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Criminal Law Notes
A body of rule listing the various criminal offences, identifying their elements or ingredients and
specifying potential punishment
...
If so, whether it was a misdemeanour or a Felony
...
They include a wide array of offences, for example murder, rape, theft
...

Misdemeanour are lesser offences
...

The modern distinctions between arrestable and non-arrestable offences is illustrated in the Police
and Criminal Evidence Act (PACE) 1984
...

However, modern abolition of those distinctions gave way to a widening of police power
...
This gives police greater powers of arrest than ever
before, as in the past it had to be justified by reference to seriousness of the offence
...
Criminal Law Act
1977 distinguishes between:
Summary Offences: Minor offences, triable at the Magistrates court
...

Offences triable either way: Offences that could be either tried at the Magistrates court or the
Crown Court, depending on the severity on the individual crime
...

Powers to enter to arrest, but not search, now extend to a number of specific though nonindictable offences
...

some other form of compensation
...

to trial and sentence
...

Trialled by both Judge and Jury
...

Outcome is up to the Judge’s discretion, i
...

Outcome is chosen by the claimant, i
...

community sentence, prison sentence etc
damages or compensation etc
Often a case can be pursued in both civil and criminal courts at the same time
...
By contrast, individuals are normally able to protect themselves against breaches
of contract (and tort)… And undo any damage suffered through the civil courts…”
Lamont’s view:
A crime is “anything that involved the sort of wrong that warrants punishment by the state
...

Utilitarians; might see anything causing harm to others as warranting as a penalty
...

Religions; often equate breaches of morality with crime
...
To forbid and prevent conduct that justifiably inflicts or threatens substantial harm to
individual or public interests
...
To control persons whose conduct indicates they are disposed to commit crimes
...
To safeguard conduct that is without fault from condemnation as criminal
4
...

5
...

Purposes of criminal law:
1
...

3
...

5
...

7
...


Protect public from arm
Preserve order
Protect vulnerable people
Punish those who deserve it
Reform the offender
Deter offenders and potential offenders
Educate about appropriate behaviour
Enforce moral values

Core principles of criminal law: Criminal law should:
1
...

3
...


Only censure persons for substantial wrongdoing
Be enforced with respect for equal treatment and proportionality
Ensure at least the minimum human rights protections for persons charged
Ensure sentences are proportionate to the seriousness of the wrong doing

Jareborg’s different Opinion:
He accepts criminal law aims to protect the interests of individuals as well as collective and state
interests
...
He sees a main purpose to stop over criminalisation and abuse of criminal
process
...
Remember the more laws there
are the less freedom there will be for the people
...
The common law (Judge-made law)
2
...
Secondary/Delegated legislation (Statutory instruments/ regulations/ bye laws…)
Codification of the law:
Put all the law into one codified document, i
...
one statute/act
One document in clear language containing all the criminal law and including all the criminal law and
including all the principles that should be inherent in such law
...

2
...

4
...
It will not and cannot provide all the answers and absolute certainty
...
Would probably lose the benefit of flexibility provided by our common law system
...
Autonomy – The right to live one’s life as one likes
...
It restricts the extent of the criminal law, and it justifies
censure
...
Harm – The ‘harm principle
...
His
own god, either physical or moral is not sufficient warrant
...
”
3
...


Culpability:
Crimes usually require proof of more than just the harm caused
...
There also needs to be proof of blameworthiness in causing the harm
...

Criminal Law concerns the same conditions for liability universally:
1
...

3
...


Capacity
Prohibited conduct, circumstances or outcome/result
...


Does the law enforce morality and should it? Should the law be used to penalise immoral
behaviour?
Hart v Devlin debate
Devlin's philosophy of legal moralism takes an idealist's approach to role of law in society
...
According to Devlin, when a
behaviour reached the limits of "intolerance, indignation and disgust," legislation against it was
necessary
...
Hart's philosophy of law held that laws should not be based only on popular moral
consensus, in the absence of other harms
...

Homosexuality was illegal and individuals were convicted for partaking in criminal behaviour
...

Lord Devlin’s view was that society as what we knew it couldn’t survive without morals
...

Professor Hart opposed and took the view that morality was separate from law and the law should
not interfere
...
Shaw v
...
P
...

The appellant published a 'ladies directory' which listed contact details of prostitutes, the
services they offered and nude pictures
...
He was convicted of conspiracy to corrupt public morals,
living on the earnings of prostitution and an offence under the Obscene Publications Act
1959
...
Offence known as ‘conspiracy’ to corrupt public morals/outrage public
decency
...
Although technically
according to law written by parliament Shaw was not guilty of anything, the judges
convicted him on the basis of morality
...

2
...
D
...
P
...
In this magazine advertisements were
placed by homosexuals seeking to meet other like minded individuals to engage in sexual
practices
...
The House of Lords doubted the correctness of the decision in Shaw but
declined to depart from it
...

3
...
Lemon:
In an edition of the newspaper ‘The Gay News’ there was a poem which implied that Jesus
Christ was homosexual
...
She commenced proceedings against Lemon and he was convicted on the basis of
blasphemy and conspiracy
...
The case of Mr Chowdhury
...
Lemon, he saw a publication which was blasphemous to the Islam
race
...
However, the courts didn’t find the defendant guilty as the courts and Judges
ruled that blasphemy can only be against Christianity
...
R v
...
Its not illegal to engage in this type of behaviour, theyre all
consenting adults in private, why should the law interfere?
Nails were being inserted into their bodies, however there were a couple of incidences
where they were hospitalised and so police got involved and they were summoned to court
...
”
Conflicting views of Judges
...

Claimed their privacy had been infringed and claimed this intervention was a breach of
Human Rights Act
...
Interestingly, the European Court of Human Rights sided with
the majority of House of Lords
...
” Issues of morality are a matter of
their own
...

The idea of morality versus the law is seen in the conjoined twin case
...

Mary and Jodie were conjoined twins joined at the pelvis
...
However, Mary was weaker, she was described as having a primitive
brain and was completely dependent on Jodie for her survival
...
If they operated to separate them, this would inevitably lead to the death of Mary,
but Jodie would have a strong chance of living an independent life
...
The doctors applied to the court for a declaration that it would be
lawful and in the best interests of the children to operate
...
The parents appealed to the Court of Appeal on the grounds that the learned judge erred
in holding that the operation was (i) in Mary's best interest, (ii) that it was in Jodie's best interest,
and (iii) that in any event it would be legal
...
The operation could be legally carried out by the doctors
...
)

The report recommended that the law changed, The Sexual Offences Act 1967 which endorsed the
recommendations of the Woldenden Committee decriminalised homosexual activities between
consenting adult male in private, but did not
...

Offences today related to prostitution:
1
...

2
...

3
...

The state should only criminalise substantial wrongdoing that causes harm to individuals and society
or because it is necessary to protect vulnerable members of society
...

Criminal Law Should:




Be enforced with respect for equal treatment and proportionality
Sentences should be proportionate and reflect seriousness of the wrongdoing
...
2-6
...


Prosecution must prove beyond reasonable doubt:
1
...

2
...
Absence of a defence
4
...

There are two types of causation; Factual and Legal
...
This asks, 'but for the actions of the
defendant, would the result have occurred?' If yes, the result would have occurred in any event, the
defendant is not liable
...

R v White [1910] 2 KB 124
The defendant put some poison in his mother's milk with the intention of killing her
...
Medical reports revealed that she died from a
heart attack and not the poison
...
He was liable for attempt
...
i
...
would the result have occurred but for the actions of the
defendant? If the answer is yes the defendant is not liable
...
Legal causation requires that the harm must result from a culpable act
...
A child ran
in front of the cart and was killed
...

This case is authority for the point that the result must be caused by a culpable act
...
The defendant was
charged with gross negligence manslaughter for his involvement in an incident involving a train
becoming derailed
...

He misread the train time-table and ordered the work to be done at a time when the train was due
...
The defendant argued
that if the lookout man and driver were doing their job correctly the incident would not have
occurred
...
The defendant's action need not be the only cause
...

However, this does not apply where the offence is one of strict liability:
R v Williams [2011] 1 WLR 588
The appellant was driving on a dual carriageway when a man stepped into the road right in front of
him
...
The appellant was not speeding and had not in
any way been driving recklessly or without care
...

However, at the time of incident, the appellant had no driving licence or insurance
...
3ZB Road Traffic Act 1988
...
His
failure to have a licence and insurance was at fault but it wasn’t this that caused the death
...

Held: Appeal dismissed
...
The offence was one of strict liability and
therefore fault in causing death was not required
...

2
...
& F 504
Benge (defendant) was a prisoner serving as foreman of a gang of workers who were taking up
railroad tracks and repairing them
...
m
...
A worker was sent ahead to signal any approaching train to stop, but instead of going
1000 yards ahead he went only 540 yards, leaving less time for a train to stop
...
By the time the engine-driver applied the brakes, it
was too late to stop the train before it reached the area where the tracks had been taken up
...
At his trial for negligently causing the

accident, Benge argued that, although he was negligent, the accident could not have occurred
without the negligence of the flagman in not going far enough up the tracks and the failure of the
engine-driver to pay careful attention
...
There is no record of an appeal
...
There must be no novus actus interveniens
...
Different
tests apply to decide if the chain has been broken depending on the intervening party
...
Act of a third party
The act of a third party will generally break the chain of causation unless the action was foreseeable:
R v Pagett (1983) 76 Cr App R 279
The appellant aged 31 had separated from his wife and formed a relationship with a 16 year old girl
...
She finished the relationship when she was six months pregnant because he
was violent towards her
...
He shot the father in the leg and took the mother at gunpoint and demanded she
took him to where her daughter was
...
He drove off with the mother and daughter
...
He took her to a flat and kept
her hostage
...
He used the girl as a shield as he came out of the flat and
walked along the balcony
...
The appellant fired shots at the police and the police returned fire
...
The appellant was convicted of possession of a firearm with intent to endanger life, kidnap of
the mother and daughter, attempted murder on the father and two police officers and the
manslaughter of the girl
...

Held: Conviction upheld
...
In firing back the
police officers were acting in self -defence
...

b)
...

She had not met the man before and it was 3
...
The defendant drove in a different direction to
where he told her he was taking her and then stopped in a remote place and started making sexual
advances towards her
...
He then started making
further advances whilst driving and she jumped out of the moving car to escape him
...
The defendant was convicted of actual bodily harm under
s
...
He appealed contending that he did not intend or
foresee a risk of her suffering actual bodily harm from his actions and that he did not foresee the
possibility of her jumping out of the car and therefore her actions amounted to a novus actus
interveniens
...
47
...


Where the victim's actions were a natural result of the defendant's actions it matters not whether
the defendant could foresee the result
...

R v Williams & Davis [1992] Crim LR 198
The defendants picked up a hitchhiker on the way to Glastonbury festival
...
The prosecution alleged that the
defendants were in the course of robbing him when he jumped out and thus their actions amounted
to constructive manslaughter
...
what he was frightened of was
robbery that this was going to be taken from him by force, and the measure of the force can be
taken from his reaction to it
...
’ The jury
convicted and the defendant appealed
Held: Conviction was quashed as there was an almost total lack of evidence as to the nature of the
threat
...
On the issue of novus actus interveniens Stuart Smith LJ stated: "The nature of the threat
is of importance 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
amounted to a novus actus interveniens and consequently broke the chain of causation
...

c) Medical intervention
Where medical intervention contributes to death, the courts have been inconsistent in their
approach
...
App
...
152
The defendant stabbed the victim
...
He was also given excessive amounts of intravenous
liquids
...
At the time of death his wounds
were starting to heal
...
The defendant was not
liable for his death
...
The injured
soldier was taken to the medics but was dropped twice on route
...
They failed to diagnose that his lung had been punctured
...
The defendant was convicted of murder and appealed contending that if the victim had
received the correct medical treatment he would not have died
...

R v Cheshire [1991] 1 WLR 844
The defendant shot a man in the stomach and thigh
...
The hospital gave him a tracheotomy (a tube
inserted into the windpipe connected to a ventilator)
...
The defendant was convicted of murder and appealed
...
Intervening medical treatment could only be regarded as excluding the responsibility of the
defendant if it was so independent of the defendant's act and so potent in causing the death, that
the jury regard the defendant's acts as insignificant
...
Thin skull rule (egg shell skull rule)
Under the thin skull rule, the defendant must take his victim as he finds him
...
For example if D commits a minor
assault on V who has a heart condition and V suffers a heart attack and dies
...

This rule applies irrespective of whether the defendant was aware of the condition
...
She collapsed and died
...
She was suffering from a rare thyroid condition which could lead to
death where physical exertion was accompanied by fright and panic
...

Held: The defendant was liable for constructive manslaughter as his unlawful act (assault) caused
death
...
He was therefore fully liable despite the fact an
ordinary person of reasonable fortitude would not have died in such circumstances
...
& R
...
The
victim failed to take care of the wound or get medical assistance and the wound became infected
...
The victim
refused and died
...
She was a practising Jehovah's witness and refused to have a blood transfusion which
would have saved her life
...

Held: The defendant's conviction was upheld
...


Problems with Causation:
Problems with causation is defining the circumstances for establishing causation and when is the
casual link between an act and an event established as well as establishing in what circumstances
the link would be broken
...
They had not been “self-inflicted”
...

“Policy” might explain why Lewis was prosecuted and convicted of an offence
...

If there was the approach to be adopted – once it was established that Lewis was blameworthy this
automatically this automatically resolves the problem of causation
...

Causation does not necessarily follow from a finding of blameworthiness or bad intent
...
G
Williams said “whether or not causation is established is no more than a moral reaction or value or
judgement…” This approach is often open to inconsistency both in prosecutions and verdicts
...
e
...

i
...
if a defendant has guilt (mens rea) he will usually expect or foresee the result that occurred
...


The “but-for” test
...
“If the result would not
have occurred at the time and in the way it did but for the defendant’s conduct, then they have in
fact caused that result
...

Factual (“but for”) cause is not necessarily sufficient to attribute casual responsibility
...
) This is satisfied if the
defendant’s actions are a sufficiently direct cause of the result, or ask… Did some other cause of
sufficient significance “intervene” to break the chain of causation?

Intention:
Intention requires the highest degree of fault of all the levels of mens rea
...
Intention
can be divided into direct and oblique (indirect) intent
...
’ The majority of cases will be quite
straight forward and involve direct intent
...
Eg D intends to kill his

wife
...
The conduct achieves the desired result
...
It is foresight of
consequences (which may not be desired but which will happen
...

