to do so or was reckless as to whether she did, he could be guilty of assault (see feedback to the question on Ruby).
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Battery. A battery is the intentional or reckless infliction of immediate unlawful violence. The actus reus is the infliction of the unlawful violence. Even if the force used is trivial it may amount to a battery (Callis v Gunn [1964]) although the facts of the question indicate that the force used by John is unlikely to have been trivial. The facts indicate that that the actus reus of battery is established. The mens rea for battery is intention or recklessness.
In addition to proof of an assault and/or battery, proof that actual bodily harm was occasioned (caused) is required in order to establish the offence contrary to s.47.
Actual bodily harm. Actual bodily harm is harm which interferes with the health or comfort of the victim and is more than merely transient or trifling (Miller [1954]) and would include a temporary loss of consciousness (T v DPP [2003]). It is likely, therefore, that it would be found that Barbara suffered actual bodily harm.
Occasioning. It must be proved that it was John’s act which caused Barbara’s actual bodily harm. This is an issue of causation (see Chapter 4). It does not need to be proved that John intended or was aware of a risk of harm (See Roberts [1971].)
The specimen directions recommend that the jury should be directed as to the mens rea as follows:
The mental element in the offence of common assault is established where it is proved that the defendant intentionally or recklessly applied unlawful force to another person. The mental element in the offence of assault occasioning actual bodily harm is precisely the same. Whether actual bodily harm was ‘occasioned’ (caused) is simply a question of causation and does not involve any consideration of recklessness, see R v Savage and DPP v Parmenter [1992] 1 AC 699 HL.
To prove recklessness you must be sure that the defendant realised that [Barbara] might be subjected to unlawful force (however slight) as a result of what he was about to do and yet took the risk that that might happen.
Activity 9.3 1.
Wounding – This requires that the continuity of the whole skin is broken. Thus a scratch is not a wound. Neither is an internal rupture of the blood vessels, although a cut to the urethra or inner cheek would be (Moriarty v Brooks (1834) 6 C&P 684 and JCC v Eisenhower [1983] 3 All ER 230).
2. Grievous bodily harm – Grievous bodily harm was defined by the House of Lords in DPP v Smith [1961] AC 290 as ‘really serious bodily harm’. According to the cases of Saunders [1985] Crim LR 230 and Janjua and Choudhury [1999] 1 Cr App R 91 it is not necessarily essential to insert the word ‘really’ before ‘serious bodily harm’. 3. Inflict – It was believed that the word ‘inflict’ in s.20 imposed a requirement of an act amounting to an assault (e.g. Clarence [1888]). More recently it was decided in Wilson (1984) that there can be an ‘infliction’ of grievous bodily harm without proof of an assault. Grievous bodily harm is inflicted either where the defendant has directly and violently inflicted it by assaulting the victim or where the defendant has done something which though not in itself a direct application of force directly results in force being applied to the body of the victim, such that he suffers grievous bodily harm. Is it possible to inflict grievous bodily harm where no force is applied? In Burstow where one of the questions for the House of Lords was whether an offence of inflicting grievous bodily harm under s.20 could be committed where no physical violence had been applied directly or indirectly to the body of the victim, Lord Steyn said:
Criminal law Feedback to activities The question is whether as a matter of current usage the contextual interpretation of ‘inflict’ can embrace the idea of one person inflicting psychiatric injury on another. One can without straining the language in any way answer that question in the affirmative. I am not saying that the words cause and inflict are exactly synonymous. They are not. What I am saying is that in the context of the 1861 Act one can nowadays quite naturally speak of inflicting psychiatric injury.
It would seem that any distinction between ‘inflicting’ and ‘causing’ has been to a large extent eliminated, at least insofar as it relates to grievous bodily harm.
Activity 9.4 No feedback provided.
Activity 9.5 a. Assault: The prosecution would have to prove that Sukhi intentionally or recklessly caused Bertie to apprehend the infliction of immediate unlawful violence. b. Battery: The prosecution would have to prove that Sandra intentionally or recklessly inflicted unlawful violence on Fatima. It is unlikely that a black eye would be deemed to amount to actual bodily harm which would be necessary for a charge of assault occasioning actual bodily harm contrary to s.47, although this is a question of fact. If the bruising was extensive, however, the prosecution might consider charging Sandra under s.47. c. Assault occasioning actual bodily harm contrary to s.47: The prosecution would need to prove the elements of assault and/or battery, i.e. the actus reus and mens rea – see (a) and (b) above. It would then need to be demonstrated that the injuries did amount to actual bodily harm, i.e. that they interfered with the victim’s health and comfort and that they were more than transient or trifling. Finally, it would need to be proved that they were caused by the (common) assault. You would also need to consider the defence of consent. Is James likely to be successful with this defence? How is policy likely to operate here? Was actual bodily harm likely or intended? A charge under s.20 is unlikely as these injuries appear to be fairly minor, although they may be on the boundary between actual and grievous bodily harm, especially if the break to the wrist was a compound fracture. If James was charged under s.20 it would need to be proved that he ‘maliciously’ inflicted grievous bodily harm. What does ‘maliciously’ mean? What is ‘grievous bodily harm’? Is he likely to be successful with the defence of consent to a charge under s.20 in these circumstances? Unless the injuries amounted to GBH and unless there was evidence that James intended GBH, there would be no charge under s.18. d. Maliciously wounding with intent to cause grievous bodily harm contrary to s.18: It would need to be proved that Jane wounded Susie. A wound is a break in the continuity of the whole skin (Eisenhower). The facts of the question make it clear that Susie was wounded. It must also be proved that the wounding was ‘malicious’, i.e. that Jane intended or was reckless as to the wounding. Again the facts of the question indicate that it was intentional. For this offence it must also be proved that Jane intended by the wounding to cause grievous bodily harm to Susie. The facts of the question indicate clearly that she did so intend. It does not matter that Susie did not suffer grievous bodily harm. e. Maliciously causing grievous bodily harm with intent to resist arrest contrary to s.18: Grievous bodily harm is serious harm (Smith/Saunders). A fractured skull is likely to be deemed to be grievous bodily harm. The prosecution would need to prove that Simon ‘maliciously’ caused the GBH, i.e. that he intended it or was reckless as to causing it. The question makes it clear that he did not intend to cause serious harm. Was he reckless? Did he foresee a risk of some harm? The facts of the question indicate that he did. It would seem that the basic offence is established. The question also makes it clear that his ulterior intention was to resist arrest. It is therefore likely that he would be convicted of the offence.
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Chapter 10 Activity 10.1 No feedback provided.
Activity 10.2 This is a comprehension exercise which encourages you to draw the important information that you need from the report. The report lists both the terms of reference and the key recommendations. However, rather than simply copying these lists from the report, set out your own lists, in your own words to ensure that you have understood what the report is trying to achieve.
Activity 10.3 a. The introduction to the White Paper and Chapters 2 and 3 set out some of the problems with the existing law. Summarise these by listing the key inadequacies of the existing law using this table: ‘Archaic’ – aspects of the law in need of modernisation
‘Incoherent’ – aspects of the law which need clarification
‘Discriminatory’ – aspects of the law which are applied inconsistently to men or women
b. The recommendations are listed in the report. However, to ensure that you understand them, try to summarise them in your own words, explaining briefly why each recommendation is considered necessary. c. Look back at Activity 11.2. What recommendations did you list from the consultation paper? Now compare that list with those in answer to (b) in this activity. You may spot inconsistencies which suggests that the Home Office changed its mind about how to reform the law in the light of the feedback it received from members of the public. You should by now be aware of how controversial these reforms were and how difficult it was to find a new set of provisions which achieve the overriding aims (or terms of reference) of the reform process. d. Now think about those overriding aims. Do the changes in the law proposed in the White Paper make it too easy or difficult to punish a defendant charged with a sexual offence?
Activity 10.4 In this situation G initially consents to the penetration but withdraws her consent during the sexual act. At the moment consent is withdrawn, if F does not withdraw his penis, the actus reus will be satisfied since at that point there is a continuing penetration and an absence of consent.
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Activity 10.5 These facts are similar to the facts of Morgan. The actus reus offence is complete – there is penetration of the vagina without V’s consent. However, D may claim that he believed that V was consenting, because he believed that her protests were not real in the light of what her ex-boyfriend had told him. Under the SOA 2003, the jury must decide whether this belief is reasonable, having regard to the circumstances and any steps taken by D to determine whether she consented. D did not make any attempt to ask V whether she consented or not, but would this render the belief unreasonable? Morgan was acquitted under similar circumstances because he honestly believed that V was consenting, but this would no longer suffice under the new legislation.
Activity 10.6 a. This may constitute the actus reus of either offence since the anus is a relevant orifice for the purposes of both rape and assault by penetration and the use of the penis, as a body part, is covered by both offences. b. This cannot constitute an offence under s.2 because the mouth is not a relevant orifice under s.2. Whilst D can use a tongue (as apart of the body) to commit an assault by penetration, D must penetrate a relevant orifice. c. This constitutes an offence of assault by penetration. The anus is a relevant orifice for both offences but the use of a finger precludes a charge of rape. d. This constitutes an offence of assault by penetration. The vagina is a relevant orifice but the use of an object precludes a charge of rape. e. This can only constitute an offence of rape. The penis may be used for either offence, but the mouth is not a relevant orifice for the offence of assault by penetration.