Oblique intent can be said to exist where the defendant embarks on a course of conduct to bring
about a desired result, knowing that the consequence of his actions will also bring about another
result
...
Specific Mens Rea
Most really serious offences such as murder, robbery, GBH, burglary… All require proof of
intention and only intention to convict
...
Type of mens rea that must be proved for this offence; intention
...
Basic Mens Rea
Type of mens rea that must be proved for this type of offence; recklessness
...
Negligence
Two Types
...
The
Simple Negligence means negligence which is neither gross nor wanton
...
It differs from gross negligence in degree, but not in kind
...
Strict Liability
Liability which does not depend on actual negligence or intent to harm
...
In relation to oblique intent it
would be concerned only with whether the defendant did foresee the degree of probability of the
result occurring from his actions
...

i
...
Would a reasonable person have foreseen the degree of probability of the result occurring from
the defendant's actions
...
In addition, intention seems to be a concept which naturally
requires a subjective inquiry
...
However, originally an
objective test was applied to decide oblique intent, as illustrated in the following case:
DPP v Smith
A policeman tried to stop the defendant from driving off with stolen goods by jumping on to the
bonnet of the car
...
The defendant argued he did not intend to harm the policeman
...
The defendant was convicted of murder
...
he must as a reasonable man have

contemplated that grievous bodily harm was likely to result to that officer
...
On the
other hand, if you are not satisfied that he intended to inflict grievous bodily harm upon the officer in other words, if you think he could not as a reasonable man have contemplated that grievous
bodily harm would result to the officer in consequence of his actions - well, then, the verdict would
be guilty of manslaughter
...
The Court of Appeal quashed his conviction for
murder and substituted a manslaughter conviction applying a subjective test
...

This position was reversed by statute by s
...

S
...

The effect of this section was considered in the following case:
Hyam v DPP [1975]
The appellant had been having a relationship with a Mr Jones
...
Jones then took up with another
woman Mrs Booth and they were soon to be married
...
00am and poured petrol through the letter box and ignited it with matches
and newspaper
...
Mrs Booth and her
young son managed to escape the fire but her two daughters were killed
...
" The jury convicted of murder
...
The appellant appealed to the House of Lords on the grounds that knowledge that a
certain consequence was a highly probable consequence does not establish an intent to produce
that result but is only evidence from which a jury may infer intent
...
Lord
Hailsham's dissent: I do not believe that knowledge or any degree of foresight is enough
...

The House of Lords accepted a subjective test was applicable
...
8 in that it was accepted that foresight of consequences being
highly probable was sufficient to establish intent
...

R v Moloney [1985]
The defendant shot his step father killing him
...
They had been celebrating the defendant's grandparents’ ruby wedding anniversary
and had consumed a quantity of alcohol
...
The defendant told his step father that he wanted to leave the army
...
He told him he could load, draw and
shoot a gun quicker than him and told him to get the guns
...
The defendant was first to load and draw and the step father said, "I don't
think you have got the guts but if you have pull the trigger"
...
The trial judge directed on
oblique intent and the jury convicted
...

Held: The defendant's conviction for murder was substituted for manslaughter
...

Lord Bridge: “murder is a crime of intent and the jury should be left to use its good sense to decide
whether D acted with intent without any judicial prompting as to it meaning
...

D could be said to intend death where; death was a natural consequence of his voluntary act and did
the defendant see the consequence being as a result of his act
...
This was
considered in R v Hancock and Shankland
R v Hancock and Shankland
The appellants were convicted of murder for the death of a taxi driver
...
They wanted to block the road to the mine to prevent works breaking the picket line
...
The taxi was struck by two lumps of concrete resulting in death of the
driver
...
The appellants argued they only intended to block the road and no
harm was intended to result from the actions
...
" The jury asked further guidance on the issue of intent with regards to foresight and
the judge repeated the direction given
...
The Court of Appeal quashed
the conviction and certified a point of law to the House of Lords as to whether the Maloney direction
was misleading
...

The appropriate direction should include a reference to the degree of probability and in particular an
explanation that the greater the probability of a consequence the more likely it is that the
consequence was foreseen and that if that consequence was foreseen the greater the probability is
that that consequence was also intended
...

R v Nedrick
The appellant held a grudge against Viola Foreshaw
...
A child died in the fire
...
The judge directed the jury as follows: "If when the
accused performed the act of setting fire to the house, he knew that it was highly probable that the
act would result in serious bodily injury to somebody inside the house, even though he did not
desire it - desire to bring that result about - he is guilty or murder
...

Held: There was a clear misdirection
...

Lord Lane CJ:
"the jury should be directed that they are not entitled to infer the necessary intention, unless they
feel sure that death or serious bodily harm was a virtual certainty (barring some unforeseen
intervention) as a result of the defendant's actions and that the defendant appreciated that such
was the case
...


The House of Lords largely approved of the
test with some minor modifications setting the current test of oblique intent
...
The baby suffered a fractured
skull and died
...
" The jury convicted of murder and also rejected the
defence of provocation
...
The Court of Appeal rejected the appeal holding that there was
no absolute obligation to refer to virtual certainty
...
There was
a material misdirection which expanded the mens rea of murder and therefore the murder
conviction was unsafe
...
The appropriate direction is: "Where the charge is murder and in the rare cases
where the simple direction is not enough, the jury should be directed that they are not entitled to
infer the necessary intention, unless they feel sure that death or serious bodily harm was a virtual
certainty (barring some unforeseen intervention) as a result of the defendant's actions and that the
defendant appreciated that such was the case
...
"
The current test of oblique intent:
"Where the charge is murder and in the rare cases where the simple direction is not enough, the jury
should be directed that they are not entitled to find the necessary intention, unless they feel sure
that death or serious bodily harm was a virtual certainty (barring some unforeseen intervention) as a
result of the defendant's actions and that the defendant appreciated that such was the case
...

Knowledge and belief:
Many crimes require that D ‘knowingly’ did something
...
Nelsonian knowledge of wilful blindness may also be treated as
“knowing”
...
Belief is something short of knowledge
...

R v
...
This caused
gas to escape
...
He was charged under s 23 of
the Offences against the Person Act 1861 which provides 'Whosoever shall unlawfully and
maliciously administer to or cause to be administered to or taken by any other person any poison or
other destructive or noxious thing, so as thereby to endanger the life of such person, or so as
thereby to inflict upon such person any grievous bodily harm, shall be guilty of felony
...
The jury convicted the defendant and he
appealed
...
e
...
The case of
Caldwell 1981 illustrates the hierarchy of blameworthiness
...
Caldwell 1981
The appellant had been working at a hotel and had a grudge against his employer
...
The hotel had 10
guests sleeping in the hotel at the time
...
The appellant was convicted of aggravated criminal damage
under s
...
The defendant argued that he had given no thought as to the possible endangerment
of life due to his intoxicated state
...

This test of recklessness illustrated in Caldwell no longer applies and was overruled in R v G & R
[2003] 3 WLR
...
The
boys found some old newspapers outside the Co-op which they lit with a lighter and then threw
them under a wheelie bin
...
In fact the burning newspapers set light to the wheelie bin and the fire spread to the Co-op
shop and caused over £1m of damage
...
The House of Lords overruled MPC v Caldwell
[1982] AC 341
...
"
Negligence:
Negligence is not a state of mine, it is simply a failure to comply with the standards of a reasonable
person
...
It is an objective criteria
...
Involuntary manslaughter may arise where the defendant has caused
death but neither intended to cause death nor intended to cause serious bodily harm and thus lacks
the mens rea of murder
...
Gross negligence manslaughter can be said to
apply where the defendant commits a lawful act in such a way as to render the actions
criminal
...

Manslaughter is the only common law offence of negligence – but the cases show that even here
carelessness or simple negligence is not enough
...
For example
the case of Adomako
...
During the
operation an oxygen pipe became disconnected and the patient died
...
The jury convicted him of gross negligence
manslaughter
...
v
...
App
...
8 and Andrews v
...
C
...
v
...
C
...
The Lords ruled that the law as
stated in R v Seymour [1983] 2 A
...
493 should no longer apply since the underlying statutory
provisions on which it rested have now been repealed by the Road Traffic Act 1991
...
v
...
App
...
8 and Andrews v
...
C
...
v
...
C
...
"

In order to prove negligence; a duty of care must have been owed, there has to have been a breach
of that duty of care, and as a result of that breach, damage or injury must have occurred
...
Murder
The intention killing of, or causing grievous bodily harm to, the victim
...

2
...
This includes defendants convicted of
either reckless manslaughter, or constructive manslaughter
...
i
...
the defendant has the actus reus and mens rea of murder
but does not deserve to be labelled a murderer
...
(See below description of each)
3
...
(Coroners and Justice Act 2009 s
54)
...

This new loss of control defence replaces the old defence of provocation
...

The defendant must show (prove) loss of control
...

Judge should direct the jury to consider the defence if evidence of it emerges
...

Both the two requirements must be satisfied in this defence in order for the plea to be successful
...
e
...


A defendant would be able to rely on the defence of loss of control when the killing was not
reasonable in the circumstances
...
e
...

Loss of control must be due to a qualifying trigger:
S
...
(i
...
provocative acts)
iii) A combination of the above
1
...

-Only needs to be a fear of violence not actual violence (including incorrectly believing
violence would be used
...
)
-The threat can be to D or another person
-Trigger only applies where D kills the person posing the threat
...
Trigger Two: Being seriously wronged
...

-Must have a justifiable sense of being seriously wronged
...
)
-The victim who kills the person who raped them might have the defence
...

-D cannot rely on this defence if D said or did something to incite V to say or do something
to provide an excuse to attack V
...
The law expects
people to show self-control but subject to the exceptions of the defence
...
D’s circumstances
2
...
D’s reaction – would a person having lost self-control do what they did?
Exclusions:
D’s fear of violence is to be disregarded if caused by a thing D said or did for purpose of providing an
excuse to use violence
...


Inchoate Offences
Offences can be classified in various ways; such as indictable v summary, specific mens rea v basic
mens rea etc
...
e
...


Inchoate offences – i
...
offences preliminary to (short of) the completion of the intended substantive
offences
...

Only three such Inchoate Offences:
1
...
1
An undertaking to do an act that entails more than mere preparation but does not result in the
successful completion of the act
...
”
Criticisms: The section is badly drafted – is it really limited to ‘acts’ and does not include
‘omissions’? The words ‘more than merely’ are not defined
...

Mens Rea: Intention to commit a named (specified) substantive offence
...

-Should intent not be required as to each element?
-This case drew a discretion between consequences that required proof of intention and
circumstances which did not
...
This case drew a distinction between consequences that required proof
of intention and circumstances which did not
...
Conspiracy
The Criminal Law Act 1977
At Common Law level there are two types of conspiracies: Defraud and Corrupt public morals, or
outrage public decency
...

Mens Rea: D must intend the substantive crime to be carried out
...
Often, even though
the substantive offence has been completed, D may be charged with conspiracy, simply because
it is easier to prove
...

3
...


Previous Actus Reus Tests at Common Law:
1
...
Pre-statute Cases include: Eagleton 1855 and Stonehouse
...

2
...
“Change of Heart”
4
...

Two Types; Physical and Legal
...

Legal impossibility; Was a defence but now that has changed
...


The Serious Crimes Act 2007Section 59 abolishes the old common law offence of incitement and replaces it in Part 2 of that Act
with ss
...

Three New offences involving acts capable of encouraging or assisting a crime; Where D:
1
...
Acts believing a crime will be committed and his act will encourage or assist it
...
Acts and his act is capable of encouraging or assisting one or more of a number of crimes,
believing one or more will be committed and his act will encourage/assist it
...

Prior to the Serious Crime Act 2007, Parliament had created various statutory offences of incitement
– OAPA 1861 s
...
13 and Terrorism
Act 2006 s
...


Participation
Being a party or accessory to the commission of a crime by another
...
) There may be more than one principal
offender, e
...
several (a gang) with a common purpose to kill another…)
A defendant may still be regarded as a principal even though the actus reus of an offence has been
committed by another
...
e
...


The Perpetrator of an actus reus is an innocent agent if he:
1
...

3
...

5
...
(See R v Cogan and Leak
...
Leak took his wife upstairs, undressed her and put her on the bed
...
Leak twice asked his wife if she wanted to have sex with Cogan and she refused
...
Afterward, Cogan had sex with Leak’s wife
...
Cogan gave evidence that he thought
she had consented
...
Both men were convicted but
Cogan’s conviction was quashed on the grounds that even an unreasonable belief that the victim
had consented precluded a conviction for rape
...

Must a principle be guilty of the underlying offense in order for an accomplice to be guilty of aiding
and abetting the commission of that offense?
Held: (Lord Justice Lawton): No
...


They are made liable because:
1
...
Both the principal and the party (accomplice) can be liable for any offence committed by the
principle
...
8
“Whoever shall aid, abet, counsel or procure the commission of any indictable offence… shall be
liable to be tried, indicted or punished as a principal offender
...
44 provides a similar provision for summary offences
...
) Both principal offender and party
will be liable but for different reasons
...
8 states that: An accessory of whatever type is liable to the same extent as the
principal offender and can be punished to the same extent
...
This consequence is graphically illustrated in the following case
...
Police arrived and apprehended B; a policeman went
after C – at which point B shouted out to C “Let him have it!”




C then shot and killed the policeman
Both were convicted of murder but only one was hanged
...
The question for us and the prosecution is how much conduct by an accomplice is
necessary to justify making that person criminally liable?
Four ways of being a party or an accessory:
1
...
Usually at the scene of the crime
...
If the person is part of a shared joint enterprise such as a member of a
gang or group, the presence is also sufficient
...

Allan 1965
Clarkson 1971
2
...

Lord Widgery: i) Aid, Abet, etc… are each independent forms of activity, ii) Abetting is
instigating, inciting, exhorting or countenancing
...

Therefore, at the scene of the crime only
...

Aiding only takes place before or at the time of the principal’s offence
...

Bland 1988
The defendant lived with her co-accused, R, in one room of a shared house
...
The defendant was also charged with possession of a controlled drug
because she was living with R
...
The fact that she and R lived together
in the same room was not sufficient evidence from which the jury could draw such an
inference
...
For example, it
required evidence of encouragement or of some element of control, which was entirely
lacking in the case
...
Counselling
Same activity as abetting but generally limited to such conduct before the principal offence
...
Like abetting, the

party’s conduct must impinge on the mind of the principal offender but need not be shown
to have helped bring about that offence – no need for a casual connection between them
...
Z testified that after being paid
by the defendant he had decided not to carry out the killing, but instead to visit the victim's
house, carrying an unloaded shotgun and a hammer, to act out a charade that would give
the appearance that he had tried to kill her
...
The defendant appealed, submitting that, on Z's evidence there was
no causal connection, or no substantial causal connection
...
It was held that the offence of counselling a person to commit an
offence is made out if it is proved that there was a counselling, that the principal offence
was committed by the person counselled and that the person counselled was acting within
the scope of his authority and not accidentally when his mind did not go with his actions
...

4
...

“To produce by endeavour
...
”
Lord Widgery stated that such activity did not require any conspiracy between procurer and
principal i
...
no need for a consensus between them but the question of causation is crucial
– the procurer’s conduct must be linked/causative to the bringing about of the principal
offence
...
Note, the
mens rea of the party is not an intention to commit the substantive offence, of the principal which
might be a recklessness offence
...
whatever the offence of another might
be…
Guilt depends on the intentional participation in the other’s crime
...

Bainbridge [1959]
Sufficient if a party is aware of the material circumstances which indicate the type of the principal
offence
...

Sufficient if the party is aware or wilfully blind that the principal may commit any of of a limited
number of offences within a group or type
...

He did not know that the terrorists had brought explosives nor did he know the exact nature of their

abominable plan
...
His mistake as to the explosives was no defence
...

Party to a strict offence:
A party needs full mens rea regardless of the kind of offence committed by the principal
...
See Callow v Tillstone
...
His conviction was upheld as the offence was one of strict liability and
it mattered not how diligent he had been to ensure the safety of the meat
...
g he may have a defence
If the principal fail to bring about an actus reus there is nothing the party can be said to have
aided
...

Joint Enterprise Liability (JE)
This arises where 2 or more people together embark on the commission of an offence
...
What if one of them commits a different offence during the burglary such as murder? The
other participant can be convicted as a party to “that” offence (murder) through JE
...
And the crime (murder) must be committed in the course of or
incidental to their common purpose, as illustrated in the following case;
Gnango [2010] EWCA Crim 1691
At approximately 6
...
While talking to her sister in Poland on her mobile telephone, she was
killed by a single shot to the head
...
The two gunmen in question were
seventeen-year-old Armel Gnango and "Bandana man"
...
Scientific examination demonstrated that "Bandana man", not Gnango, had
fired the fatal shot
...
The
killing was widely reported in the media as an example of a "Wild west" shoot out
...
The offence of
counselling and procuring can be committed by the giving of assistance before the full offence
...

Victims as parties
Can a victim be charged as a party to the principal’s offence committed against/on the victim?
Not usually, because the offence committed by the principal exists to protect the victim; or else a
defence should be available
...

Party to an inchoate Offence
Can a person be charged as a party to someone else’s inchoate offence? According to Criminal
Attempts Act 1981 s
...


Strict Liability
“Every offence should be one of strict liability
...
” – Baroness Wootton
...

2
...

4
...

6
...
Doing the prohibited conduct or thing, or being found in the
prohibited places is enough for liability
...
Upon her arrival she was immediately charged with the offence of 'being' an illegal alien
...

Strict Liability offences
Usually mens rea as to only one element of the actus reus (not every element) need to be proved
...
55 of OAPA 1861
The appellant was charged with taking an unmarried girl under the age of 16 out of the possession of
her father contrary to s
...
He knew that the girl was in

the custody of her father but he believed on reasonable grounds that the girl was aged 18
...
The offence was one of strict liability as to age and therefore his
reasonable belief was no defence
...
)
Stated; “unlawfully taking an unmarried girl under 16 out of the possession and against the will of
her father or guardian is an offence
...
He had sat next to a 13
year old girl on a bus and repeatedly asked her to perform oral sex with him
...
The boy
believed the girl was over 14
...
1(1) was
of strict liability in relation to the age of the victim
...

Moreover, the law had moved on since this decision favouring an honest belief of the defendant
which was not dependent upon the belief being reasonable
...
The defendant's conviction was quashed
...
14(1) Sexual Offences Act 1956 with indecent assault on a
girl of 14
...
The trial judge ruled that the prosecution had to
prove an absence of genuine belief that the victim was aged 16 or over
...
The prosecution appealed against that ruling
...
The Court of Appeal certified the
following points of law of general public importance: "(a) Is a defendant entitled to be acquitted of
the offence of indecent assault on a complainant under the age of 16 years, contrary to section 14(1)
of the Sexual Offences Act 1956, if he may hold an honest belief that the complainant in question
was aged 16 years or over? (b) If yes, must the belief be held on reasonable grounds?"
Held: The appeal was allowed
...
14(1)
if he has an honest belief that the girl was over 16
...
Affirmed the principle established in B v DPP that R v Prince did
not set any rule relating to age related crimes and even if it had, it had not survived the ruling in
Sweet v Parsley that there exists a presumption of mens rea
...

In relation to the age element:
Mens Rea (knowledge or recklessness) is to e an implied requirement
...
)
“Unless Parliament has clearly indicated the contrary either expressly or by necessary implication,
the appropriate mental element is an ingredient of every statutory offence
...
The language used
2
...
The mischief sought to be prevented
Whitehouse v Lemon [1979] AC 617
James Kirkup's poem The Love that Dares to Speak its Name was published in the 3 June 1976 issue
of Gay News
...
In early November 1976, Mary Whitehouse obtained a
copy of the poem and announced her intention to bring a private prosecution against the magazine
...
The charges named Gay News Ltd
and Denis Lemon as the publishers
...
The indictment described the offending publication as "a blasphemous libel
concerning the Christian religion, namely an obscene poem and illustration vilifying Christ in his life
and in his crucifixion"
...
Judge Alan KingHamilton QC heard the trial at the Old Bailey on 4 July 1977, with John Mortimer QC and Geoffrey
Robertson representing the accused and John Smyth representing Mary Whitehouse
...
Gay News Ltd was fined £1,000
...
It had been "touch and go", said the
judge, whether he would actually send Denis Lemon to jail
...
Gay News Ltd and Denis
Lemon appealed against conviction and sentence
...
Gay News readers voted by a majority of 20 to 1 in favour of appealing to the
House of Lords
...
At issue was whether or not the offence of blasphemous libel required specific
intent of committing such a blasphemy
...
Lord
Scarman was of the opinion that blasphemy laws should cover all religions and not just Christianity
and sought strict liability for those who "cause grave offence to the religious feelings of some of
their fellow citizens or are such as to tend to deprave and corrupt persons who are likely to read
them"
...

House of Lords made common law offence of blasphemous libel a strict one
...

The offence of conspiracy to outrage public decency (by displaying foetus earrings)
...

Judges: Protectors of Freedom and Liberty
...

Origins of Strict Offences
1
...
i
...
by statute – Act of Parliament or Regulation
...
They are very rarely “created”; recognised by the judges at common law, but nevertheless
some were, such as ‘contempt of court, criminal libel and public nuisance’ and ‘blasphemous
libel and outraging public decency
...


Counter Arguments:






Liability should not be imposed on those who are not blameworthy
Wrong to penalise those who have taken all possible care (due diligence)
Inefficient – often simply delays analysis of fault to the sentencing stage
No evidence that it raises standards
May put small businesses at unfair risk

Matters to Determine Strict Liability:
1
...
External Indicators; Nature of the offence, Presumptions, and Grave social danger (public
policy
...
13
Licensing Act 1872
...

Held: Appeal dismissed and conviction was upheld
...
13 was silent as to mens rea, whereas other
offences under the same Act expressly required proof of knowledge on the part of the defendant
...
Stephen J: "Here, as I have already pointed out, the object of this part of the Act is
to prevent the sale of intoxicating liquor to drunken persons, and it is perfectly natural to carry that
out by throwing on the publican the responsibility of determining whether the person supplied
comes within that category
...
16(2)
Licensing Act 1872
...
The appellant therefore believed he was off duty
...
He was convicted and
appealed contending that knowledge that the officer was on duty was a requirement of the offence
...
Wright J: "There is a presumption
that mens rea, an evil intention, or a knowledge of the wrongfulness of the act, is an essential
ingredient in every offence; but that presumption is liable to be displaced either by the words of the

statute creating the offence or by the subject-matter with which it deals
...
I am, therefore, of opinion that this conviction ought to be
quashed
...

Effect is that the offence remains a strict liability offence unless the proviso or defence is satisfied
...
5
Warner v Metropolitan Police 1969
Upon arrival at London Victoria train station an Italian student got into a taxicab driven by the
defendant
...
The taxi driver informed him that it was a long and expensive journey, and proceeded to take
£6 from the student's open wallet, ostensibly to cover the fare
...

R v Mc Namara 1988 – The courier/postman
R v Marriott 1971 – Amount immaterial
R v Martindale 1986 – forgetfulness irrelevant
Common law analysis and summary
R v City of Sault St Marie (1978)
The city of Sault Ste
...
The city
built a disposal site 20 feet from a stream which, when filled by the disposal company, resulted in
waste seeping into the stream
...
The issue before the court was whether the city's offence should be
classified as strict liability or absolute liability
...

There are three categories of the offence:
1
...
Absolute liability where once the act or omission is proved nothing the accused says or does
will free him from liability
...
e
...
)
3
...

Common Law suggested solutions to replace strict liability
Sweet v Parsley 1970
A school teacher let her house out to students
...


She was unaware of this activity
...
5(6) of the Dangerous Drugs Act 1965
...

Held: The House of Lords looked at the common law before the statute was made
...
Thus the presumption that statutes
do not change the common law was applied in addition to the presumption that mens rea is
required where the offence is a true crime as oppose to a regulatory offence
...
e
...
) or D should have to prove that he had no mens rea, or
prosecution must prove the actus reus but D must then show he was not negligence on a balance of
probabilities
...

Assault
Common assault is a summary offence
...
B
...
”
Actus Reus
The actus reus of assault is any act by D that causes V to apprehend immediate unlawful person
violence
...

1
...
If the victim does not anticipate unlawful personal violence then there is no assault:
R v Lamb [1967] 2 QB 981
Two boys were playing with a revolver
...
The two boys believed that this meant it would not fire
...
As he pulled the trigger the chamber turned and
the gun went off killing the boy
...

Held: There was no unlawful act as no assault had been committed as the victim did not
believe the gun would go off therefore he did not apprehend immediate unlawful personal
violence
...
She was terrified
...

Held: An assault had been committed as the victim had apprehended immediate unlawful
personal violence and the defendant was reckless as to whether she would apprehend such
violence
...
Originally it was thought that only conduct could amount to an assault:
R v Meade and Belt [1823] 1 Lew
...
C
...

Held: No assault was committed
...
Later case
law accepted that words can amount to an assault
...
47 OAPA 1861
...
The case was actually decided on the physical aspects which
demonstrated a battery was present and thus the comments relating to words were merely
obiter dicta
...
He was convicted under s
...
He appealed
contending that silence cannot amount to an assault and that psychiatric injury is not bodily
harm
...
Silence can amount to an assault and psychiatric injury can
amount to bodily harm
...
Assize-time is when the judges were in the town for court
sessions
...


2
...
Smith and Hogan’s Criminal Law (4th
edition), page 351 states; “There can be no assault if it is obvious to the complainant the
defendant is unable to carry out his threat
...
He sent over 800 threatening letters, would follow her home, wrote offensive word
on her front door, drove past her house, stole items from her washing line
...
He was charged with ABH under s
...
The defendant
contended that words alone could not amount to an assault and that the letters could not
amount to an assault as there was no immediacy
...
The jury were entitled in the circumstances to
find that immediacy was present and words can amount to an assault
...

Smith v Chief Constable of Woking [1983] 76 Cr App R 234
The defendant peered through the window of a young woman's home late at night
...
The
woman saw him and screamed but he did not move but kept staring she phoned the police
...
He was convicted and appealed contending that the prosecution had failed to
establish the victim had apprehended immediate unlawful personal violence
...

Held: Conviction upheld

Stephens v Myers [1830] 4 C&P 172
The claimant must have reasonably expected an immediate battery
...
The
defendant was liable for assault
...
Unlawful
If the defendant has a lawful excuse to use force, the actions will not amount to an assault
...
58 Children Act 2004), where
the victim consents, and where the defendant acts in self-defence or prevention of a crime
...
Personal Violence
The term personal violence can be misleading in that the victim need only apprehend the
level of force that amounts to a technical battery
...
e
...


Mens Rea of assault
‘D must intend that V should fear the possibility of immediate violence, or recklessly cause V to fear
the possibility of immediate violence
...

MPC v Fagan [1969] 1Q
...
439
A policeman was directing the defendant to park his car
...
The policeman shouted at him to get off
...
The
defendant argued at the time of the actus reus, the driving onto the foot, he lacked the mens rea of
any offence since it was purely accidental
...

Held: The driving on to the foot and remaining there was part of a continuing act
...

R v Parmenter [1991] 94 Cr App R 193 (Savage and Parmenter)
The defendant was convicted on four counts of causing GBH under s
...
The baby suffered injuries to his boney structures of his legs and forearms due to the heavy
handed way the defendant handled the baby
...
The trial judge directed the jury that they
were to convict if the defendant should have foreseen that his handling of the child would result in
some harm albeit of a minor nature
...

Held: The appeal was allowed
...
20 were substituted with convictions for ABH
under s
...

The maximum penalty for assault is sixth months’ imprisonment
...
39)

Battery
...

Definition of battery is laid out in R v Ireland
...
)
Lord Steyn defined battery as: “unlawful application of force by the defendant upon the victim
...
Simester and R
...

1
...
He placed it into a hot air
hand drier in the boys' toilets
...
The
nozzle was pointing upwards and acid was squirted into his face causing permanent scars
...
47 OAPA 1867
...
The defendant was also convicted
under Caldwell recklessness (this aspect of the case has since been overruled
...
B
...
The defendant accidentally drove
onto the policeman's foot
...
The defendant refused to
move
...
When he formed the mens
rea, he lacked the actus reus as he did nothing
...


2
...
This
includes; Reasonable punishment/chastisement of a child (S
...

On the issue of consent specifically related to battery, see Goff LJ’s comments in the following
case:

Collins v Wilcock [1984] 3 All ER 374
A police woman took hold of a woman's arm to stop her walking off when she was
questioning her
...

Held: The police woman's actions amounted to a battery
...
Goff LJ stated that implied consent
existed where there was jostling in crowded places, handshakes, back slapping, tapping to
gain attention provided no more force was used than is reasonably necessary in the
circumstances
...


Donnelly v Jackman [1970] 1 All E
...
987
A policeman tapped the defendant on the shoulder in order to gain his attention
...
He was charged with assaulting an officer in the
course of his duty
...

Held: The policeman's actions did not amount to a battery
...
Physical Force
Physical force is perhaps a misleading phrase in that it suggests a high level of force, however
any touching will suffice
...
It need not
necessarily be hostile, rude, or aggressive
...
Simester and R
...
D must
intend to inflict unlawful violence or do recklessly
...
Intention to apply unlawful physical force
R v Venna [1975] 3 WLR 737
The defendant was causing a disturbance with three others in the early hours of the morning
by singing shouting and bashing dust bin lids
...
An officer called Leach
went to investigate
...
The four
continued in defiance
...
The other three tried to get the other from the grasp of
the policeman
...
The defendant had fought so violently that it took four officers to get him into the
police vehicle
...
The defended contended that
he had not heard that he had been arrested and was hit on the chin and knocked to the
ground and he kicked out in order to get to his feet
...