Activity 10.7 In drafting the legislation the government wanted to ensure that where a defendant penetrated the body of the victim with his penis but the evidence is uncertain as to which orifice was penetrated (e.g. if V was unconscious at the time of the assault) then D could not escape liability by claiming that he had not penetrated the orifice specified in the charge. For this reason they ensured that both offences were sufficiently wide to cover any possible penetration by the penis. It could be argued that if the s.2 offence was sufficiently wide to cover acts which we call ‘rape’ then the s.1 offence is an unnecessary addition to the Act and could have been omitted. The government chose to retain a separate offence of rape, specifically for male defendants using their penis, for the purposes of fair labelling. They considered that penetration with a penis is the most serious sexual offence and wanted to preserve the label of ‘rapist’ for defendants committing that act.
Activity 10.8 George had a shoe fetish. He removed shoes from young girls’ feet because it gave him sexual pleasure. When charged with indecent assault he claimed that removing someone’s shoes was not indecent. If you apply the test in s.78 to these facts, first you must ascertain whether removing someone’s shoes would be considered by a reasonable person to be inherently sexual under the first part of the test. This is unlikely. Therefore it is necessary to apply the second part of the test: in the circumstances and because of D’s purpose in removing the shoes, would a reasonable person consider it to be sexual? You are a reasonable person, so what do you think? The jury in this case said that it was not and acquitted the defendant. Remember that D’s motives are irrelevant – an act committed with a motive of deriving sexual pleasure may nevertheless not be sexual.
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Activity 10.9 Court placed a young girl on his lap and slapped her on the buttocks. He admitted that he gained sexual pleasure from this act. Slapping a young girl on the buttocks may, in some circumstances, be an act of chastisement and it is therefore not inherently sexual under the first part of the test. In applying the second part of the test, you need to ask whether the circumstances rendered the act sexual (unlikely) or whether the defendant’s purpose rendered the act sexual. As D’s purpose was not chastisement but his own sexual pleasure then the test may be satisfied. The defendant in this case was convicted as his actions were deemed by the jury to be indecent.
Activity 10.10 This is a comprehension exercise to ensure that you have understood how the Court of Appeal applied s.78 in this case. These questions take you through the test, as it was applied by the Court. The defendant in H touched V’s back trouser pocket and was charged with a sexual assault. Whilst this offence is not on your syllabus, this case is helpful in demonstrating how the two-part test under s.78 on the meaning of ‘sexual’ should be applied. First, you ask, was touching V’s back trouser pocket inherently sexual? The answer is ‘no’ since there may be a range of non-sexual reasons for doing this. Then ask is this act inherently non-sexual? Again, the answer is ‘no’ as this act may be done for sexual purposes. Therefore to ascertain whether D’s acts were sexual or not you need to turn to the second part of the test and the jury can consider whether the circumstances or D’s purpose indicate that the act was sexual. In this case the fact that D had previously propositioned V with the words ‘Do you fancy a shag?’ and was lying in wait for her, suggested that D’s motive in touching her trousers was indeed sexual.
Activity 10.11
D, afraid that his relationship with V was about to end, sent V text messages telling her that he was suicidal, and warning her that in order to prevent him killing himself she must continue to have sex with him: and that if she refused, she would be arrested by the police and fined. Astonishingly she was taken in by this fraud, and on this basis unwillingly allowed their sexual relationship to continue. When the truth came out, D was charged with rape. D’s defence was that V had consented to the sexual intercourse and that this consent was not vitiated as he had not deceived her as to whether the nature or the purpose of the act.
In this case the question is whether or not D deceived V as to the purpose of the sexual acts. But this raises the question of what is meant by the word ‘purpose’?
Activity 10.12
The wide interpretation of the word purpose would suggest that it means the ‘reason why the sexual act took place’ – so in the context of this case the ‘purpose’ of the sexual act would be to prevent D from killing himself or to prevent V from being arrested and fined
The narrow interpretation of the word purpose would suggest that it means the ‘sexual’ purpose, or the purpose of sexual gratification, as opposed to the purpose of a medical examination, for example. This interpretation is so narrow it offers a meaning which really adds nothing to the word ‘nature’ since both the nature and purpose of the act are ‘sexual’.
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Activity 10.13 Arguments for the prosecution
Arguments for the defence
The prosecution would seek to use the wider interpretation. Think about the implications of the wide interpretation: the wider the meaning of the word purpose, the more widely s.76(2)(a) will apply. Since s.76(2) (a) gives rise to a conclusive presumption against not only consent but also against reasonable belief in consent on the part of D, this considerably reduces the burden on the prosecution to establish guilt.
The defence would seek to use the more narrow interpretation of the word ‘purpose’. If the meaning of s.76(2)(a) is very restricted, then there is no presumption that V does not consent and V’s consent may negate D’s liability. Therefore the defence are likely to argue that ‘purpose’ here means sexual purpose, as opposed to ‘medical’ purpose or some other purpose. V knew that she was consenting to sexual intercourse and was not deceived as to the ‘sexual’ nature of the act (e.g. this case is not like Tabassum where V was told the act was for medical or research purposes). D will argue that he did not deceive V as to the sexual purpose of the act and therefore her consent is valid.
Therefore the prosecution are likely to rely on the wider interpretation of the word ‘purpose’ and argue that here V was deceived as to the reason why she was consenting to sexual intercourse. She believed the purpose was to save D from committing suicide and to prevent her from being arrested and fined, whereas in fact D merely wishes to continue his sexual relationship with her.
Activity 10.14 No feedback provided.
Activity 10.15 The Court of Appeal preferred the narrow interpretation, partly for policy reasons. Section 76(2)(a) should not apply widely so as to effectively presume guilt in a large number of cases. Therefore they established that the word ‘purpose’ in this context, means ‘sexual’ purpose. Note that D’s conviction was upheld nevertheless, but using s.74 and the general definition of consent. Although there was no conclusive presumption against V’s valid consent in this case, the Court was of the view that the amount of pressure that D put on V through his deception, sufficiently impeded her freedom to consent under s.74.
Activity 10.16 a. This is similar to the facts of Jheeta in that D is lying to V in order to convince her to consent to sexual intercourse, Applying the reasoning in Jheeta, this scenario would not fall under s.76(2)(a) since V is not deceived as to the sexual purpose of the act. There is no conclusive presumption against consent, although the pressure placed on V may affect her freedom to choose to consent under s.74. b. This scenario is similar to the facts of Dica [2004] EWCA Crim 1103 and Konzani [2005] 2 Cr App R 14 (these cases are discussed further in Chapter 9 of this guide). V has not been deceived as to the nature of act in that she knew that she was having sexual intercourse. But you could argue that was she deceived as to the nature of the act in the sense that she was unaware of the risk of contracting HIV? The Court of Appeal in both cases suggested that consent to sexual intercourse must be considered separately from consent to infection. The former consent was valid as this does not fall within s.76. The consent to the latter was invalid but as it is a form of injury this gave rise to a charge of GBH under s.20 Offences Against the Person Act 1861. c. Assuming that the act of performing a manicure on a client was considered to be sexual (according to s.78(b) SOA 2003), you then need to assess whether the clients were deceived as to the purpose of the act. You could argue that the purpose of the act for D was sexual rather than a beauty treatment and therefore their consent was invalid. Note that D may have multiple purposes for the act but deception as to the sexual purpose for an act may suffice to invalidate consent.
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Activity 10.17 a. Victoria is deceived into thinking that Jim is in fact John. Is John known personally to her? She has only met him once, but they are at least acquainted. If so, Victoria’s consent is conclusively presumed invalid. b. Jane is deceived into thinking that David is Shane Mooney. However, we can assume from the facts that Shane Mooney is not known personally to Jane and therefore, notwithstanding the deception, Jane’s consent is valid. Does this seem fair? Of course, the fact that David knows she is making a mistake and does not enlighten her as to that mistake, may raise questions in relation to his mens rea – does he hold a reasonable belief that she was consenting to the sexual intercourse? c. Carol is deceived into thinking that Burt is Fred. But can we say that Fred is known personally to Carol if they have never met? This is not clear from the act. The jury may have to assess the extent and length of their correspondence in order to assess whether they are known ‘personally’ to each other.
Activity 10.18 Administering the vodka may give rise to an evidential presumption against consent by virtue of s.75(2)(f). However, the double vodka must be a substance ‘capable of causing or enabling [V] to be stupefied or overpowered’. Is a double vodka capable of stupefying? On its own, possibly not. However s.75(2)(f) also requires that the jury ‘have regard to the circumstances in which is was taken’. As Dawn was already a little drunk the double vodka may, in these circumstances, be a substance capable of stupefying. If Dawn suspected the vodka was in her drink, but drank it anyway, this may suggest that she consented to drinking the vodka. Administering a substance with V’s consent does not, in itself, invalidate consent to sexual acts. You would then need to ask whether, under s.74, Dawn gave her consent freely, or under s.75, whether she was unconscious or asleep at the time that the sexual intercourse took place.