The defendant appealed contending that this was a misdirection in that it states that the
mental element of recklessness is enough, when coupled with the actus reus of physical
contact, to constitute the battery involved in assault occasioning actual bodily harm
...
Counsel relied on the case of R v Lamb [1967] 2 Q
...
981 and
argued that an assault is not established by proof of a deliberate act which gives rise to
consequences which are not intended
...
There was no misdirection
...
Being reckless as to whether such force is applied
...
20 in relation to injuries
on his baby son
...
The defendant was not used
to handling young babies and did not know that his actions would result in injuries
...
The defendant
appealed contending that it was necessary to establish that the defendant appreciated the
risk and it was not sufficient that he should have foreseen a risk of injury
...
His convictions under s
...
47
...
(Criminal Justice Act 1988, s
...
)
Assault occasioning actual bodily harm Section 47
The offence of actual bodily harm is set out in S
...

Actus Reus
A
...
Sullivan states ‘the term assault is used here as an umbrella term to cover the
discrete offence of assault in the pure sense of that term, and the offence of battery
...

1
...

Donovan [1934] 2 KB 498
The defendant was convicted of indecent assault and common assault after caning a 17 year
old female complainant for the purposes of sexual gratification
...
47
...
The judge had directed the jury that the issue was consent or no
consent, without giving any guidance on the burden of proof
...
The court rejected the argument that it was
unnecessary for the prosecution to prove absence of consent and that therefore the failure to
give the direction was immaterial: ‘Always supposing, therefore, that the blows which he
struck were likely or intended to do bodily harm, we are of opinion that he was doing an
unlawful act, no evidence having been given of facts which would bring the case within any of
the exceptions to the general rule
...
For this purpose we think that
‘bodily harm’ has its ordinary meaning and includes any hurt or injury calculated to interfere

with the health or comfort of the prosecutor
...
’
R (on the application of T) v DPP [2003] EWHC 266
DPP v Smith [2006] 1 WLR 1571
The defendant's ex-girlfriend went round to his house whilst he was asleep in bed
...
He pushed her down on to the bed, sat on top of her
and cut off her hair which was in a pony tail
...
She sustained no bruises, scratches or cuts
...
The defendant was charged with assault occasioning actual bodily harm
under s
...
The Magistrates accepted that a
common assault had been committed, however the defendant had not been charged with
assault
...
47, as cutting of hair itself did not constitute ABH
...

Held: The cutting of hair did amount to actual bodily harm
...
‘Bodily harm’ can include psychological harm
...
He was convicted under s
...
He appealed
contending that silence cannot amount to an assault and that psychiatric injury is not bodily
harm
...
Silence can amount to an assault and psychiatric injury can
amount to bodily harm
...
The judge at the Old
Bailey dismissed the charges and ruled that psychological harm cannot, as the law currently
stands, amount to bodily harm
...

Held: The Court of Appeal held the appeal but held that if D harms a partner and causes them
physical and mental harm and subsequently drives them to suicide, then D can be guilty of
manslaughter
...
There is no need to
prove any mental element with respect to occasioning bodily harm
...
She
had not met the man before and it was 3
...
The defendant drove in a different direction to
where he told her he was taking her and then stopped in a remote place and started making sexual
advances towards her
...
He then started making
further advances whilst driving and she jumped out of the moving car to escape him
...
The defendant was convicted of actual bodily harm under s
...
He appealed contending that he did not intend or
foresee a risk of her suffering actual bodily harm from his actions and that he did not foresee the
possibility of her jumping out of the car and therefore her actions amounted to a novus actus

interveniens
...
47
...

Where the victim's actions were a natural result of the defendant's actions it matters not whether the
defendant could foresee the result
...

R v Parmenter [1991] 94 Cr App R 193
See case summary from above
...

Maliciously wounding or inflicting GBH
The offences of wounding and GBH are found under two separate sections of the Offences Against
the Person Act 1861
...

Wounding and GBH under s
...

Maliciously wounding or inflicting GBH Section 20
...
”
Actus Reus
A
...
Sullivan, J
...
Virgo defined: ‘the harm element of the offence is present if
D inflicts a wound or grievous bodily harm on V
...

1
...
This covers those who are acting in selfdefence or prevention of crime and in limited circumstances where the victim as consented
...
(S
...

R v Hopley [1860]
The defendant was a school master
...

The father replied agreeing to the course of action
...
The boy died
...


2
...
He wrote to a pupil's father to obtain consent to chastise
the pupil stating that the pupil, a 13 year old boy, was obstinate and if he were his child he

would chastise him and if necessary continue at intervals even if the boy held out for hours
...
The defendant subsequently beat the boy
repeatedly for two and a half hours with a thick stick
...

Held: The defendant was liable for manslaughter and sentenced to four years imprisonment
...
Grievous Bodily Harm
Grievous bodily harm means really serious harm:
DPP v Smith [1961] AC 290
policeman tried to stop the defendant from driving off with stolen goods by jumping on to the
bonnet of the car
...
The defendant argued he did not intend to harm the policeman
...
The defendant was
convicted of murder
...
he
must as a reasonable man have contemplated that grievous bodily harm was likely to result to
that officer
...
On the other hand, if you are not satisfied that he
intended to inflict grievous bodily harm upon the officer - in other words, if you think he
could not as a reasonable man have contemplated that grievous bodily harm would result to
the officer in consequence of his actions - well, then, the verdict would be guilty of
manslaughter
...
The Court of Appeal
quashed his conviction for murder and substituted a manslaughter conviction applying a
subjective test
...

If the victim particularly vulnerable, the jury is entitled to take this into account when
assessing if the injury is really serious:
R v Bollom [2004] 22 Cr App R 6
The defendant was convicted of GBH under s
...
The injuries consisted of various bruises and abrasions
...

Held: The jury are entitled to take into account the particular characteristics of the victim
...
The expert medical witness suggested some of the injuries were older than
others
...

The question of what amounts to really serious harm is to be objectively assessed:
R v Brown and Stratton [1997] EWCA Crim 2255
The two defendants were cousins
...
At the time of the attack the defendants had both been drinking and
went round to the victim's house with the intention of beating her up because of the

embarrassment she had caused her son in turning up to his place of work wearing a dress
...
The defendants offered a plea for ABH but denied causing GBH
...
18
...

Held: There was a mis-direction in relation to the meaning of GBH but that did not render
their convictions unsafe
...
18 were quashed and substituted
with convictions under s
...

It has also been argued that GBH includes psychiatric injury:
R v Burstow [1997] 3 WLR 534
The defendant had a brief relationship with a woman She ended the relationship and he
could not accept her decision and embarked on a campaign of harassment against her over a
period of 8 months
...
As
a result she suffered a severe depressive illness
...
whether psychiatric injury could amount to bodily harm under the OAPA 1861
2
...
20 where there was no direct or indirect
application of physical force on a person
...
Psychiatric injury could amount to bodily harm
...

2
...
20 simply means cause
...

4
...
20 has given rise to some difficulty
...
Several
people were severely injured
...
20 OAPA 1861
...

Held: Indirect application of force was sufficient for a conviction under s
...

Originally the courts interpreted to mean that there must be proof of an assault or battery:
R v Clarence [1889] 2 QB 23
The defendant had sexual intercourse with his wife knowing that he was infected with
gonorrhoea
...
47 and s
...

Held: Conviction was quashed
...
The court held that these were necessary
ingredients of both ABH and GBH
...
It was irrelevant that the wife was unaware of the infection or whether she would
have removed consent had she known since at the time a wife was deemed to consent to
sexual intercourse with her husband
...

Lord Roskill stated: "grievous bodily harm may be inflicted … either where the accused has
directly and violently "inflicted" it by assaulting the victim, or where the accused has
"inflicted" it by doing something, intentionally, which, although it is not itself a direct
application of force to the body of the victim, does directly result in force being applied
violently to the body of the victim, so that he suffers grievous bodily harm
...
There is no
requirement of assault or battery or direct or indirect application of force:
R v Burstow [1997] 3 WLR 534
See case summary from above
...
20
The means rea for the section 20 offence is intention or recklessness
...
The defendant must have the intention or be reckless as to the causing of some harm
...

R v Savage [1991] 94 Cr App R 193
The defendant threw a pint of beer over the victim in a pub
...
The victim was her husband's ex girlfriend and there
had been bad feeling between the two
...
The trial judge
directed the jury that malicious meant that an unlawful act was deliberate and aimed against
the victim and resulted in the wound
...
The
Court of Appeal held this was a mis-direction as it did not correctly state that malicious
included recklessness and this is decided subjectively
...
47 OAPA 1861 and certified a point of law to the House of Lords as
to whether it was necessary under s
...

Held: It was not necessary to demonstrate the defendant had the mens rea in relation to level
of harm inflicted
...

2
...
20 in relation to injuries
on his baby son
...
The defendant was not used
to handling young babies and did not know that his actions would result in injuries
...
The defendant
appealed contending that it was necessary to establish that the defendant appreciated the
risk and it was not sufficient that he should have foreseen a risk of injury
...
His convictions under s
...
47
...


Section 18 Offences Against the Person Act 1861
Section 18 provides; “Whosever shall unlawfully and maliciously by any means whatsoever wound or
cause any grievous bodily harm to any person, with intent, to do some grievous bodily harm to any
person, or with intent to resist or prevent the lawful apprehension, or detainer of any person, shall be
found guilty of felony
...
To unlawfully wound
or cause GBH on any person
...
20 and s
...

The one difference is that the offence under s
...
18
can be committed on any person and thus would cover those who intentionally wound or inflict GBH
on themselves
...


Section 18 of the OAPA 1861 provides: “Whosoever shall unlawfully and maliciously by any means
whatsoever wound or cause grievous bodily harm to a person…with intent…to do some grievous
bodily harm to any person, or with intent to resist or prevent the lawful apprehension or detainer of
any person, shall be guilty of an offence
...
Sullivan, J
...
Virgo states; “The core of the offence is intention… The most
common variants of the offence are… Where D wounds V with intent to cause GBH or where D causes
V GBH with intent to cause GBH
...

Consent
“The Application of force to another may be lawful in certain circumstances where it is consented to
by the recipient
...
The injuries were inflicted during consensual homosexual sadomasochist
activities
...
The Court of Appeal upheld the convictions and certified the
following point of law of general public importance: "Where A wounds or assaults B occasioning him
actual bodily harm in the course of a sado-masochistic encounter, does the prosecution have to prove
lack of consent on the part of B before they can establish A's guilt under section 20 and section 47 of
the 1861, Offences Against the Person Act?"
Held: 3:2: The defence of consent cannot be relied on in offences under s
...
20 OAPA 1861
where the injuries resulted from sadomasochist activities
...
Pleasure
derived from the infliction of pain is an evil thing
...
I would answer the certified
question in the negative and dismiss the appeals of the appellants against conviction
...
Sadomasochistic homosexual activity cannot be regarded as conducive to the enhancement or
enjoyment of family life or conducive to the welfare of society
...
"
Lord Mustill dissenting: "The issue before the House is not whether the appellants' conduct is morally
right, but whether it is properly charged under the Act of 1861
...
Nor
do I pronounce in favour of a libertarian doctrine specifically related to sexual matters
...
What I do say is that these are questions of
private morality; that the standards by which they fall to be judged are not those of the criminal law;
and that if these standards are to be upheld the individual must enforce them upon himself according
to his own moral standards, or have them enforced against him by moral pressures exerted by
whatever religious or other community to whose ethical ideals he responds
...
Thus, whilst acknowledging that very many people, if
asked whether the appellants' conduct was wrong, would reply "Yes, repulsively wrong", I would at
the same time assert that this does not in itself mean that the prosecution of the appellants under
sections 20 and 47 of the Offences against the Person Act 1861 is well founded
...
She had asked him to do so
...
The doctor reported
the matter to the police and the husband was charged with ABH under s
...

Held: The wife’s consent was valid
...
The court further held that
consensual activity between husband and wife in the privacy of the matrimonial home was not a
matter for the courts
...
Knowing of this he had unprotected sexual
intercourse with two women
...
With the second he had used protection initially
but later in the relationship had unprotected sex
...
The women disputed
this
...

Held: The case was remitted for retrial
...
Those who, knowing that they are suffering
HIV or some other serious sexual disease, recklessly transmit it through consensual sexual
intercourse, and inflict grievous bodily harm on a person from whom the risk is concealed and who is

not consenting to it will be liable under s
...
Moreover, to the extent that Clarence suggested that
consensual sexual intercourse of itself was to be regarded as consent to the risk of consequent
disease, again, it is no longer authoritative
...
20
...

Lawful chastisement
Does the law allow parents or other persons to use force to discipline their children or charges?
A v UK [1998] Crim LR 892
The applicant was examined by a consultant paediatrician, who found the following marks on his
body:
(1) a fresh red linear bruise on the back of the right thigh, consistent with a blow from a garden cane,
probably within the preceding twenty-four hours;
(2) a double linear bruise on the back of the left calf, consistent with two separate blows given some
time before the first injury;
(3) two lines on the back of the left thigh, probably caused by two blows inflicted one or two days
previously;
(4) three linear bruises on the right bottom, consistent with three blows, possibly given at different
times and up to one week old;
(5) a fading linear bruise, probably several days old
...
The applicant's step-father was charged under
s
...
He raised the
defence of lawful chastisement and the jury acquitted him
...
"
Held: The level of force used was sufficient to be within the scope of Art 3
...

R (on the application of Williamson and others) v S of S for Education and Employment [2005] UKHL
15
The heads of a number of Christian private schools - Philip Williamson, Michael Bates, Pauline Bolton,
Grahame Davies, David Greenwood, Marianne Hosey, Paul Hubbard, Philip Moon, Roy Sammons,
Anthony Seaton, Matthew Walker and Colin Wilcock - who wished to use corporal punishment as a
disciplinary device in their schools
...
They claimed that the prohibition of corporal punishment in the
Education Act 1996 s
...
They failed
in their claim in the Administrative Court (Elias J), in the Court of Appeal
...
They were represented by Paul Diamond and James Dingemans QC
...
Any interference was deemed justified,
"necessary in a democratic society
...
”
Critical Analysis
“Judges and commentators have expressed a great deal of dissatisfaction with the law relating to nonfatal offences
...
Simester, R
...
Spencer and G
...


“The cases reek of legal paternalism and legal moralism but little reference is made to ideas of
personal autonomy or sovereignty
...
Allen
Should parents have the right to smack/chastise their children?
Reform
‘This project will aim to restructure the law on offences against the person, probably by creating a
structured hierarchy of offences, as well as modernising and simplifying the language by which these
offences are defined
...
’
Non-Consensual Sexual Offences
The Sexual Offences Act 2003 contains four major provisions that penalize D in respect of nonconsensual acts
...

Rape
The SOA 2003 extended the scope of the offence of rape, placed the definition of consent on a
statutory footing, introduced certain evidential presumptions, and altered the fault element of the
offence of rape
...

Actus Reus
The actus reus of rape is committed where a man has sexual intercourse with a man or a woman
without that person’s consent
...

Mens Rea
Section 1 of the SOA 2003 requires intentional penetration
...

According to SOA 2003, section 1(2), ‘whether a belief is reasonable is to be determined having
regard to all the circumstances, including any steps A has taken to ascertain whether B consents
...
1(4))
...