Activity 10.19 No feedback provided.
Chapter 11 Activity 11.1 In the given scenario the taxi driver would be charged as an accomplice to the gunman’s crime of murder. As the law draws no distinction between accomplices and principal offenders (see chapter 15), this means that the taxi driver could be charged with murder. This will be known as ‘first degree murder’ when the Law Commission’s proposed changes to the law on homicide are implemented. Under current common law, the taxi driver would not be able to raise the defence of duress as it is not a defence to the crime of murder committed by any type of offender. The Law Commission’s proposals suggest that duress should become a complete defence to murder and the taxi driver, provided he satisfied all the necessary requirements discussed further ion this chapter, would be acquitted. In their previous report on homicide in 2005, the Law Commission mooted the possibility of making duress a special defence to murder. This means that it would operate rather like provocation and diminished responsibility and would reduce the conviction for murder to voluntary manslaughter (or first degree murder to second degree murder in the Law Commission’s new structure of homicide offences). By the time of their second report in 2006, after they had considered the views of many commentators, they chose to reject this option and instead to make duress a complete defence. If you read the report you will see their reasons for taking this option. Do you agree?
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Activity 11.2 No feedback provided.
Activity 11.3 There is no threat of death in this case, nor of serious physical injury to Nancy or the child. However, the question here is whether Nancy could claim that she acted under the threat of serious psychological harm, which could amount to grievous bodily harm. This was discussed in Baker v Wilkins [1997] Crim LR 497, a case with similar facts to this scenario. The Court of Appeal ruled that a threat of serious psychological harm could not suffice for a plea of duress as the defence requires a threat of serious physical injury. However, the commentary on this case argues that after the decision of the House of Lords in Burstow [1996] a threat of psychological harm ought to suffice since Burstow ruled that this could amount to grievous bodily harm. Nancy may therefore be able to plead duress if she can establish that the psychological harm of losing her child would be very serious.
Activity 11.4 Again there is no threat of death here, but Juliet could claim that she was forced to take the drug in order to prevent serious injury to herself (in the form of pain). This scenario is similar to the facts of Brown [2003] EWCA Crim 2637, in which the Court of Appeal held that ‘injury’ could not include pain which was merely additional to that already suffered by D. All that Juliet is avoiding is the additional pain that she suffered when she took prescribed drugs, as opposed to the lesser pain that she suffered when she smoked cannabis. See also Quayle [2006] Crim LR 148.
Activity 11.5 a. D lived with his wife and his homosexual lover, K, who was violently jealous of D’s wife. After drinking heavily one night K told D to assist him in killing D’s wife and D did so. D claimed a defence of duress on the grounds that he was taking drugs which made him vulnerable to bullying. b. D believed that K, being a violent man, would seriously injure him if he did not do as he was asked. c. If an honest belief had sufficed, his mistake (based on his consumption of drugs which altered his perception of the threat) would have to be taken at face value. However, the jury must assess whether his mistake is reasonable and his vulnerability to threats was irrelevant to this objective test.
Activity 11.6 You have the choice of using either Hudson or Heath and Hasan. If you rely on Hudson the defence is more likely to be successful. However, you need to consider whether the facts of this scenario can be distinguished in a material way from either line of authority. David could have reported the threat to his teacher and thereby avoided committing the crime. If you rely on Hudson you need to establish that the threat was operative as David might have believed that despite the protection of his teachers at the time of committing the crime Mark may have assaulted him later. You would therefore need to distinguish Heath and Hasan. Was there a material difference in the immediacy of the threat in those cases? Is there a difference in the context of those offences, which may explain a policy judgment on the part of the courts to deny the defendants the defence, and would that policy apply here?
Activity 11.7 a. D was a Shi’ite Muslim who had fled from Saddam Hussein’s Iraqi regime. Facing deportation from his country of exile he hijacked a passenger plane and flew to London. He was charged with hijacking. b. D believed that if he had not committed this offence he would have faced deportation back to Iraq where the Iraqi authorities would have executed him.
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c. This threat was not immediate at the time that the hijacking took place. The threat would not have been carried out until D had arrived back in Iraq and the Iraqi authorities had made their decision to execute him. d. The Court of Appeal held that though not immediate, this threat was sufficiently imminent as to afford D a defence of duress. The threat was so certain that it was clearly operative on D’s mind at the time of committing the offence and there was no avenue of escape, so that D’s will could be said to be ‘overborne’. To illustrate this Rose LJ drew the following analogy: ‘If Anne Frank† had stolen a car to escape from Amsterdam and had been charged with theft, the tenets of English law would not, in our judgment have denied her a defence of duress of circumstances, on the ground that she should have waited for the Gestapo’s knock on the door.’
Activity 11.8 a. The case of Emery [1993] suggests that this characteristic would be relevant. It is a recognised psychiatric condition and would affect at least D’s perception of her ability to escape from threats. b. Neither shyness nor timidity are psychiatric conditions or mental illnesses. The effects of child abuse on D are also likely to be speculative and the Court of Appeal in Hurst [1995] suggested that mere speculation as to the source of a condition would not be admissible. c. Whilst paranoia may be relevant if there is medical evidence to show that it was a recognised psychiatric condition, in this case it is self-induced by the misuse of a drug and would therefore not be admissible.
Activity 11.9 a. If Derek honestly believes that Fred is about to shoot and injure or kill Vera then he is both protecting Vera from harm and preventing a crime. Here, the sources of the law on self-defence overlap and you could apply both the common law and the statutory defences (except s.5 Criminal Damage Act 1971). In the exam you would gain credit for using either of the defences but should ideally apply the statutory defence. b. In this scenario Derek may honestly believe that he needs to protect Vera from harm, but he is not preventing a crime as Fred is under the minimum age of criminal responsibility. Therefore you would have to use the common law defence. c. Here, Derek may honestly believe that he needs to protect Vera’s property from damage and also that he is preventing a crime (he is preventing Fred from committing criminal damage). Throwing the gun in the canal may result in a charge So you can use either the statutory general defences under s.3 Criminal Law Act 1967, or the lawful excuse defence under the Criminal Damage Act 1971, s.5(2) (b).
Activity 11.10 a. In this scenario D may be said to be preventing the commission of a crime and the force that he uses is in fact effecting a lawful arrest of V. Provided the force used is reasonable, D may claim a defence under s.3 Criminal Law Act 1967. In this sense D may use force to protect property. The use of force to protect property is therefore most likely to effectively constitute a use of force to prevent crime. b. This scenario is slightly different because D commits criminal damage in order to protect property. Under the Criminal Damage Act 1971, s.5 provides D with a ‘lawful excuse’ for damaging property where he honestly believes that the property in question was in immediate need of protection and that the means of protection (i.e. the smashing of the window in this case) was reasonable in the circumstances.
†
Anne Frank was a young Dutch Jewish girl who, during the Second World War, had hidden in the attic of a house in Amsterdam to avoid capture by the Nazis and internment in a concentration camp. She was eventually captured and was executed in Auschwitz.
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Activity 11.11 These facts are similar to those in Martin (Anthony) [2001] EWCA Crim 2245. The question here is whether shooting an unarmed burglar in these circumstances constituted the use of reasonable or excessive force. If you look at these facts from the perspective of the ordinary reasonable person, you may well consider that it was not. However, Martin claimed that, in part due to his psychiatric condition, he did perceive the force to be reasonable as his depression and paranoia caused him to perceive the threat as greater than a normal person would have done. The Court of Appeal rejected this argument and ruled that D’s psychological characteristics cannot be admissible in applying this objective test. His physical characteristics may have been, so that if he felt frail and vulnerable physically and the burglar was young, fit and strong, that may be relevant to the jury in considering whether D’s force was reasonable.
Activity 11.12 a. This case concerned two girls born as conjoined twins. One stronger twin, Jodie, was sustaining the life of the weaker twin, Mary, and it was established medically that Mary could not survive independently from her sister, but that Jodie could. Unless an operation was carried out to separate the twins both were highly likely to die. However, if carried out, the operation would almost certainly cause the death of Mary. The doctors wished to carry out the separation in the hope that it would give Jodie a greater chance of survival but the parents objected to the operation for religious reasons, as they strongly believed that it is morally wrong to deliberately end the life of another. b. The doctors applied to the court for a declaration that the operation was lawful. In considering this issue the court had to consider whether the doctors could potentially be liable for the murder of Mary in carrying out the separation. No charges were actually brought – this is a test case. However, if the operation went ahead the doctors would have intentionally caused the death of Mary. c. It could be argued that it was necessary for the doctors to cause the death of Mary in order to save the life of Jodie. To carry out the operation could therefore be said to be the ‘lesser of two evils’, the other being not to operate and allow both twins to die. d. Brooke LJ appears genuinely distraught at having to make a decision which essentially involved choosing between the lives of two very young children. He suggests that the court is being asked in this case to balance two contentious arguments. On the one hand some would argue that it is immoral for the law to sanction an act which deliberately causes the death of any person as Mary has a right to life. On the other hand, some would argue that it would be equally immoral not to save Jodie’s life through this operation as the law should protect her right to life. This decision involved calculating the relative merits of the lives of two human beings. e. The court decided that the operation would not be unlawful provided the defence of necessity was applied in very specific circumstances, namely:
that the criminal act is needed to avoid inevitable and irreparable evil
no more should be done than is reasonably necessary for the purpose to be achieved, and
the evil inflicted must not be disproportionate to the evil avoided.
The operation in this case was considered necessary under these conditions: there was an inevitable and irreparable evil to be avoided (Jodie’s death), the operation was the only way to avoid that evil and although it involved causing the death of one person, this was proportionate in that it saved the life of one other person.
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University of London International Programmes Problems arise with these conditions because you could argue that on this reasoning the defendants in Dudley and Stephens should have been acquitted. In that case the death of all four crew members was inevitable and irreparable as they had no food or water and did not know when they were likely to be rescued. The defendants argued that there was no other way to obtain food or water and in killing the cabin boy they sacrificed one life in order to save three lives – which must be considered to be proportionate.
g. Is it possible to distinguish between these cases in order to justify the different outcome? If not, the decisions must be considered inconsistent. One fundamental difference between the cases is that in Re A the ‘defendants’ were professionals carrying out an act under strict professional guidelines and with considerable expertise. Furthermore, they were asking the court’s permission to carry out the operation prior to causing the death. Although Brooke’s conditions do not mention these criteria, it could be argued that a distinction could be drawn between this case and others where defendants kill, albeit in unusual circumstances, and then attempt to plead a defence.
Chapter 12 Activity 12.1 No feedback provided.
Activity 12.2 In the case of R v T [1990] it was held that post-traumatic stress disorder (PTSD) (which had been diagnosed by a psychiatrist) could amount to sane automatism. The court held that where this condition resulted in a normal person carrying out an act of violence, this was not in itself a disease of the mind. The PTSD which the defendant suffered from had been caused by her having been raped a few days before her act of violence against another person. Her case, the court held, was distinguishable from those of Broome and Issit where there had only been a partial loss of control. In this case there was evidence that the defendant, who was in what was described as a ‘dissociative state’, was acting as though in a ‘dream’. It could be said here that the rape was the external factor which caused the automatism in the same way that a blow to the head which causes concussion is an external factor. Therefore if the PTSD resulted in more than one act of violence on the part of a defendant, the principles outlined above would come into play and, for that defendant, the condition would be reclassified.
Activity 12.3 Online research If you had any difficulty in accessing this article you should do the online research exercises on the University of London website, which you will find at www.londoninternational.ac.uk/current_students/programme_resources/laws/index. shtml a. The jury’s verdict was that the defendant was not guilty of the offences charged. Note that as this was a first instance trial it does not create a precedent. A trial judge’s direction to the jury does not have the status of precedent and we cannot know why the jury came to the verdict it did. b. Buck’s solicitor’s view was that ‘We will never know whether the jury followed the line of reasoning described here, or was more swayed by the good character evidence provided’.
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Activity 12.4 a. Case
Disorder
Internal
External
Sullivan
Epilepsy
Insanity
Hennessy
Hyperglycaemic diabetes
Insanity
Quick
Hypoglycaemic diabetes (and alcohol)
Burgess
Sleep walking
RvT
Post-traumatic stress disorder induced by rape
Automatism
Bingham
Hypoglycaemic diabetes
Automatism
Defence
Automatism
Insanity
b. Wilson outlines the academic critique of these cases (in Chapter 9: ‘Defences (1)’), but you may have your own views. You may, for example, find it surprising to learn that a sleepwalker may be labelled insane in criminal law! Or that a hyperglycaemic diabetic is labelled insane but a hypoglycaemic diabetic is not! This may appear irrational and random. However, there is a policy reason behind the distinction. Lord Diplock in Sullivan reminded us that the purpose behind the plea of insanity (and at that time the compulsory medical detention of the insane) was to protect the public from people who may, because of their disorder, be dangerous. A disease of the mind caused by an internal factor is more likely to recur and therefore the defendant is more likely to re-offend, because the internal cause may not be treatable, whereas an external cause, such as a blow to the head, may be more treatable and may therefore not render the defendant dangerous. Do you agree?
Activity 12.5 No feedback provided.
Activity 12.6 Online research 1 Hardie a. Hardie was charged with arson with intent to endanger life or being reckless as to whether life would be endangered contrary to ss.1(2) and (3) of the Criminal Damage Act 1971. b. He appealed on the ground (among other things) that the trial judge misdirected the jury to the effect that since the drug was voluntarily self-administered it was irrelevant as a defence and should be ignored when considering the appellant’s state of mind in respect of all aspects of mens rea. c, d. Parker LJ said: They should have been directed that if they came to the conclusion that, as a result of the Valium, the appellant was, at the time, unable to appreciate the risks of property and persons from his actions they should then consider whether the taking of the Valium was itself reckless. We are unable to say what would have been the appropriate direction with regard to the elements of recklessness in this case for we have not seen all the relevant evidence, nor are we able to suggest a model direction, for circumstances will vary infinitely and model directions can sometimes lead to more rather than less confusion. It is sufficient to say that the direction that the effects of Valium were necessarily irrelevant was wrong.
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2 Bailey His defence was that he had acted in a state of automatism caused by hypoglycaemia as a result of failing to take food after a dose of insulin. a. The recorder directed the jury that the defence of self-induced automatism was not available to Bailey. b. Bailey’s appeal was dismissed. Unless a defendant acted recklessly, self-induced automatism could be a defence to negative the mens rea of a crime whether of basic or specific intent; that, although the taking of alcohol or dangerous drugs was reckless behaviour, a failure to take food after insulin that led to aggressive, unpredictable and uncontrolled behaviour would be a defence to both the offences charged if the appellant had not appreciated that his omission would result in such behaviour. However, although the recorder had misdirected the jury there had, in the circumstances, been no miscarriage of justice since the appellant had not laid the basis on which the jury could have considered the defence of automatism and, if they had been properly directed, they would still have rejected that defence. c. No. His conviction was upheld because, it seems, the court did not believe, given his recorded conversation with the police, that he was actually in a state of automatism. There was ‘abundant evidence’ that he had armed himself with the iron bar and gone to the victim’s house for the purpose of attacking him because he wanted to teach him a lesson and because he was in the way.
Activity 12.7 You will remember that Lord Denning in the case of Bratty said: No act is punishable if it is done involuntarily: and an involuntary act in this context… means an act which is done by the muscles without any control by the mind such as a spasm, a reflex action or a convulsion; or an act done by a person who is not conscious of what he is doing such as an act done whilst suffering from concussion or whilst sleepwalking.
a. The facts of the question make it clear that John was suffering from hypoglycaemia and if this condition meant that he had no control over his bodily movements then it is clear that he was suffering from automatism. Remember, if he did have any control, the defence will not lie (Broome v Perkins [1987] (Div Ct); Attorney General’s Reference (No. 2 of 1992) [1993]). If he was acting as an automaton, then as his automatism was caused by an external factor, i.e. the insulin it would be sane automatism (R v Quick; R v Sullivan). He chose not to eat any breakfast after having taken his insulin so we now have to consider whether his automatism was self-induced. If the offence with which he is charged is a specific intent crime then provided he did not have the mens rea for the offence it matters not that there was prior fault. He will be acquitted. If, however, the offence was a basic intent crime then the rule in Majewski that self-induced intoxication is no defence to a crime of basic intent applies to automatism. Note that John did not take alcohol or any recreational drug so he may be able to take advantage of the exception in R v Hardie and R v Bailey. If John did not foresee that taking his insulin without food would make him uncontrollable and aggressive then he will be able to take advantage of the defence. If he is successful then the verdict will be an unqualified acquittal. b. Here John forgot to take his insulin. It is therefore the diabetes which has caused his state of automatism. Diabetes is a disease and, according to Lord Diplock in Sullivan, any disease (whether temporary or permanent, functional or organic) which causes an impairment of mental faculties is a disease of the mind within the M’Naghten Rules It does not have to be a disease of the brain (see also Hennessey). Therefore if John pleaded automatism as a defence, the court would rule that it was insane automatism which, if John’s plea was successful, would result in a qualified acquittal – the special verdict of ‘not guilty by reason of insanity’. c. The facts here are very similar to those in Sullivan. Epilepsy is a disease and for these purposes would be classed as a disease of the mind. If John wished to plead automatism it would be insane automatism. See (b) above.
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Activity 12.8 The actus reus of a homicide offence requires that D causes the death of a person ‘in being’. In this case, as V was already dead when D stabbed him, V was not a person ‘in being’ and neither has D caused death. D’s mistake therefore negatives the actus reus of any homicide offence (see Thabo Meli [1954] 1 All ER 373).