Actus Reus
The actus reus of assault by penetration is committed where a man or a woman sexually penetrates
the vagina or anus of another person without that person’s consent
...

‘Sexual’ is define in section 78
...

According to section 2(2), ‘whether a belief in consent, is reasonable is to be determined having
regard to all the circumstances, including any steps A has taken to ascertain whether B consents
...

2(4))
...

Actus Reus
The actus reus of sexual assault is committed where a man or a woman sexually touches another
person without that person’s consent
...

Section 78 of the SOA 2003 provides the definition of ‘sexual
...
In such
a case, a judge was to identify two distinct questions for the jury (both of which had to be answered
in the affirmative in order to find the defendant guilty), namely: (i)whether they, as 12 reasonable
people, considered that the touching, in the particular circumstances before them, because of its
nature, might be sexual; and (ii)whether they, as 12 reasonable people, considered that the touching,
in view of its circumstances, or the purpose of any person in relation to it, or both, was in fact sexual
...

Mens Rea
Section 3 of the SOA 2003 requires intentional touching
...
The police took him to hospital
...
The appellant then took out his penis and started
rubbing it against the officer's thigh
...
3 of the Sexual
Offences Act 2003
...
The judge ruled that the offence was one of basic intent and
such his intoxication could not be relied on in his defence
...

Held: Appeal dismissed
...
Parliament in passing the Sexual
Offences Act 2003 cannot be taken to have changed the previous law which denied a defendant from
relying on voluntary intoxication as a defence
...
’
The maximum sentence for sexual assault is 10 year’s imprisonment, according to the SOA 2003,
section 3(4)
...

Section 4 of the SOA 2003 provides a person (A) commits an offence if;
a) he intentionally causes another person (B) to engage in an activity,
b) the activity is sexual,
c) B does not consent to engaging in the activity, and
d) A does not reasonably believe that B consents
...

Section 74 of the SOA 2003 provides the definition of consent
...
’
Mens Rea
Section 4 of the SOA 2003 requires an intention to cause another person to engage in an activity
...
’
According to section 74 of the SOA 2003, ‘a person consents if he agrees by choice, and has the
freedom and capacity to make that choice
...
The
appellant had a relationship with a student which began in 2002 and continued until 2006
...
Unknown
to her, the messages were in fact sent by her boyfriend, the appellant
...
Eventually C became anxious about the
messages and wished to go to the police
...
He then sent her text messages from a fictitious policeman asking for her to send
her statement via text
...
The appellant sent a message to C
from the fictitious policeman offering a protection service whereby her home would be kept under
surveillance for a fee of £1,000 pa
...

Held: His conviction was upheld
...
X claimed to be a boy
...
X, dressed as a boy, visited Y on four occasions when X was aged 17
and Y 16
...
Y
subsequently discovered that X was a girl
...
Following a conference with counsel, she
pleaded guilty
...
A pre-sentence report described a history of selfharm and confusion surrounding her gender identity and sexuality
...
He took a starting point of nine years’ detention, reduced that by a
third to reflect her guilty plea, and then by half to reach the custodial sentence
...
’
R v Taran (Farid) [2006] EWCA Crim 1498
Under the the absence of reasonable belief in consent was part of the definition of rape; however, it
did not follow that a judge was obliged to give a direction concerning reasonable belief in every case,
but rather, a direction as to the absence of reasonable belief in consent clearly fell to be given where
there was material upon which the jury might conclude that the complainant had not, in fact,
consented, but that the defendant had thought she had
...

The conclusive presumptions
The conclusive presumptions apply (a), where D intentionally deceived the complainant as to the
nature or purpose of the relevant act; and (b), where D intentionally induced the complainant to
consent to the relevant act by impersonating a person known personally to the complainant
...

The rebuttable presumptions
Section 75(1) provides that it will be rebuttably presumed that both consent and reasonable belief in
consent were lacking if the prosecution can prove that the defendant did the relevant act in any of
the circumstances specified by section 75(2) and that the defendant knew of these circumstances
...
The complainant was also present at
the party
...
The complainant consumed
alcohol and possibly drugs at the party and she was considered to be drunk
...
According to the defendant, the complainant made a sexual
advance towards him whilst at the table by touching him between the legs and attempting to kiss
him
...
Once at the flat, the complainant fell asleep
in the spare room and the defendant and his girlfriend went to sleep in their room
...
He left the room, but returned a
second time
...
He
touched the complainant with his erect penis from behind
...
The complainant woke up and told the defendant to get off and to
get out, which he did
...
He denied sexually assaulting the complainant
...
The defendant
accepted that he had touched the complainant sexually
...
The
Judge held that sufficient evidence had not been adduced to raise the issue as to reasonable belief in
consent, pursuant to s
...
Following that ruling, the defendant applied to be rearraigned
...
The defendant appealed against conviction
...
75 of the 2003 Act arose,
whether sufficient evidence had been adduced in the instant case for that issue to arise and whether
the Judge should have left that issue to the jury
...
He further
submitted that s
...
Consideration was
also given to s
...

Holding: The appeal would be dismissed
...
D
...
75 of the Act
apply to the case, then considerable difficulties arise, because it is quite clear that none of these
presumptions may be applied to attempts
...
Criminal lawyers disagree on what should or
should not be regarded as a defence
...

The minimum age of criminal responsibility in England is 10, according to the Children and Young
Persons Act 1922, s
...
The law used to provide a rebuttable presumption that children between the
ages of 10 and 14 were incapable of committing a crime
...
’
However, this presumption was abolished by section 34 of the Crime and Disorder Act 1988
...
This defence is a general defence which is available to all crimes
...
2 of the Trial of Lunatics Act 1883
...

1
...
Confirmation from two doctors or the
offender’s state of mind is required
...
Unfitness to plead
The question of unfitness to plead may be raised by the defence, prosecution or the judge
...
4 Criminal
Procedure (Insanity) Act 1964
...

R v Pritchard [1836] 7 C&P 303
The defendant was deaf and mute
...
" The jury were directed that there were to find him unfit to plead if in
their opinion there was no certain mode of communicating the details of the trial to the
prisoner, so that he could clearly understand them, and be able properly to make his defence
to the charge
...
4A Criminal Procedure
(Insanity) Act 1964
...
If, however the jury are of the opinion that the actus reus
was committed by the defendant, the judge may make an order under s
...
The trial under this act cannot result in a criminal conviction
...
Insanity at the time of the offence
The question of insanity at the time of the offence is determined by application of the
M’Naughten Rules
...
M'Naughten was suffering from
insane delusions at the time of the killing
...

Lord Tindal CJ: "In all cases of this kind the jurors ought to be told that every man is presumed
to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until
the contrary be proved to their satisfaction: and that to establish a defence on the ground of
insanity, it must be clearly proved that at the time of committing the act the party accused
was labouring under such a defect of reason, from disease of the mind, as not to know the
nature and quality of the act he was doing, or as not to know that what he was doing was
wrong
...

ii) To establish a defence of insanity it must be clearly proved that at the time of committing
of the act, the accused was labouring under such a defect of reason, from disease of the
mind, as (a) not to know the nature and quality of the act he was doing, or (b) if he did know
it, that he did not know he what he was doing was wrong
...
Mere
forgetfulness or absent mindedness is not sufficient:
R v Clarke [1972] 1 All ER 219
Mrs Clarke, a 58 year old woman, absent-mindedly placed a jar of mincemeat, a jar of coffee
and some butter into her bag whilst shopping in a supermarket
...
Medical evidence was given at her trial which stated that she
was suffering from depression and was diabetic
...
At this point Mrs Clarke changed her plea to guilty and then appealed
against the judge's finding of insanity
...

ii) The defect of reason must be caused by a disease of the mind
Insanity requires the defect of reason to be caused by a disease of the mind
...
Disease of the mind has been held to include:
Arteriosclerosis: R v Kemp [1957] 1 QB 399
A devoted husband of previous good character made an entirely motiveless and irrational
violent attack upon his wife with a hammer
...
He suffered from hardening of the arteries which lead to a congestion of blood in the
brain
...
He sought to raise the defence
of automatism
...

Epilepsy: R v Sullivan [1984] AC 156
The appellant kicked a man
...
The trial
judge ruled that on the evidence the appropriate defence was insanity not automatism
...

Held: The appeal was dismissed
...

Sleepwalking: R v Burgess [1991] 2 WLR 1206
The appellant smashed a bottle over a woman's head and then struck her with a video
recorder whilst she was asleep
...
This claim was supported by medical evidence
...
The jury returned a verdict of not guilty by reason of insanity
...

Held: The appeal was dismissed
...

Hyperglycaemia arising from diabetes: R v Hennessy [1989] 1 WLR 287
The appellant had stolen a car and was stopped by the police whilst driving it
...
He
was a diabetic and was required to take two insulin doses per day
...
The appellant had no
recollection of taking the car
...
The appellant changed his
plea to guilty and then appealed against his conviction
...
The trial judge was right to rule that insanity was the appropriate

defence
...

Where the defect of reason is caused by an outside source, this will not lead to a finding of
insanity, but may give rise to the defence of non-insane automatism
...
However, if the diabetic takes too much insulin
resulting in a hypoglycaemia state, this will be classed as an outside source resulting in finding
a non-insane automatism
...
He attacked one of his patients whilst on duty
...
The
appellant was charged with assault occasioning ABH under s
...
The appellant
sought to raise the defence of automatism as at the time of the attack he was hypoglycaemic,
in that he had taken too much insulin and eaten very little on the day in question
...
The trial judge ruled that this gave rise not to
automatism but insanity
...

Held: The appeal was allowed and the conviction was quashed
...

"In this case 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
...
It follows in our judgment that
Quick was entitled to have his defence of automatism left to the jury and that Mr
...
Had the
defence of automatism been left to the jury, a number of questions of fact would have had to
be answered
...
We cannot say, however, with the requisite degree
of confidence, that the jury would have convicted him
...
"
External factors such as drink or drugs also may lead to a finding of non-insane automatism:
R v Burns 58 Crim App R 364
The appellant was an alcoholic and suffered periods of amnesia caused by brain damage
...
On the day of the
offence the appellant had taken alcohol and a prescribed drug, Mandrax
...
The appellant appealed
Held: The trial Judge was in error because he did not leave the issue of automatism to the jury

as a separate issue from insanity
...

R v Roach [2001] EWCA Crim 2698
The appellant was working as a caterer at the Royal Tournament
...
The appellant contended
that he had no recollection of the stabbing but could remember the events leading up to it
...
At the time of the stabbing he had also taken alcohol and prescribed drugs
...
The jury rejected the defence of insanity and convicted him of wounding with intent
under s
...
The appellant appealed as the issue of non-insane automatism was
not left open for the jury
...
The issue of non-insane
automatism should have been left for the jury to decide
...
On the other
hand, as the defence urged upon the judge, the opinion of the doctors plainly accorded a
causative role to the contributory factors of alcohol and prescribed medication in
combination with the personality disorder and fatigue
...
"
iii) The defect of reason must be such that the defendant did not know what he was doing or,
if he did know, he did not know the act was wrong
...
He sought to rely on the defence of insanity,
however, at the time of the killing he knew that it was unlawful to kill
...

R v Windle [1952] 2 QB 826
The appellant killed his wife
...

Medical evidence supported the view that he was suffering from a mental condition at the
time of the crime
...
The
trial judge refused to allow the defence of insanity to be put before the jury as he had
demonstrated that he realised that what he was doing was unlawful
...
The trial judge was correct to refuse the defence of insanity
...
It did not matter that he
thought his actions were not morally wrong
...
A woman called him a 'white nigger'
...
He took exception to the comments
and made violent threats to her
...
A fight developed between the two men and the appellant stabbed the
man resulting in his death
...
He also denied losing any self-control
...
The jury rejected self-defence and convicted him of murder
...

Held: Conviction for murder quashed and substituted for manslaughter
...

To conclude the defence of insanity, where D is acquitted because of a successful insanity plea, the
result is the ‘special verdict’ of not guilty by reasons of insanity
...
5 of the Criminal Procedure
(Insanity) Act 1964, as amended by s
...

Non-Insane Automatism
Difference between defence of insanity (and insane automatism) and automatism, is insanity is
internal, whereas automatism is external
...
It differs from the defence of insane automatism in that there is
no power to detain in a mental hospital neither may other order be made against the defendant
...
A finding on non-insane automatism may also exist where
the defendant is not conscious of their actions due to an external factors as a result of medication
...
Allen, Textbook on criminal law: ‘where the actus reus of an offence requires conduct on the part
of the accused, whether an act or omission, liability will only accrue where the conduct is willed
...
In such a condition the movements of a person’s body or limbs are involuntary
...
He suffered a
sneezing fit, losing control of his vehicle he knocked into the car in front
...
The Magistrates allowed the defence of
automatism
...

Hypoglycaemia (experienced by diabetics who take too much insulin or not enough sugar):
R v Quick [1973] 3 WLR 26
The appellant was a charge nurse in a hospital
...
The
patient was a paraplegic and suffered a fractured nose, black eyes and bruising
...
47 OAPA 1861
...
In addition he had consumed alcohol before

the attack
...
The defendant then
changed his plea to guilty and appealed
...
His hypoglycaemia was caused not by
his diabetes but by the external factor of insulin
...
He then dumped her body
on the side of the road and drove home
...
The appellant suffered from psychomotor epilepsy
and stated that at the time of the killing a terrible feeling came over him and he was not conscious of
his actions
...
The jury rejected the insanity
defence and convicted him of murder
...

Held: Appeal dismissed
...

R v Hennessy [1989] 1 WLR 287 Court of Appeal
The appellant had stolen a car and was stopped by the police whilst driving it
...
He was a diabetic
and was required to take two insulin doses per day
...
The appellant had no recollection of taking the car
...
The appellant changed his plea to guilty and then appealed against his
conviction
...
The trial judge was right to rule that insanity was the appropriate
defence
...

The requirements of the defence of non-insane automatism:
1
...

The involuntary action must not arise from an inside source otherwise a finding of insane
automatism will arise
...
He was charged with causing grievous bodily
harm
...
This caused a temporary lack of consciousness, so that he was not conscious that he
picked up the hammer or that he was striking his wife with it
...

Held: The hardening of the arteries was a "disease of the mind" within the M'Naghten Rules
and therefore he could not rely on the defence of automatism
...

R v Hennessy [1989] 1 WLR 287
See above for case summary
...
Hyperglycaemia is too much sugar with no insulin to counteract it,
inside source of the condition of diabetes itself, which makes it insane
...
The action must be completely involuntary
...
If the defendant retains control over their actions the defence will fail as they are not
acting as an automaton:
Broome v Perkins [1987] Crim LR 271
The appellant was a diabetic
...
His defence of noninsane automatism failed because of evidence that he had exercised conscious control over
his car by veering away from other vehicles so as to avoid a collision and braking
...

3
...

If the defendant knowingly puts himself in a position of automatism, then the defence of noninsane automatism will fail
...