Activity 12.9 a. Hilda appears to be drunk enough to behave abnormally and perhaps did not exercise the judgement and caution that she would have done if sober, but Lord Denning made it clear in Attorney General for Northern Ireland v Gallagher [1963] AC 349, that intoxication which gave D ‘Dutch courage’† to behave in they way that they did would not suffice for a defence. b. The question to ask here is whether D had formed mens rea and the fact that he could not remember what he had done does not necessarily mean that he did not have mens rea at the time that he committed the offence. In Stubbs (1989) 88 Cr App R 53 O’Connor LJ suggested that an ‘extreme’ degree of drunkenness was required before a defence could be raised.
†
An ancient libel, suggesting that Dutch people needed to drink alcohol before they could show courage. The Dutch as are brave as anyone else.
Activity 12.10 Offence
Mens rea
Basic/specific intent
Murder
Intent to kill/cause GBH
Specific
Manslaughter
Gross negligence/mens rea of unlawful act
Basic
Robbery
Mens rea of theft + intent to use or threaten force
Specific
Theft
Intent to permanently deprive + dishonesty
Specific
Obtaining property by deception
Dishonesty + deliberate or reckless deception
Basic
Criminal damage
Intent or recklessness as to damage (s.1(1)) and intent or recklessness as to endangering life (s.1(2))
Basic
Attempts
Intent to commit full offence
Specific (regardless of which offence is attempted)
Assault occasioning actual bodily harm (s.47 OAPA 1861)
Intent or recklessness as to assault
Basic
Wounding or inflicting GBH (s.20 OAPA1861)
‘Maliciously’ (meaning recklessly)
Basic
Wounding or inflicting GBH (s.18 OAPA 1861)
With intent
Specific
Rape
Intentionally + lack of reasonable belief in consent
Basic (because the second part of the mens rea)
Sexual assault
Intentionally + lack of reasonable belief in consent
Specific
Burglary
Intent to carry out ulterior offence
Specific
Activity 12.11 Applying Majewski, D has committed criminal damage, which is a basic intent crime. He would be considered to have formed the mens rea (recklessness) at the time he got drunk. When he set fire to the hotel he committed the actus reus of criminal damage and at that point the offence would be complete. He may not have actually foreseen the possibility of endangering the lives of others but his general state of recklessness would suffice.
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Applying Caldwell we come to the same result but via a rather different route. D commits the actus reus by setting fire to the hotel. At that point the jury would ask, did D fail to foresee a risk of others’ lives being endangered, which would have been obvious to an ordinary, reasonable, sober person? The answer is almost inevitably ‘yes’. The reasoning in Caldwell is legally more appropriate in that the actus reus and mens rea coincide. In Majewski the mens rea exists in abstract: it relates to no particular risk and is formed at the time D gets drunk rather than at the time that D commits the actus reus. However, the objective test for recklessness resulted in unfairness in a number of other cases which involved defendants incapable of foreseeing a risk for reasons other than that they were drunk (e.g. they were too young or of limited intelligence). For this reason, among others, Caldwell was overturned in R v G [2003].
Activity 12.12 a. D was a homosexual with known paedophiliac tendencies. P, intending to blackmail D, invited D and a 15-year-old boy to his flat one evening. Both D and the boy were given coffee by P, laced with a soporific drug. The boy fell asleep and remembered nothing until the next morning. D indulged in sexual acts with the boy but D claimed he also remembered nothing the next morning. b. D claimed that he had been involuntarily intoxicated by P who had put soporific drugs in his drink. c. If D, as a result of involuntary intoxication, lacks mens rea, D will not be liable for either a specific or a basic intent offence. d. D was convicted. Although he was involuntarily intoxicated at the time he committed the offence, there was evidence that he nevertheless had mens rea and the effect of the drug was to disinhibit him rather than render him without mens rea. D had had paedophiliac tendencies.
Chapter 13 Activity 13.1 If the Geddes approach is followed D is not guilty of an attempt. Despite the fact that D acts with the mens rea for murder he has not actually tried to strangle V.
Chapter 14 Activity 14.1 No feedback provided.
Activity 14.2 No. Although Susan is guilty of encouraging George to commit murder she is not guilty of murder as a secondary party, as the killing was independent of the counselling. In Calhaem, Parker LJ said: [T]he act done must, we think, be done within the scope of the authority or advice, and not, for example, accidentally when the mind of the final murderer did not go with his actions. For example, if the principal offender happened to be involved in a football riot in the course of which he laid about him with a weapon of some sort and killed someone who, unknown to him, was the person whom he had been counselled to kill, he would not, in our view, have been acting within the scope of his authority; he would have been acting entirely outside it, albeit what he had done was what he had been counselled to do.
Criminal law Feedback to activities
Activity 14.3 a. The question of whether there are any limits to the liability of secondary party in such a situation has not been addressed specifically but Smith and Hogan have argued (Ormerod, D. Smith and Hogan: Criminal law (Oxford: Oxford University Press, 2008) twelfth edition [ISBN 9780199202584] p.203) that as a person is liable for all crimes of the same type as that contemplated by him, a person in Donald’s situation would be liable for all the burglaries. Do you agree that this should be the outcome? b. Yes. Chelsea is guilty of murder by virtue of the doctrine of transferred malice and so too is Sandra. c. Yes. Where D1 deliberately departs from the course of conduct which D2 encouraged or assisted, D2 attracts no liability unless he foresaw that D1 might do as he in fact did.
Chapter 15 Activity 15.1 Although you gave me the book initially and I therefore came by it innocently at that time, after the exam I know that I should have returned the book to you. My decision to sell it was an assumption of your rights as the owner of the book and I have therefore at that point appropriated it.
Activity 15.2 a. D switched the labels on two items on a supermarket shelf, intending to buy the more expensive item at the price of the cheaper one. He was apprehended before he had paid for the goods at the supermarket checkout. b. D had assumed the rights of the owner to label the goods at a particular price. c. This was just one of the owner’s rights. As D had not paid for the goods and left the supermarket he had not assumed all of the rights of the owner (including the right to use, sell or dispose of the goods). d. Yes. e. The House of Lords confirmed that an appropriation is committed at the point where D has assumed any, if not all, of the rights of the owner. In this case an appropriation had taken place at the moment that D had switched the labels, even though he had not ‘taken’ the goods.
Activity 15.3 a. Gomez was the assistant manager of a shop. His friend asked him to supply goods from the shop in exchange for stolen cheques. D told his manager that the goods were for a genuine order and that the bank had said the cheque was OK. D handed the goods over in exchange for the cheques, which were not accepted by the bank. b. Gomez was charged with theft. c. The owner of the goods (for the purposes of this charge) was the shop manager who authorised the handing over of the goods, so he did consent to the appropriation. d. Yes. e. Yes. Lord Keith said that ‘it was erroneous and unnecessary to indicate that an act expressly or impliedly authorised by the owner could never amount to an appropriation’.
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Activity 15.4 All of these examples do involve an appropriation since they all involve an assumption of the rights of the owner. After the decision in Gomez it is irrelevant whether the owner consents to the appropriation or not. Of course, none of these actions would necessarily constitute a theft unless the other actus reus and mens rea elements are present. They serve to demonstrate, however, that the notion of appropriation of property is very wide and may involve doing something that is not, in itself, demonstrably wrong.
Activity 15.5 This scenario raises the question of whether the concept of appropriation is now so wide that it is possible to assume the rights of the owner (with or without their consent) without ever physically coming into contact with the property. This scenario is similar to the facts of Pitham and Hehl (1976) 65 Cr App R 45. In that case, when D purported to sell the furniture in the house of his friend (who was in prison at the time) it was held that this amounted to theft. Glanville Williams described this decision as ‘jurisprudentially preposterous’!† Nevertheless, although the owner retains her rights to the property, D has interfered with at least one of those rights – the right to sell it. Theft (and indeed an appropriation) need not involve the owner losing their rights or the property itself; any interference with those rights will suffice. What if D offered to sell the Crown Jewels? Has he interfered with the rights of the owner? It has been suggested that this can never amount to an appropriation because D is not in a position to actually threaten the rights of an owner† (the Crown Jewels are kept securely in the Tower of London, and even if V was gullible enough to pay D for them, D would never be able to pass ownership of the Jewels to V). Do you agree? Does it matter whether or not V’s ownership rights are actually under threat?
Activity 15.6 No feedback provided.
Activity 15.7 1.
D was a government official who had awarded a lucrative contract to X and received a payment from V for doing so – a straightforward case of corruption. D was charged under the BVI equivalent to the Theft Act s.1 and was convicted. On appeal to the PC his conviction was upheld:
2. In this case, as in Hinks the property freely handed over as a gift (or bribe). What is different about this case is that the victim of the theft not only did not suffer any loss as a result of the theft but actually stood to gain financially from it. However, this did not prevent the actions of D being an appropriation for the purposes of theft. Indeed, Lord Bingham said: it is certainly true that in most cases of theft there will be an original owner of money or goods who will be poorer because of D’s conduct. But in Morris D was arrested before paying the reduced price for the goods, so that the supermarket suffered no loss. ... It is accepted that the theft was carried out for a purpose which could financially benefit the victim.
3. Read the arguments put forward by counsel for the defence and think about how you would base your dissenting judgement on distinguishing Hinks from the facts of this case.
†
Williams, G. ‘Appropriation: a single or continuous act?’ (1978) Crim LR 69.
†
See Clarkson, C.M.V. and H.M. Keating Criminal law: text and materials. (London: Sweet & Maxwell, 2003) fifth edition [ISBN 042130930X] p.765.
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Activity 15.8 a. This is tangible property which can be stolen. b. This is a debt of £10 owed by the bank to the payee and is a thing (chose) in action which can be stolen. c. This is a debt owed by the bank to the account holder and is a thing in action which can be stolen. d. Air is tangible property which can be stolen (but it must belong to another – see s.16.1.3). So letting air out of a car tyre, for example, might be theft. e. Gas is tangible property. f.
Electricity was thought in 1968 to be incapable of being stolen and is therefore not property. The Theft Act 1968 does, however, create a separate offence of ‘abstracting electricity’ in s.13 which is the equivalent to ‘stealing’ electricity.
g. Human body parts or a human corpse are not property unless they are used for exhibition or teaching purposes. So a human skeleton used by a medical student would be property which can be stolen. h. As a wild bird, the pheasant is not property capable of being stolen. However, once shot the carcass of the pheasant would be property belonging to Lord Snooty. i.
As Fluffy is tamed and kept in ‘captivity’ (and so is not a wild creature) she is property capable of being stolen.
Activity 15.9 a. Although you have possession and control of it, the extra £50 has been obtained by you by mistake. Section 5(4) states that where this happens, and there is an obligation to restore the money to its owner, the money is to be treated as belonging to the person entitled to restoration of the money. You would have a legal obligation to restore the money under civil law and therefore the money is treated as belonging to your employer. b. When D puts the cheques in his bank account, ownership of the money transfers to him. However, under either s.5(1) or s.5(3) the money may be treated for the purposes of theft as belonging to another. D may be said to have received the money on trust so that his friends have a ‘beneficial interest’ in it under s.5(1). It may therefore belong to both D and his friends at the same time. Alternatively, under s.5(3) it may be said that D has an obligation to deal with the money in a particular way (that is, to pay for the trip to London) and so the money continues to belong to his friends while it is in his account. See Wills [1991]. However, the obligation to deal with the property in a particular way must be a legal one and not a moral one – see Dubar [1995]. This will be a question of fact for the jury, which is more complex where there is no written agreement as to what D is obliged to do with the money. Failure to use the money to pay for the trip therefore may constitute appropriation of property belonging to another, if there is an implied or express legal obligation on him to use the money in that way. If D also has the relevant mens rea of dishonesty and intention to permanently deprive his friends of the money, then he may be guilty of theft. c. Martin has appropriated the money, but the question is whether the money still belonged to his clients or to the bank. These facts are similar to those of Clowes (No. 2) [1994]. In that case it was held that the ownership of the money did not pass to the bank, but a trust had been created under which Martin (or the bank) held the money on trust to be invested on behalf of the clients. Therefore the beneficial interest in the money belonged to the clients. Under s.5(2) Martin as a trustee has ‘defeated’ the trust and, provided he has the requisite mens rea, he can be guilty of theft of the money. Alternatively it may be argued that the clients retain a beneficial interest in the property under s.5(1) and although Martin has possession or control of the money, the money also belongs to the clients.
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Activity 15.10 a. The Court of Appeal in Landy set out a model direction to the jury in the following terms: An assertion by the defendant that he acted honestly does not have to be accepted but has to be weighed like any other piece of evidence. If that was the defendant’s state of mind, or may have been, he is entitled to be acquitted…What a jury must not do is to say to themselves, ‘if we had been in his place we would have known we were acting dishonestly, so he must have known he was’.
This is a subjective test which focuses on D’s state of mind and not the standards of the ordinary reasonable person. Lord Lane, in the concluding part of his judgment, suggests that a wholly subjective test ‘abandons all standards but that of the accused himself’ – in other words any defendant could raise as a defence that he thought he was acting honestly even if by other people’s standards his actions were manifestly dishonest. b. The Court of Appeal in Feely set out a model direction to the jury in the following terms: ‘Jurors, when deciding whether an appropriation was dishonest can be reasonably expected to, and should, apply the current standards of ordinary decent people.’ This is wholly objective and ignores D’s actual state of mind. Lord Lane suggests that to ignore D’s state of mind entirely would be inappropriate as morally a D who genuinely believes their conduct to be honest by anyone’s standards should not be convicted.
Activity 15.11 a. This example was used by Lord Lane to illustrate his dissatisfaction with a purely objective test. D would argue in this case that his actions were objectively honest, because where he comes from nobody pays to ride on a bus. However, if we apply the Ghosh test we must first ask – would ordinary decent people regard this conduct as dishonest? The answer must be ‘yes’ – no-one is likely to consider that deliberately not paying on public transport is honest. Therefore we need to consider the second part of the test – did D realise that ordinary decent people would regard his conduct as dishonest? In this case D could argue ‘no’ – as a stranger to our customs he would not. He would therefore escape liability, as Lord Lane suggested would be appropriate in this case. b. This example was used by Lord Lane to illustrate his dissatisfaction with a purely subjective test. Robin Hood would argue that he believed his actions were honest because of his honourable motive for failing to pay his taxes. However, if we apply the Ghosh test – would ordinary decent people regard this as dishonest? Yes – deliberately failing to pay tax is, by anyone’s standards, dishonest. If you then ask Robin Hood whether he realised that ordinary decent people would regard his conduct as dishonest, he would have to say yes. He may disagree with them but he knows that it is objectively dishonest to deliberately fail to pay taxes. He would therefore be dishonest for the purposes of the Theft Act 1968. (Remember that motive is irrelevant to criminal liability.) c. Would a jury find the act of intentionally taking a camera that does not belong to D from V’s unlocked car dishonest? If so, you then need to ask, would Dave realise that the jury would consider his actions to be dishonest? His statement to the police may indicate that he did not. d. Would a jury consider that intentionally taking stationery from the stationery cupboard for purposes other than work is dishonest? This is an open question, as some may consider this to be normal conduct in a workplace and would agree with Jane that it is a perk of the job. The Ghosh test may therefore fail at this point. If the jury agreed that it was dishonest, they would then have to consider whether Jane realised that the jury would find her actions dishonest. Again, her response to her boss suggests not.
Criminal law Feedback to activities
Activity 15.12 a. D had obtained unexpired London Underground tickets and re-sold them to other passengers. b. D argued that when the tickets were re-used by those who had bought them, they would eventually be returned to London Underground. c. The Court of Appeal held that he has disregarded or usurped the sole right of London Underground to sell tickets on their transport system. d. The Court of Appeal also followed the dicta in Fernandes and held that D had risked the loss of the tickets. D had therefore intended to treat the tickets as his own to dispose of regardless of London Underground’s rights. D, by selling the tickets, had effectively abandoned them, not caring what happened to them.
Activity 15.13 This scenario is similar to the facts of Velumyl [1989] Crim LR 299. In that case, D borrowed £1,050 from a safe at work to lend to a friend, intending to repay the money the following Monday morning. D was held to have intended to permanently deprive his employers of the money, as he had not intended to repay the same notes and coins that he had borrowed. His intention was to replace the money with different notes and coins. In this scenario, as D hands the actual borrowed £10 note to the cashier, he cannot have intended to return the same £10 note to V and therefore has an intention to permanently deprive V of the note. Of course, for a charge of theft, D would need to be found to be dishonest and in this case that is unlikely.
Activity 15.14 The old deception offences were notoriously technical. On the one hand they overlapped but on the other they outline very particular forms of ‘obtaining’ which created difficulties for prosecutors in selecting precisely the right charge for a defendant in any particular circumstances. The wrong charge could be brought, depending on precisely how and when a fraudster had paid for something or whether, for example, obtaining a free ride on a train amounted to obtaining property (the unpaid fare) or a service (the ride on a train). The requirement that there be a causal connection between the deception and the obtaining (i.e. that the deception was operative) was problematic in practice. The case law on this demonstrates how in some cases where the victim of the deception gave no thought to whether they were being deceived or were happy to hand over goods or provide services despite any suspicion of being deceived, for example shop assistants accepting a credit card being used fraudulently. This resulted in the courts interpreting the requirement of causation very loosely – see Charles [1977] and Lambie [1982]. These technical difficulties with the old law resulted in over-reliance by prosecutors on the notoriously vague, common law offence of conspiracy to defraud, which carried its own interpretative problems. Despite the detailed provisions of the two Theft Acts in relation to deception, the courts began to encounter problems in applying the old law to new ways of committing fraud, particularly where defendants used new technologies such as the instant electronic transfer of money. The 1968 and 1978 Acts were drafted before such technologies were available and had not anticipated this form of obtaining. Parliament responded to these difficulties by amending the Theft Act 1968 incrementally, particularly in response to the case of Preddy [1996]. However, Ormerod argues that such incremental changes can only ever close one loophole in the law at a time, while technologies and the way that people carry out commercial transactions are changing constantly, providing new challenges for the law. The Law Commission concluded that what was needed was a comprehensive and coherent package of offences designed to keep pace with these technological and commercial changes.