R v Bailey [1983] Crim LR 353
The appellant went to the house of his ex-lover's new partner, Mr Harrison
...
The appellant was diabetic and had taken insulin but had not eaten
...
Ten minutes later,
the appellant got up to leave
...
Mr Harrison bent over to pick
up the glove and the appellant struck him with an iron bar leaving a wound which required 10
stitches
...
18 OAPA 1861
...
The trial judge ruled that self-induced automatism could
not be relied on
...

Held: The trial judge had misdirected the jury
...

Critical analysis of non-insane automatism:
1
...
(C
...
Quinn, Criminal Law 2010)
2
...

Mistake
Where the defendant acts under a mistaken belief of the circumstances they may be afforded the
defence of mistake
...
The defence of mistake was first recognised in R v Tolson, but has developed

since then
...
)
Initially a defence would be allowed if the mistake was both honest and reasonably held:
R v Tolson [1889] 23 QBD 168
The appellant married in Sept 1880
...
She was told that he had
been on a ship that was lost at sea
...
11 months later her husband turned up
...

Held: She was afforded the defence of mistake as it was reasonable in the circumstances to believe
that her husband was dead
...
(Ignorantia juris non excusat
...
He looked at the test result and saw an air bubble which
pushed the test over the limit
...
He was convicted of assaulting a police officer with intent to resist arrest under s
...
He appealed contending that he had a genuine belief that the
arrest was unlawful
...
With consent of the land lord, he purchased some
electrical wiring, roofing equipment, wall panels and flooring and installed them into the
conservatory
...
as they form
part of the flat
...
He was convicted of criminal damage and appealed contending he lacked
the mens rea of the offence as he believed that since he had paid for the panels he had a right to
damage them
...
He lacked the mens rea of criminal damage as he believed the
property he damaged belonged to him
...

A mistake of fact will suffice provided the mistake was such as to prevent the defendant forming the
mens rea of the offence
...
There was no
requirement that it was a reasonable mistake for the defendant to make:
DPP v Morgan [1976] A
...
182
The three appellants were convicted of rape following a violent attack
...
According to the appellants, he had told them that his
wife would be consenting, although she would protest in order to enhance her sexual arousal
...
The trial judge had directed the jury that the
defendants' belief in consent had to be reasonably held
...
They appealed
contending there was no requirement that the belief need be reasonably held
...
There was no requirement that the belief was
reasonable
...

The defence of mistake in relation to public/private defence:
The defence of mistake may be raised in conjunction with self-defence and prevention of crime
...
He rushed to the aid of the youth and hit the attacker
...
The appellant was convicted of ABH under s
...
He appealed contending that the trial judge gave a misdirection to the jury in
requiring the mistake to be a reasonably held mistake
...

Beckford [1987] 3 WLR 611 – D’s mistake may mean that he or she has a valid defence, such as selfdefence:
The appellant was a police officer
...
According to the appellant a report had been
received from Heather Barnes that her brother Chester Barnes was terrorising her mother with a gun
...

The appellant said that on arriving at the house, he saw a man run from the back door with an object
which appeared to be a firearm
...
In fact no gun was ever
found
...
" The jury convicted him of
murder (which carries the death penalty in Jamaica)
...

Held: The appeal was allowed and the conviction was quashed
...

Implications where the mistake is induced by intoxication
Where the mistake is induced by voluntary intoxication, and the crime is one of basic intent, the
defendant is not allowed the defence of mistake:
R v Fotheringham [1989] 88 Cr App R 206
The appellant had been out drinking
...
He started to have sexual intercourse with her in the mistaken belief
that it was his wife
...
Rape is a crime of basic intent and therefore his drunken
mistake could not be relied on in his defence
...
He had spent the day drinking large quantities of alcohol with two
friends
...
The appellant claimed he
was woken by one of the friends, McCloskey, hitting him on the head
...
He said he only recalled hitting
him a few times and a fight developed during which McCloskey had the better of him throughout
...
In the morning he found
McCloskey dead
...
He had 20 wounds to his face, in addition to
injuries to the hands and a fractured rib
...

There was a fracture of the spine caused by the head being forced backwards
...
The blows to the body had been delivered by both sharp and blunt objects
...
If he made such a mistake in drink he would nevertheless be
entitled to defend himself even though he mistakenly believed that he was under attack
...
But if in taking defensive measures, then he went
beyond what is reasonable either because of his mind being affected by drink or for any other reason,
then the defence of self-defence would not avail him because, as I told you earlier on, you are entitled
to defend yourself if it is necessary to do so, but the defensive measures that you take must be
reasonable ones and not go beyond what is reasonable
...

(2) By leaving the matter to the Jury as he did, the Judge in effect divorced the reasonableness of the
appellant's reaction from the appellant's state of mind at the time
...

Held: The appeal was dismissed and the appellant's conviction upheld
...
Lord Lane CJ: "There are two competing interests
...

Reason recoils from the conclusion that in such circumstances a defendant is entitled to leave the
Court without a stain on his character
...
Mr Pashley was 49
...
On the day of his death he had
not taken his Lithium and had twice the legal limit of alcohol in his blood
...
He had exhibited a hatred of homosexuals
...
From there they drove together in the
appellant's car to his flat
...
The appellant had no recollection of the actual killing but stated he vaguely
remembered being hit with a stick
...

The defence counsel wished to suggest to the jury that, if the appellant killed Mr Pashley, he might
have acted in self-defence
...
For this defence to succeed, however, the jury would have to
be persuaded that the use made by the appellant of the sledgehammer was or might have been a

reasonable reaction to the suggested assault by Mr Pashley
...
In the absence of the jury he sought a ruling from the judge
that the reasonableness of the appellant's reaction fell to be judged according to the facts as he
believed them to be, even if that belief was mistaken and the mistake was caused by the drink that he
had consumed
...
The jury convicted him of
murder
...

Held: Appeal dismissed
...
The established in R v O Grady that a
defendant's drunken mistake cannot be relied on for the purposes of self-defence affirmed
...
5(2)
Criminal Damage Act, a mistake induced by voluntary intoxication will not be able to use application
of the defence:
Jaggard v Dickinson [1981] 1 QB 527
The appellant had been out drinking for the evening and became stranded with no money or lift
home
...
There was no answer, so believing her
friend would consent in the circumstances, she broke into the house
...

Held: The rule set out in DPP v Majewski that a person can not rely on a mistake induced by voluntary
intoxication where the crime is one of basic intent does not apply where the defendant is relying on
the special defence under s
...


Intoxication
Intoxication is not a defence to a crime as such, but where a person is intoxicated through drink or
drugs and commits a crime, the level of intoxication may be such as to prevent the defendant from
forming the necessary mens rea of the crime
...
For this reason, the law draws a distinction
between voluntary intoxication and involuntary intoxication
...

A
...
Fitzpatrick, Criminal Law 2009; ‘We can say that where the effect of intoxication is
simply to remove the inhibitions, it will be no defence; an intoxicated or drugged intent is still an
intent
...
They employed Penn to gain some damaging
information on Kingston in order to blackmail him
...
Penn invited a 15 year old boy to his room and gave him a soporific drug in his drink
...
Penn then invited Kingston to the room and drugged his drink without his knowledge
...
Penn recorded
the events and took photographs
...
At his trial
the judge directed the jury: "In deciding whether Kingston intended to commit this offence, you must

take into account any findings that you may make that he was affected by drugs
...
C
...
So intention is crucial,
intention at the time; and, of course, members of the jury, you will bear in mind there is a distinction
between intention at the time and a lack of memory as to what happened after the time
...


Involuntary Intoxication
The most obvious example of involuntary intoxication is where a person has had their food or drink
spiked without their knowledge
...
He took the valium tablets as he was feeling stressed as his partner
had asked him to leave their home
...
The trial judge directed the jury that as
the defendant had voluntarily consumed the valium, his intoxication could be no defence to the crime
committed
...

Held: The appeal was allowed
...
This had a much greater effect on him than
anticipated
...
He argued that he had not voluntarily placed himself in that condition as the wine was much
stronger than he realised
...
The crime
of sexual assault is one of basic intent and therefore the appellant was unable to rely on his
intoxicated state to negative the mens rea
...
C
...
144
The appellant killed his wife in a fit of drunkenness
...
His only defence was that he was drunk
...
J
...
If a party be made drunk by stratagem, or the
fraud of another, he is not responsible
...
Only where
the defendant could be shown to lack the mens rea of the offence due to his intoxicated state could
he escape criminal sanction
...
The law will not excuse this behaviour even where the defendant had been
drugged by the fraud of another:
R v Kingston [1994] 3 WLR 519
Kingston had a business dispute with a couple
...
Kingston was homosexual with paedophiliac
predilections
...

The boy remembers nothing from the time of sitting drinking the drink on Penn's bed until waking the
next morning
...

Penn and Kingston then both engaged in gross sexual acts with the unconscious boy
...
Kingston was charged with indecent assault on a youth
...
If you think that
because he was so affected by drugs he did not intend or may not have intended to commit an
indecent assault upon [D
...
], then you must acquit him; but if you are sure that despite the effect of
any drugs that he might have been slipped - and it is for you to find whether he was drugged or not this part of the case is proved, because a drugged intent is still an intent
...
"The jury
convicted him and he appealed to the Court of Appeal where his conviction was quashed
...
The law
draws a distinction between crimes of basic intent and crimes of specific intent
...

DPP v Beard [1920] A
...
479
The appellant whilst intoxicated raped a 13 year old girl and put his hand over her mouth to stop her
from screaming
...

Lord Birkenhead LC: "Under the law of England as it prevailed until early in the 19th century voluntary
drunkenness was never an excuse for criminal misconduct; and indeed the classic authorities broadly
assert that voluntary drunkenness must be considered rather an aggravation than a defence
...

Where a specific intent is an essential element in the offence, evidence of a state of drunkenness
rendering the accused incapable of forming such an intent should be taken into consideration in order
to determine whether he had in fact formed the intent necessary to constitute the particular crime
...
In a charge of murder based upon
intention to kill or to do grievous bodily harm, if the jury are satisfied that the accused was, by reason
of his drunken condition, incapable of forming the intent to kill or to do grievous bodily harm
...
But nevertheless unlawful homicide has been committed by the
accused, and consequently he is guilty of unlawful homicide without malice aforethought, and that is
manslaughter
...
He then went to a pub
and had a drink
...
The landlord went to break up the fight and the
appellant attacked him
...
Another officer

was struck by the appellant when he was being driven to the police station
...
He was charged with four counts of occasioning actual bodily
harm and three counts of assaulting a police constable in the execution of his duty
...
He was found guilty on all counts
and appealed contending that he could not be convicted when he lacked the mens rea of the offences
due to his intoxicated state
...
Conviction upheld
...

The use of the terms basic intent and specific intent has caused confusion as there has been
conflicting dicta as to the meaning of these terms:
MPC v Caldwell [1982] AC 341
The appellant had been working at a hotel and had a grudge against his employer
...
The hotel had 10 guests
sleeping in the hotel at the time
...
The appellant was convicted of aggravated criminal damage under
s
...
The
defendant argued that he had given no thought as to the possible endangerment of life due to his
intoxicated state
...
Reducing oneself by drink or drugs to a condition in which the restraints of reason and
conscience are cast off was held to be a reckless course of conduct and an integral part of the crime
...
Their view was that arson being reckless as to
the endangering of life is an offence of specific, not of basic, intent; because the state of mind went to
an ulterior or purposive element of the offence, rather than to the basic element of causing damage
by fire
...
This was most noticeable
in:
R v Heard [2007] 3 WLR 475
The police were called to the appellant’s house where he was heavily intoxicated and in a depressive
state and had been self-harming
...
He was making a disturbance in the
waiting room so the officers took him outside
...
He was charged with sexual assault contrary to S
...
He did not dispute that the offence occurred but claimed to have no recollection
of the events due to his intoxication
...
He was convicted and appealed on the
grounds that the judge was in error in ruling that sexual assault was a crime of basic intent since it
requires an intention to touch
...
The appellant's conviction was upheld
...

The confusion surrounding these terms has attracted criticism from the Law Commission who have
recommended the terms should be discarded and replaced with an integral fault element
...
Elliott and F
...
’
Crimes of specific intent have sometimes been stated to include crimes where the offence can only be
committed intentionally i
...
where recklessness will not suffice, e
...
murder section 18 wounding and
GBH
...
e
...

Crimes which have been categorised as being ‘specific intent’ crimes include:
1
...
He was hallucinating and believed he was being attacked
by snakes and descending to the centre of the earth
...

Held: His intoxication could be used to demonstrate that he lacked the mens rea for murder
as murder is a crime of specific intent
...
He appealed against his conviction on
the ground that the judge failed to mention the effect of intoxication on self-defence
...
The appeal was, however, allowed and the conviction for murder
replaced by a conviction for manslaughter on the ground that the judge failed to direct the
jury that self-induced drunkenness could have the effect of preventing the defendant from
forming the specific intent that is an element of the crime of murder
...
S
...
They attacked Stratton's father, who had been undergoing
gender reassignment
...
In
the attack she sustained a broken nose, she lost three teeth, swelling to her face, lacerations
to her eye and concussion
...

The trial judge in his direction to the jury stated: "Another way of looking at it is how would
you describe these injuries if you were the victim? Would you call them really serious, or
would you say that they were not really serious?" The jury convicted them of GBH under
s
...
The defendants appealed
...
However, their convictions under s
...
20 due to a mis-direction in relation to the affect of their
intoxication
...
"

Where crime is categorised as being one of specific intent, the defendant is allowed to rely on their
intoxication to demonstrate that they lacked the mens rea of the offence
...

Held: The relevant question was not whether the appellants were capable of forming the mens rea it
was whether they had in fact formed the mens rea - a drunken intent is still an intent
...

"
...
A drunken intent is
nevertheless an intent
...
"

Crimes of basic intent:
Crimes which have been categorised as crimes of basic intent include:
1
...
20 GBH
DPP v Majewski [1977] AC 443
See above for case summary
...
Sexual Assault
R v Heard [2007] 3 WLR 475
See above for case summary
...
Rape
R v Woods [1982] 74 Cr App R 312
The appellant committed rape whilst intoxicated
...

Held: The crime of rape is one of basic intent and therefore defence of intoxication was not
open to the appellant
...
We are satisfied that Parliament had no such
intention
...


Intoxication and Dutch Courage
Where a person forms the intention to commit a crime and then drinks in order to enable them to
carry out the crime, they cannot then claim the intoxication prevented them from forming the mens
rea:

Attorney General for NI v Gallagher [1963] AC 349
The Respondent was an aggressive psychopath and prone to violent outbursts
...
He was frequently violent towards his wife
...
On his release he went out and brought a bottle of
whiskey and a knife
...
He drank the whiskey
and killed his wife with the knife and a hammer
...
I on the grounds of a mis-direction
...
The
Attorney General appealed to the House of Lords on the grounds that the defence of intoxication was
not open to him because before taking the drink, when there was no defect in his reason, he had
clearly evinced an intention to kill his wife and any temporary derangement of his reason at the time
of the killing was the result of his own voluntary act in taking the drink
...
The conviction restored
...