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Activity 15.15 This scenario demonstrates the obscurity of the notions of falsehood and truth under the Act. The crucial distinction to be made is whether exaggerated claims about the cost of the materials and the labour amount to a falsehood which should be criminalised or whether these are legitimate, if rather ‘sharp’, business practices through which Harry is attempting to maximise his profits. Harry’s claim that the paint costs £300 is clearly false as it only costs him £200. Similarly his claim to offer professional cleaning, when in fact he merely uses a domestic vacuum cleaner may also be false. Both may cause detriment to the victim. However, Harry’s claim to have been in business for 25 years is not wholly true. Yet does this cause any detriment to Mary? Harry’s liability my hinge on the mens rea elements of knowing the statements are misleading, intent to cause loss and dishonesty which will be discussed below. Yet David Ormerod criticises the Act’s use of the word ‘misleading’ for potentially criminalising businesses which make exaggerated or less than wholly true statements about their products and services in defining the actus reus of the offence.
Activity 15.16 a. D and his friends entered a restaurant and ordered a meal. After eating the meal D changed his mind about paying and agreed with his friends that they would leave without paying. D waited for the waiter to go into the kitchen and then ran out of the restaurant without paying the bill. D had, by his conduct in entering the restaurant and ordering a meal, made a representation that he could and would pay for it. A point of contention in this case was whether D’s deception was committed by his conduct in entering the restaurant and ordering a meal or was it committed by changing his mind about paying and saying nothing? Lord MacDermott argued that when D entered the restaurant he had the intention to pay and thought he had enough money. So his representation as to his present intentions were at that point true and therefore there was initially no deception. After the meal D formed a new intention not to pay, which was at that time false. At that point there was a deception by conduct as D, through failing to communicate the change in his intentions, implied to the waiter for a short period that he was an honest customer, when he was not. A false representation here may be seen as a continuing act, which began as a true representation but became false. Effectively D is ‘failing to undeceive’ the victim or committing a false representation by omission. Under the new law it would not matter whether the false representation was made by his initial conduct or his later silence, since both are clearly covered by s.2. b. In Charles D was granted an overdraft of £100 by his bank and was given a cheque book and a banker’s card, on which was printed a statement that the bank would honour any cheque tendered up to the value of £30 where the cheque card was used. D used the card to guarantee 25 cheques to the value of £30 each, having already exceeded his overdraft and contrary to the express instructions of his bank manager. The House of Lords held that in tendering a cheque D made a representation to the payee that he had the authority to enter, on behalf of the bank, into the contract expressed on the card that the bank would honour the cheque. If D knows that the bank had withdrawn that authority then the representation would be false and could amount to a deception. c. In Gilmartin D tendered four post-dated cheques at a time when his bank account was heavily overdrawn. All four cheques were dishonoured. D had used the cheques to buy goods which he sold in return for cheques made out for cash and claimed that he intended to buy back the post-dated cheques with the cheques for cash. The Court of Appeal held that in tendering a post-dated cheque D impliedly represents to the payee that on the date the cheque was tendered it would be honoured by the bank on or after the date specified on the cheque. On the date that D hands over the cheque he must be certain that there will be funds in the account on the day that the cheque is presented for payment otherwise he is making a false representation which can amount to deception.
Criminal law Feedback to activities d. In Lambie D used a credit card in a shop to pay for goods knowing that she was well over her credit limit and that she had no authorisation to use the card according to the terms and conditions of use. The House of Lords held that in tendering a credit card D makes a representation that she is authorised to enter into contracts on behalf of the credit card company, binding the company to honour payment to the shop. If D knows this to be false this is a false representation which can amount to a deception.
Activity 15.17 D has made an express representation that the photographs for sale are signed. This is true. However, his representation may be deemed to be misleading, because a potential buyer may assume from his words that the photographs are signed by Jonny Brown, when in fact they are not. D knows that his representation is, or may be, misleading. In fact all three cases fulfil the actus reus of the s.2 offence. In (a) Carol is induced to buy the photograph by the false representation, so this would be covered by the new law and would have been covered by the old law, since the representation is ‘operative’. Emma, in (b), does not believe the representation, but buys a photograph anyway, but under the new law the actus reus is complete once the false representation is made. In (c) Flora is an even more stark and controversial example since she is completely unaware that she is being deceived and is not interested in the false representation.
Activity 15.18 a. It seems clear that anyone who secretly profits by abusing their position as an employee of a company will be covered by this section. Bruno may be said to be in a position to safeguard (or at least not to act against) the financial interests of his employer. Through his actions, he intends to make a gain for himself and thereby cause a loss to his employer. His liability would depend on his acts being deemed to be dishonest under the Ghosh test. b. This is a rather more difficult example. There may be evidence of dishonesty here and James clearly intends to cause Len a loss, or at least expose him to the risk of loss, but the question is, is James in a position to safeguard his neighbour’s financial interests? It depends on the nature of their relationship and whether this falls into the category of relationships which the Law Commission described as ‘at arm’s length’. c. Doris is an employee and may be deemed to be in a similar position to Bruno in example (a), that is, she is secretly profiting from her position as employee of the charity shop. The fact that she works voluntarily is unlikely to affect the position of trust in which she is placed in the shop. d. George is the trustee of a trust of which Harriet is the beneficiary. He is therefore clearly in a position in which he is expected to safeguard her financial interests and he abuses this position with intent to cause her loss.
Chapter 16 Activity 16.1 a. In Dawson and James [1976] D nudged V, and while V was unbalanced another person stole his wallet. The court held that a push or nudge was sufficient force. b. The Court of Appeal held that the force did not need to be overpowering, merely sufficient in order to steal. c. In Clouden [1987] D wrenched a bag from V’s wrist.
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Activity 16.2 a. Although D eventually entered the building in order to have sex with V, in order to be guilty of burglary he had to have entered as a trespasser. It was not clear from the evidence in this case whether V had invited D in while he was on the outer windowsill of the bedroom or whether he had climbed onto the inner windowsill. The court therefore had to consider whether, when he was on the outer windowsill, he had ‘entered’ the building. b. The Court of Appeal stated that full entry of D’s entire body was not necessary. What was required was a ‘substantial and effective entry’. The jury had not been properly directed to consider this and so D’s conviction was quashed. The implication made by the Court of Appeal was that had D still been on the outer windowsill at the time that V invited him in, then he would not have made a substantial and effective entry at the time that he was a trespasser.
Activity 16.3 a. In Brown D had leaned through a broken shop window and was found rummaging around for goods. In Ryan D leaned inside a window, but became trapped with only his head and right arm inside the window. b. The Court of Appeal in Brown said that the word ‘substantial’ was of no assistance and that the test is whether the entry is ‘effective’. In this case, D had made an effective entry for the purposes of burglary even though only the top part of his body had entered the shop and his feet remained on the ground outside. c. Ryan was held to have made an ‘effective’ entry even though he was not able to steal anything as only his head and right arm were inside the window and both were trapped. The decision in Ryan does not rest easily alongside the decision in Brown as it is difficult to see how Ryan’s entry was in any way effective for the purposes of burglary. The courts have provided a test for entry: it must be ‘effective’, but it is still not clear what the word ‘effective’ means here and what the entry needs to be effective for.
Chapter 17 Activity 17.1 1.
A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence.
2. Section 1(1) of the Criminal Damage Act 1971.
Activity 17.2 1.
The actus reus of simple criminal damage is the destruction of or damage to property belonging to another. It is necessary to consider the meaning of the terms ‘destroy’, ‘damage’, ‘property’ and ‘belonging to another’ as they apply under the 1971 Act.
2. The destruction of property could also amount to theft contrary to s.1 of the Theft Act 1968.
Activity 17.3 a. Bill. It is likely that this would amount to criminal damage as it has been held that property may be damaged even though there is no interference with its performance or if it is made less valuable. (King v Lees (1948) 65 TLR 21) and food is likely to be damaged by spoiling (Roper v Knott [1898] 1 QB 868).
Criminal law Feedback to activities b. Susie. As to whether Susie’s pavement pictures constitute criminal damage might depend upon the potential effort and expense which may be involved in rectifying the harm. In Hardman pavement pictures done in water soluble paint were held to amount to damage because the local authority was put to the expense of using high pressure water jets to remove them. c. Jill. In A (a juvenile) v R [1978] it was held that spitting on a policeman’s coat would not amount to criminal damage where the spittle could be removed with a damp cloth. It would seem that Jill would not be guilty of criminal damage unless she spat something at Tom which would require expenditure to clean. d. Brian. In Morphitis v Salmon [1990] it was held by the Divisional Court of the Queen’s Bench that as a scratch amounted to a normal incident in relation to scaffolding and would not amount to an impairment of its value or usefulness and was not ‘damage’ for the purposes of the Criminal Damage Act.
Activity 17.4 Smith’s comment on Lloyd: a. Generally a person can, in law, consent to damage to their property. Such a consent is very unlikely to be contrary to public policy. In the case of Lloyd the Queen’s Bench Division held that the magistrates’ court had rightly found that Lloyd had consented to the risk of his car being damaged, although Smith’s view is that it is unlikely that the owner of property would be deemed to have consented to a wholly unreasonable condition. b. Although the court rejected Lloyd’s argument that clamping his car was an offence of criminal damage, Smith is of the view that if a car can be damaged by the removal of something, ‘it seems logical that it can be damaged by adding something’. However, it does not automatically follow that it would be criminal damage: it might be that the clamper had the right to clamp but as Smith points out in his commentary: ‘Neither Stear v Scott nor the present case decides whether he has the right to do it or not.’ c. Because the court said it was bound by the ratio decidendi in Stear v Scott but in Smith’s view it is not entirely clear that the ratio decidendi of the two cases is the same.
Activity 17.5 a. Three differences:
Land may not be stolen (see Chapter 12) but it can be the subject of criminal damage.
Intangible property can be stolen (see Chapter 12) but it cannot be the subject of criminal damage.
Although it is not normally theft to pick wild mushrooms, fruit or foliage it is theft when it is done for commercial purposes. Whatever the motive, it is not criminal damage although you should note that land itself may be the subject of criminal damage.
b. Jane: i.
Provided these were wild mushrooms Jane will not be guilty of criminal damage as wild mushrooms are specifically excluded by s.10(1)(a) from the definition of property capable of being damaged for the purposes of the Criminal Damage Act.
ii. Jane is guilty of criminal damage; she has damaged property belonging to another. The fact that she might get wet in the rain is unlikely to be sufficient to afford her the defence under s.5(2)(a).
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Activity 17.6 In essence property will be treated as belonging to another who:
has custody or control of it
has a proprietary right or interest in it (this includes the situation where property is subject to a trust and it is provided that the person to whom it belongs is any person having a right to enforce the trust)
has a charge on it.
Activity 17.7 a. Section 10(2) of the Criminal Damage Act does not include property got by another’s mistake as does s.5(4) of the Theft Act 1968. Section 10(2) makes explicit (s.10(2)(c)), which s.5 does not, that property will be treated as belonging to a person who has a charge on it. b. The car belongs to Erica and s.1(1) of the Criminal Damage Act provides that the property must belong to another. She is therefore entitled, in law, to destroy or damage her car; it will thus not amount to criminal damage (see Denton [1982]). If Erica did make a successful fraudulent insurance claim she might be guilty of an offence of deception.
Activity 17.8 i.
The effect of this is that if the jury is not satisfied beyond reasonable doubt that the defendant intended to cause the damage or destruction of the property but is satisfied beyond reasonable doubt that the defendant was reckless as to the destruction or damage they can convict of criminal damage contrary to section 1(1). Where the indictment does reflect these alternative states of mind the judge must take care to make the different issues very clear to the jury (Mason [2005] All ER (D)). Note that a defendant convicted of intentional criminal damage is likely to receive a higher sentence than a defendant convicted of reckless criminal damage
ii. Following the case of R v G [2004] AC 1034 recklessness in this context means foresight of consequences on the part of the defendant. See Chapter 6.
Activity 17.9 a. Note that it is not sufficient merely to prove that a defendant intended the particular conduct which resulted in the damage. To intend to kick a ball in the street is not to be equated with intending to break a window. Thus, where a defendant has broken a window having kicked a ball through it, it must be proved that he intended to break the window in order to convict him of intentional criminal damage. If the prosecution cannot prove that beyond reasonable doubt, he will not be guilty of intentional criminal damage. (Note that if John was charged with intentionally or recklessly damaging property belonging to another, if the prosecution proved that he was reckless – see below – he would be properly convicted of reckless criminal damage.) b. It is no offence under s.1(1) where a defendant intends to destroy or damage property which is his own property or which he honestly but mistakenly believes to be his own. As James LJ said in the case of Smith [1974] 1 All ER 632:
Criminal law Feedback to activities … [I]n our judgment no offence is committed under this section if a person destroys or causes damage to property belonging to another if he does so in the honest though mistaken belief that the property is his own and provided that the belief is honestly held it is irrelevant to consider whether or not it is a justifiable belief.
It follows that if Susie honestly believed the book belonged to her then she would not be guilty of criminal damage.
Activity 17.10 The difference is that a defendant can be guilty of the aggravated form of criminal damage by destroying or damaging his own property; this offence is not restricted to the destruction or damage of another’s property. Therefore if D causes damage to an electrical appliance which belongs to him, knowing that V will use it and intending thereby to endanger V’s life (or being reckless as to whether V’s life will be endangered) D will be guilty of aggravated criminal damage.
Activity 17.11 It means that, in addition to proof of the ‘basic mens rea’ being required, it must also be proved that the defendant had the ‘ulterior mens rea’ for the crime, i.e. mens rea which goes beyond the actus reus. The ulterior mens rea is that expressed in s.1(2)(b) i.e. intention or recklessness as to whether life is endangered. As this is a mens rea and not an actus reus requirement it does not matter whether or not life is, in fact, endangered. Proof of the defendant’s intention or recklessness as to this is sufficient. Therefore, if D sets fire to a building (see arson below) intending or being reckless as to whether life is endangered thereby, it will be no defence that the occupants of that building managed to leave it safely and were never, in fact, in any danger
Activity 17.12 Lord Bridge in R v Steer: a. ‘Whether, upon a true construction of s.1(2)(b) of the Criminal Damage Act 1971 the prosecution are required to prove that the danger to life resulted from the destruction of or damage to the property, or whether it is sufficient for the prosecution to prove that it resulted from the act of the defendant which caused the destruction or damage.’ b. There was no case to answer on count 2 on the ground that, insofar as the lives of Mr and Mrs Gregory had been endangered, the danger had not been caused by the damage done to the bungalow, but by the shot fired from the respondent’s rifle. c. The phrase in s.1(2)(b) of the Act of 1971 ‘by the destruction or damage’ refers on its true construction not only to the destruction of or damage to property as the cause of the danger to life on which the mental element in the aggravated offence under the subsection depends, but also to the act of the defendant which causes that destruction or damage. d. It should be resolved in favour of the defence. e. He could find no ambiguity: ‘It seems to be that the meaning for which the respondent contends is the only meaning which the language can bear.’ f.
Because Hardie was concerned solely with the effect of self-administered tranquilising drugs on the state of mind of the defendant. It had nothing whatever to do with the issue of causation arising in the instant case.
g. ‘On the true construction of s.1(2)(b) of the Criminal Damage Act 1971 the prosecution are required to prove that the danger to life resulted from the destruction of or damage to property; it is not sufficient for the prosecution to prove that it resulted from the act of the defendant which caused the destruction or damage.’
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Activity 17.13 1.
Arson is destroying or damaging property by fire. Section 1(3) of the Criminal Damage Act 1971 provides that: ‘An offence committed under this section by destroying or damaging property by fire shall be charged as arson.’
2. There are two forms of arson: one under subsection (1) and one under subsection (2) combined in each case with subsection (3). 3. The aggravated form of arson (subsections (2) and (3)) can be committed in respect of the defendant’s own property. See again subsection (2).
Activity 17.14 a. Where the defendant believes that a person entitled to consent to the destruction or damage has consented to it, or would do so if that person knew of the circumstances, or b. Where the defendant acted in order to protect property or a property interest (either his own or another’s) in the belief that the property or interest was in immediate need of protection and that the actions were reasonable in all the circumstances.
Activity 17.15 a. Here the defendant set fire to some bedding in a block of old people’s flats. It was decided that it was to draw attention to the fact that the fire alarm was defective and not to protect property which is the essence of the defence b. It is for the court to rule as a matter of law whether or not the defendant’s purpose amounts to a purpose of protecting property (Hill and Hall [1989] Crim LR 136). c. If a person acts with more than one purpose, it is sufficient that one purpose is to protect property (see Chamberlain v Lindon). d. In Kelleher [2003] EWCA Crim 2846 the defendant who decapitated a statue of Margaret Thatcher in an art gallery and was charged with criminal damage contrary to s.1(1) of the Act, failed with his defence under s.5(2)(b). He argued that his damage to the statue was to bring attention to those policies of Margaret Thatcher when she was Prime Minister which fostered materialism and continued to make the world more dangerous and would eventually lead to the destruction of the planet. At his first trial the jury was unable to come to a verdict but at his retrial the trial judge directed the jury to convict as the defence under s.5(2) did not apply. The defendant’s appeal was dismissed. The trial judge’s direction to the jury to convict was wrong but this did not justify allowing the appeal. The defendant’s purposes fell outside the scope of those provided by s.5(2): there was no evidence that he had believed that his conduct was necessary in order to protect his own or another’s property or right or interest.