Lord Denning: "My Lords, this case differs from all others in the books in that the accused man, whilst
sane and sober, before he took to the drink, had already made up 'his mind to kill his wife
...

before getting drunk, has no intention to kill, but afterwards in his cups, whilst drunk, kills another by
an act which he would not dream of doing when sober
...
So why should
it be a defence in the present case? And is it made any better by saying that the man is a
psychopath?"
Critical Analysis:
1
...
(Kingston 1994)
...
‘The decision in O’Connor highlights the illogicality of the decision in O’Grady; the jury must
ignore D’s intoxication when considering whether he believed he was acting in self-defence
but they must take it into account in deciding whether he intended to kill or cause GBH
...
Allen, Textbook on Criminal Law 2009; ‘an accused charged with an offence may plead that he
acted as he did to protect himself, or his property or others from attack or to prevent crime or to
effect a lawful arrest… If raised successfully, such please provide a justification for the accused’s
conduct, thereby rendering it lawful
...
3(1) of the Criminal Law Act 1967 provides, ‘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 offenders or of persons unlawfully at large
...
These provisions apply only where s
...
The burden of proof is on the
prosecution
...
Elliot and F
...
’
Public and private defences cover the common law defence of self-defence, prevention of crime
under the Criminal Law Act 1967 and the protection of property under the Criminal Damage Act
1971
...
This as a consolidating
measure and the Act did not seek to change the existing law
...
Self-defence at common law
2
...
3 Criminal Law Act 1967
3
...
5 Criminal Damage Act 1971
...
3
Criminal Law Act may be used
...
For both self-defence and prevention of crime the
requirements are the same
...
S
...
At common law self-defence also requires
the force to be reasonable in circumstance
...

Reasonable Force
S
...
It applies where a person is relying on self-defence, or s
...
S
...
Its purpose is merely to clarify the existing law
...
76(9)
...

Subjective element
S
...
This is thus decided subjectively
...
76 (4) provides further
guidance on the application of this question:
If D claims to have held a particular belief as regards the existence of any circumstances a) the reasonableness or otherwise of that belief is relevant to the question whether D genuinely held
it; but
b) if it is determined that D did genuinely hold it, D is entitled to rely on it for the purposes of
subsection (3), whether or not i) it was mistaken, or ii) (if it was mistaken) the mistake was a
reasonable one to have made
...
He rushed to the aid of the youth and hit the attacker
...
The appellant was convicted of ABH under s
...
He appealed contending that the trial judge gave a misdirection to the jury in
requiring the mistake to be a reasonably held mistake
...

Beckford [1987] 3 WLR 611
The appellant was a police officer
...
According to the appellant a report had been
received from Heather Barnes that her brother Chester Barnes was terrorising her mother with a gun
...
The appellant said that on arriving at the house, he saw a man run from the back door
with an object which appeared to be a firearm
...
In fact no gun
was ever found
...
" The jury
convicted him of murder (which carries the death penalty in Jamaica)
...

Held: The appeal was allowed and the conviction was quashed
...

S
...

R v O’Grady [1987] QB 995
The appellant was an alcoholic
...
The friends then retired to the appellant's home and went to sleep
...
He said that he picked up some
broken glass and started hitting McCloskey in order to defend himself
...
He
said the fight subsided and he cooked them both a chop and went to sleep
...
His death was caused by loss of blood
...
There was severe bruising to the head, brain, neck and chest
...
There was a fractured
rib
...
The trial judge gave
the following direction in relation to self-defence: "It might be a view that you might take -- I know
not -- that this defendant thought he was under attack from the other man mistakenly and made a
mistake in thinking that he was under attack because of the drink that was in him
...
He would be entitled in those circumstances to defend himself
...
"

Where the person is actually under attack there should be no direction to the jury based on
intoxicated mistake:
R v McGrath [2010] EWCA Crim 2514
The appellant had been out drinking with her boyfriend celebrating her A level results
...
On their return to her parents’ house an altercation occurred
...
She grabbed a knife from the draw
...
On the issue of self –defence the trial
judge in his direction referred to s
...
The jury rejected the
defence and she was convicted of manslaughter
...

Held: Appeal dismissed
...

Reasonable force – objective element
Whilst the question of reasonable force is decided by reference to the circumstances the defendant
believed them to be the level of force is decided objectively
...
He ejected a drunken customer from his pub
...
The appellant was convicted of manslaughter and appealed
...
There was insufficient evidence to demonstrate that the
appellant had used excessive force and thus no unlawful act had been established
Beldam LJ: "If the mental element necessary to prove an assault is an intention to apply unlawful
force to the victim, and the accused is to be judged according to his mistaken view of the facts,
whether that mistake was on an objective view reasonable or not, we can see no logical basis for
distinguishing between a person who objectively is not justified in using force, but mistakenly believes
that the circumstances call for a degree of force objectively regarded as unnecessary
...
This was affirmed in R v Martin where the court rejected the question of taking
into account the characteristics of the defendant in assessing whether the level of force was
reasonable in the circumstances for the purposes of self-defence
...
The farm and surrounding buildings
were dilapidated and appeared to be derelict
...
On the night of Aug 20th 1999 Freddie Barras (aged 16) and Brendan Fearon (aged 30) broke into
the farm
...
He shot both the intruders killing Barras by a gunshot
wound to the back
...
He appealed on the grounds that his personality disorder should be taken into account in
assessing whether he had used reasonable force for the purposes of self-defence
...
Since the psychiatric reports had not been considered by the jury his conviction for murder
was quashed
...
McHale is that the deputy chairman was wrong in
directing the jury that before the appellant could use force in self-defence he was required to retreat
...
As the court understands it, it is submitted that if the injury
results in death then the accused cannot set up self-defence except on the basis that he had
retreated before he resorted to violence
...

The sturdy submission is made that an Englishman is not bound to run away when threatened, but
can stand his ground and defend himself where he is
...
McHale has been at considerable length and diligence to look at the text books
on the subject, and has demonstrated to us that the text books in the main do not say that
preliminary retreat is a necessary prerequisite to the use of force in self-defence
...

It is not, as we understand it, the law that a person threatened must take to his heels and run in the
dramatic way suggested by Mr
...
He must demonstrate that he is prepared to temporise and
disengage and perhaps to make some physical withdrawal; and that that is necessary as a feature of
the justification of self-defence is true, in our opinion, whether the charge is a homicide charte or
something less serious
...
McHale's third submission
...
In the final pub he met a man who
offered him a lift home which he accepted
...
The
appellant got into an argument with one of the other passengers a young woman
...
He became rude
and aggressive and pushed her to the ground
...
The appellant
contended that he thought the driver was about to attack him so he punched him
...
He sustained serious head injuries and had no
recollection of the night
...
Keane was
convicted of GBH and appealed
...
Where the defendant was the aggressor or deliberately provokes the
victim into punching him, there is no guaranteed right to rely on self-defence
...

Excessive force and murder:
There have been some calls for change where self-defence fails in relation to a murder charge due to
excessive force
...
The cases of Tony Martin and R v Clegg have fuelled such debate
...
Such an
approach was rejected by the Privy Council in R v Palmer
...
He was manning a vehicle check point along
with four other soldiers
...
A car approached the first checkpoint and slowed down
...
Another soldier ordered the car to stop to
no avail
...
The defendant fired three bullets as
the car was approaching and a final bullet as the car was driving away
...
The car had been stolen and contained
young 'joy riders' not terrorists
...
His appeal was rejected on the grounds that in firing the last shot after the danger had
passed, he had used excessive force in the circumstances
...
The great majority of persons found guilty of murder, whether they
are terrorist or domestic murders, kill from an evil and wicked motive
...
However, he was suddenly faced with a car driving through an
army checkpoint and, being armed with a high velocity rifle to enable him to combat the threat of
terrorism, he decided to fire the fourth shot from his rifle in circumstances which cannot be justified
and the firing of his fourth shot was found to be unlawful
...
But this court considers, and we believe that many other fairminded citizens would share this view, that the law would be much fairer if it had been open to the
trial judge to have convicted Private Clegg of the lesser crime of manslaughter on the ground that he
did not kill Karen Reilly from an evil motive but because, his duties as a soldier having placed him on
the Glen Road armed with a high velocity rifle, he reacted wrongly to a situation which suddenly
confronted him in the course of his duties
...
"
The Court of Appeal for Northern Ireland certified the following point of law to the House of Lords
"Where a soldier or police officer in the course of his duty kills a person by firing a shot with the
intention of killing or seriously wounding that person and the firing is in self-defence or in defence of
another person, or in the prevention of crime, or in effecting or assisting in the lawful arrest of
offenders or suspected offenders or of persons unlawfully at large, but constitutes force which is
excessive and unreasonable in the circumstances, is he guilty of manslaughter
and not murder?"
House of Lords held: In dismissing the appeal the House of Lords declined the opportunity to extend
the defence available under s
...
Whilst their
Lordships were persuaded with the merits of such a change, any change must come from Parliament
...
L
...
448
Howe had killed a man named Millard
...
They had driven to the scene of
these events in a car
...
He was
standing some eight or nine paces away from Howe at the time, and with his back to him
...
His evidence as to his reason for shooting Millard was that he thought that Millard was about to
attack him sexually and that he did not think that he could keep Millard off with his hands
...


R v Palmer [1971] AC 814
The appellant and two others were chased by three men after they stole some ganja
...
During the chase the appellant fired shots
...
The appellant's case was that he had not fired the shot which killed the man
although the trial judge directed the jury on self-defence
...
He
appealed contending that the judge in directing the jury on self-defence should have put an
alternative verdict of manslaughter to the jury
...
There is no option for a verdict of manslaughter where a defendant uses
excessive force in self-defence
...
Juries may take
into account the situation of the defendant in deciding if the force is excessive and in so doing may
take into account the position of dilemma facing the defendant
...
If a Jury thought that in a moment of unexpected anguish a person attacked had
only done what he honestly and instinctively thought was necessary that would be most potent
evidence that only reasonable defensive action had been taken
...
Elliott and F
...
By allowing the defence, the criminal law is recognizing that the defendant has been faced
with a terrible dilemma…There are now two forms of this defence: duress by threats and duress of
circumstances
...
Duress of
circumstances is the most recent development in criminal law and is closely linked to duress by
threats and the defence of necessity
...
In this respect the defence of duress cannot be raised in crimes of murder, attempted
murder or by those who participate in killing
...

Where the defence of duress is successfully pleaded it absolves the defendant of all criminal liability
...

Duress by threat
...
”

“Duress is the defence that applies where a person commits a crime because they were acting under
a threat of death or serious personal injury to themselves or another
...
” C
...
Quinn,
criminal Law 2010
...
6, ‘duress by threats is where a
person is told “commit a criminal offence or else you (or someone else) will be killed or seriously
injured
...
’ The burden of proof is on the prosecution
...
The jury had made a finding of fact that
he had acted under threat of death or immediate personal violence
...
The
appellant appealed contending that the finding of the jury should have resulted in an acquittal
...
Duress is a complete defence and not
simply a matter of mitigation in sentence
...
The application of this general rule must however be subject to
certain limitations
...
We have not to determine what class of crime other than murder should be placed in the
same category
...
Where the excuse of duress is applicable it must further be clearly shown that the
overpowering of the will was operative at time the crime was actually committed, and, if there were
reasonable opportunity for the will to reassert itself, no justification can be found in antecedent
threats
...
The elements of the defence were
more recently stated by Lord Bingham in the House of Lords decision of R v Hasan [2005] 2 WLR 709:
R v Hasan [2005] 2 WLR 709
The appellant worked for a woman, Claire Taeger, who ran an escort agency involving prostitution
...
Taeger then became involved with another man,
Frank Sullivan, who was a violent drug dealer
...
The appellant was aware that Sullivan was a dangerous man and
Sullivan had boasted to the appellant about three murders he had recently committed
...

Sullivan told him to commit a burglary on a house owned by one of Taeger’s clients
...
The appellant complied and was convicted
of aggravated burglary his defence of duress was rejected by the jury
...
The Court of Appeal allowed the
appeal and quashed his conviction
...
The failure to direct in
relation to foresight of the type of crime also amounted to a mis-direction
...

House of Lords Held: The appeal was allowed and his conviction was re-instated
...
The issue was properly put to the jury and should not be
subsumed within the application of the Graham test
...

Lord Bingham: “The defendant is, ex hypothesi, a person who has voluntarily surrendered his will to
the domination of another
...
There need not be foresight of
coercion to commit crimes, although it is not easy to envisage circumstances in which a party might
be coerced to act lawfully
...
”
“The policy of the law must be to discourage association with known criminals, and it should be slow
to excuse the criminal conduct of those who do so
...

Elements of the defence of duress by threat:
1
...
It is not sufficient
that the defendant has felt the need to commit a crime to meet a demand for money
...
The loan shark threatened him and
his girlfriend with serious violence unless he repaid the money
...
He raised the defence of duress
...
There was not a sufficient
nexus between the threat and the crime
...
Immediate threat
The immediacy requirement is not strictly applied
...
They
were called to give evidence in criminal proceedings against one of those involved in the fight
...
The
threat had been repeated on several occasions leading up to the trial and on the day of the
trial the person making the threats was in the public gallery in the court room and staring
menacingly at the appellants
...
The trial judge held that the defence of duress was
not open to the jury as the threat was not of immediate violence as the threat was made in a
court room and thus could not be carried out immediately
...

Held: The appeal was allowed and the convictions were quashed
...


R v Hasan [2005] 2 WLR 709
3
...
He had done so because he had
received threats of serious violence against him and his family if he did not comply
...
He also received financial
rewards for his action
...

Held: The appeal was allowed
...

4
...
In
breach of this he had provided journalists with 30 documents which he had obtained through
his position and which related to national intelligence and security issues
...
He appealed against this ruling contending that the disclosure was
necessary to safeguard members of the public
...
Whilst the defence of duress could be raised in offences under the
Official Secrets Act, there was insufficient precision in Shayler’s claims
...

This includes threats against family members:
R v Martin [1989] 88 Cr App R 343
The appellant had driven whilst disqualified from driving
...
His wife had
attempted suicide on previous occasions and the son was late for work and she feared he
would lose his job if her husband did not get him to work
...
He appealed the ruling
...
The defence of duress of circumstances should have been available to
him following the decisions in R v Conway and R v Willer
...
It did not matter that the threat of
death arose through suicide rather than murder
...
Tonna had been in a vehicle
a few weeks earlier, when another man was shot and severely injured and Tonna was chased
and narrowly escaped
...
The appellant

noticed that a car was following him and fearing that it was the person responsible for the
shooting, drove off at great speed and recklessly
...
The trial judge ruled that the defence of necessity could not be raised
...

Held: Conviction quashed
...

Whilst threatened suicide of another may be sufficient, a person cannot rely on their own
suicidal tendency to constitute the threat of death:

R v Rodger & Rose [1998] 1 CAR 143
The two appellants were inmates in Parkhurst Prison
...
They claimed that this made them suicidal and they broke
out of prison to avoid the threat of death which these circumstances had given rise
...

5
...

The test established in R v Graham applies to determine whether the threat was so great as
to overbear the ordinary powers of human resistance:
R v Graham [1982] 1 WLR 294
The appellant lived in a flat with his wife, Mrs Graham (the victim), and his homosexual lover,
Mr King
...
Mr
King was of a violent disposition and both the appellant and his wife were frightened of him
and had experienced violence from him
...
As a
result of the attack Mrs Graham went to stay with the appellant's mother
...
King
then told the appellant it was time to get rid of her for good
...

The appellant phoned up Mrs Graham and told her that he had cut his wrists and to come
round straight away
...
The appellant assisted by holding onto the flex
...
King pleaded guilty to murder and was sentenced
...
In relation to duress, the appellant raised an argument
which was supported by medical evidence that his anxiety and intake of Valium would have
made him more susceptible to threats
...
The jury convicted and he appealed on the grounds that the judge should have
allowed the jury to take into account his particular characteristics
...
The fact that a defendant's will to resist has been eroded by
the voluntary consumption of drink or drugs or both is not to be taken into account
...

All three elements are objective in nature
...
For crimes of murder, attempted murder or for an accessory to murder
2
...
Where the defendant voluntarily, with knowledge of its nature, joined a violence criminal
gang
4
...
Where the defendant became indebted to drug dealers
6
...
He
had held the victim whilst she was being attacked with a cutlass and then buried her alive
...
He appealed his conviction contending the defence of
duress should have been available
...

The defence of duress is not available for murder to a principal in the first degree
...
The appellant did not
know Meehan personally but knew of his reputation
...
Three armed men in combats and balaclavas got into the car and the appellant drove them as
directed
...
The appellant was convicted of murder, the
trial judge having ruled that the defence of duress was not available in the circumstances
...

Held: Appeal allowed (Lord Simon and Lord Kilbrandon dissenting)
...

However, his was overruled in Howe & Bannister which also stated obiter that the defence of duress
should not be available to attempted murder:
Howe & Bannister [1987] 2 WLR 568
Howe & Bailey both aged 19 and Bannister aged 20, were acting under orders of Murray aged 35
...
The first murder related to a 17 year
old male victim, Elgar
...
Elgar was naked and sobbing
and was subjected to torture and compelled to undergo sexual perversions
...
Bailey strangled Elgar resulting in his death
...
Murray had ordered Howe and
Bannister to strangle him and they complied
...

Held: The defence of duress is not available for murder whether it be a principal in the first or second
degree
...

Obiter dicta - The defence should not be available to one who attempts murder
...
The
sanctity of human life lies at the root of this ideal and I would do nothing to undermine it, be it ever
so slight
...
It cannot be right to allow the defence to one who may
be more intent upon taking a life than the murderer
...
He stabbed his mother causing serious injuries but she survived
...

He pleaded guilty and then appealed the judge’s ruling
...

The House of Lords followed the obiter dicta statement from R v Howe & Bannister and held that the
defence of duress was not available for attempted murder
...

Voluntarily joining a criminal organisation
Where the defendant voluntarily, with knowledge of its nature, joined a violent criminal gang they will
be denied the defence
...
He then wished to leave but was
threatened with serious violence if he did so
...
He was convicted of murder and his appeal was dismissed
...
"
The defence may be allowed where the criminal organisation is not known to be violent:
R v Shepherd [1988] 86 Cr App R 47
The appellant was a member of a gang of shoplifters
...
He was charged with burglary and the trial
judge withdrew the defence of duress from the jury and he was convicted
...
A gang of shoplifters is very different from a paramilitary
organisation or gang of armed robbers
...
The jury should at least have been invited to consider whether he could be said to have taken
the risk of violence simply by joining a gang whose activities were not overtly violent; they might well
have convicted still, but should at least have been given the opportunity to decide
...
He later wished to leave but was threatened
...
He was denied the defence of duress
...
"
Indebtedness to drug dealers
Where the defendant became indebted to drug dealers and is subjected to threats if they do not
commit an offence, they are taken to have put themselves in the position and the defence of duress is
denied
...
The supplier
ordered him to rob a bank or building society otherwise he would kill him
...
In directing the jury on the defence of
duress, the trial judge had said:
"The final question is this: did he, in obtaining heroin from Mr X and supplying it to others for gain,
after he knew of Mr X's reputation for violence, voluntarily put himself in a position where he knew
that he was likely to be forced by Mr X to commit a crime?" The appellant appealed contending that
the judge should have said "forced by Mr X to commit armed robbery"
...
"The crux of the matter, as it seems to us, is knowledge in the defendant of
either a violent nature to the gang or the enterprise which he has joined, or a violent disposition in
the person or persons involved with him in the criminal activity he voluntarily joined
...
"
R v Flatt [1996] Crim LR 576
The appellant was a drug addict who became indebted to his supplier
...
He was convicted of possession with intent to supply
...

Held: The appeal was dismissed and his conviction was upheld
...

It was considered that the defendant must foresee the type of offence that he may be coerced into
committing:
R v Baker and Ward [1999] 2 Cr App R 335
The appellants had been convicted of robbery
...
The
threat came from a drug supplier whom they had become indebted to
...
"

Held: This was held to be a misdirection
...

What a defendant has to be aware of is the risk that the group might try to coerce him into
committing criminal offences of the type for which he is being tried by the use of violence or threats
of violence
...

However, this point was overruled by the House of Lords in the following case:
R v Hasan [2005] 2 WLR 709
The appellant worked for a woman, Claire Taeger, who ran an escort agency involving prostitution
...
Taeger then became involved with another man,
Frank Sullivan, who was a violent drug dealer
...
The appellant was aware that Sullivan was a dangerous man and
Sullivan had boasted to the appellant about three murders he had recently committed
...

Sullivan told him to commit a burglary on a house owned by one of Taeger’s clients
...
The appellant complied and was convicted
of aggravated burglary his defence of duress was rejected by the jury
...
The trial judge had stated that the jury should find him guilty and reject the defence of duress if
they were sure that he could have avoided acting as he did without harm coming to his family
...
The trial judge had not directed the jury in line with R v Baker & Ward as to whether the
defendant had foreseen that he was likely to be subjected to threats to commit a crime of the type
for which he was charged
...
The facts did not suggest
that the defendant could have taken evasive action and therefore there was no need to direct the
jury on this point
...
The Crown appealed to the Lords
...
There was no misdirection on the issue of evasive action
...
There was no requirement that the defendant
foresaw that type of crime that he may be compelled to commit
...
Nothing should turn on foresight of the manner in which, in the event, the
dominant party chooses to exploit the defendant's subservience
...
In holding that there must be foresight of coercion to commit crimes of the
kind with which the defendant is charged, R v Baker and Ward mis-stated the law
...
If a person voluntarily becomes or remains
associated with others engaged in criminal activity in a situation where he knows or ought reasonably
to know that he may be the subject of compulsion by them or their associates, he cannot rely on the
defence of duress to excuse any act which he is thereafter compelled to do by them
...
The defence of
duress is therefore denied in these situations
...
They were
called to give evidence in criminal proceedings against one of those involved in the fight
...
The threat had been
repeated on several occasions leading up to the trial and on the day of the trial the person making the
threats was in the public gallery in the court room and staring menacingly at the appellants
...

The trial judge held that the defence of duress was not open to the jury as the threat was not of
immediate violence as the threat was made in a court room and thus could not be carried out
immediately
...

Held: The appeal was allowed and the convictions were quashed
...
When, however, there is no opportunity for delaying
tactics, and the person threatened must make up his mind whether he is to commit the criminal act
or not, the existence at that moment of threats sufficient to destroy his will ought to provide him with
a defence even though the threatened injury may not follow instantly, but after an interval
...
"
Duress of circumstances
Duress of circumstances differs from duress by threat in that the circumstances dictate the crime
rather than a person
...
This defence will often allow a defence where the defence of necessity
would deny one
...

The Law Commission, Law Commission Report No 304, paragraph 6
...
’
The Law Commission, Law Commission Report No 304, paragraph 6
...
’
R v Willer [1986] 83 Cr App R 225
The appellant had been convicted of reckless driving
...
He heard one of them shouting, "I'll kill you
Willer" and another threatening to kill his passenger
...

The youths surrounded him
...
The appellant mounted the pavement in order
to escape
...
He appealed against the judge's ruling
...
The Court of Appeal held that the defence of duress should have been
available
...
Tonna had been in a vehicle a few
weeks earlier, when another man was shot and severely injured and Tonna was chased and narrowly
escaped
...
The appellant noticed that a car was
following him and fearing that it was the person responsible for the shooting, drove off at great speed
and recklessly
...
The trial judge ruled that the
defence of necessity could not be raised
...

Held: Conviction quashed
...

The later case of R v Martin affirmed the defence and held that it was governed by the same rules as
duress by threat
...
He claimed he did so because his wife
threatened to commit suicide if he did not drive their son to work
...
The appellant pleaded guilty to driving whilst disqualified following a ruling
by the trial judge that the defence of necessity was not available to him
...

Held: Appeal allowed
...
No distinction was to be drawn between driving
whilst disqualified and reckless driving
...

Simon Brown J: “The principles may be summarised thus: First, English law does, in extreme
circumstances, recognise a defence of necessity
...
Equally however it
can arise from other objective dangers threatening the accused or others
...

Secondly, the defence is available only if, from an objective standpoint, the accused can be said to be
acting reasonably and proportionately in order to avoid a threat of death or serious injury
...
”
R v Pommell established that it is available to all crimes except murder, attempted murder and those
who assist murder
...

Necessity
A
...
Sullivan, Criminal Law; Theory and Doctrine (2010), 787: “this defence must be
distinguished carefully from the newly emerged defence of duress of circumstances
...
In the case of a necessity plea, attention is paid foremost to

the value of D’s Act, the claim that by breaking the letter of the law more benefit was obtained than
would have been the case with compliance
...
The defence of necessity often operates where the defendant has two
alternatives, either commit a crime or suffer or cause another extreme hardship
...


The defence of necessity can only be pleaded in extreme circumstances and is often unsuccessful
...
He was intoxicated and had fallen asleep
...
He grabbed the steering
wheel and managed to safely steer the car and stop
...

Cichon v DPP [1994] Crim LR 918
A dog owner removed the muzzle from his pit bull terrier whilst in public as the dog was suffering
from kennel cough
...
1(2)(d) Dangerous Dogs Act 1991 was upheld
...
We have
here an absolute prohibition and a breach of that prohibition is to be followed by an order for the
dog’s destruction, however blameless the dog and its owner”
A major case with necessity was raised in Dudley & Stephens where it was again held unsuccessful, as
it was held that the defence of necessity could not be raised for murder offences
...
They were forced to abandon their ship and
were stranded in a small emergency boat with two others including a young cabin boy
...
The food had ran out 7 days earlier and they had had no water for five days
...
The third man did not agree and the cabin boy was by this time too weak to
take part in any decision
...
Dudley and Stephens cut
the cabin boys throat
...
All three men fed on the boy and were
rescued four days later
...

Held: The defendants were convicted of murder
...
They
were sentenced to death but then granted a pardon by the Crown and served 6 months
imprisonment
...
It is further admitted that there was in this case no such excuse, unless the killing was
justified by what has been called 'necessity'
...
Nor is this to be regretted
...
"
"It is not needful to point out the awful danger of admitting the principle which has been contended
for
...
In this case the weakest, the youngest, the most unresisting, was chosen
...
'”
Re F (Mental patient sterilisation) [1990] 2 AC 1
F was a 36 year old woman
...
She had been a voluntary in patient in a mental hospital since the age of 14
...
She developed a sexual relationship
with a fellow patient
...
Other methods
of contraceptives were not practical for her
...
F was incapable of giving valid consent since she did not appreciate the implications
of the operation
...
It would be lawful for the doctors to operate without her consent
...
Furthermore, before Scott Baker J
...
to
the proposed operation of sterilisation, or to dispense with the need for such consent…
...
Upon what principle can medical treatment be justified when given without consent? We
are searching for a principle upon which, in limited circumstances, recognition may be given to a
need, in the interests of the patient, that treatment should be given to him in circumstances where he
is (temporarily or permanently) disabled from consenting to it
...
"
The most liberal application of the defence was seen in the unusual case of Re A, where the defence
of necessity was allowed for the offence of murder in relation to a life-saving operation to separate
conjoined twins:

Re A (Conjoined twins) [2001] 2 WLR 480
Mary and Jodie were conjoined twins joined at the pelvis
...
However, Mary was weaker, she was described as having a primitive
brain and was completely dependent on Jodie for her survival
...
If they operated to separate them, this would inevitably lead to the death of Mary, but Jodie
would have a strong chance of living an independent life
...
The doctors applied to the court for a declaration that it would be lawful
and in the best interests of the children to operate
...
The parents appealed to the Court of Appeal on the grounds that the learned judge erred
in holding that the operation was (i) in Mary's best interest, (ii) that it was in Jodie's best interest, and

(iii) that in any event it would be legal
...
The operation could be lawfully carried out by the doctors
...
But as the matter has been referred to the court the court cannot escape the
responsibility of deciding the matter to the best of its judgment as to the twins' best interests
...
Therefore the Court of Appeal must
form its own view
...
It would be unlawful to kill Mary
intentionally, that is to undertake an operation with the primary purpose of killing her
...

(v) Every human being's right to life carries with it, as an intrinsic part of it, rights of bodily integrity
and autonomy - the right to have one's own body whole and intact and (on reaching an age of
understanding) to take decisions about one's own body
...
There is a strong presumption that an operation to
separate them would be in the best interests of each of them
...
Mary's death would not be the
purpose of the operation, although it would be its inevitable consequence
...
She would die, not because she was
intentionally killed, but because her own body cannot sustain her life
...

(ix) The proposed operation would therefore be in the best interests of each of the twins
...

(x) The proposed operation would not be unlawful
...
But Mary's death would not be the purpose or
intention of the surgery, and she would die because tragically her body, on its own, is not and never
has been viable
...

LJ Brooke: If a sacrificial separation operation on conjoined twins were to be permitted in
circumstances like these, there need be no room for the concern felt by Sir James Stephen that
people would be too ready to avail themselves of exceptions to the law which they might suppose to
apply to their cases (at the risk of other people's lives)
...
According to Sir James Stephen, there are three necessary requirements for the
application of the doctrine of necessity:
(i) the act is needed to avoid inevitable and irreparable evil;
(ii) no more should be done than is reasonably necessary for the purpose to be achieved;
(iii) the evil inflicted must not be disproportionate to the evil avoided
...


Whilst the defence of necessity is often used to protect medical professionals perceived to be acting
in the best interest of their patients, the defence of necessity has been denied in self-medication
cases involving cannabis:
R v Quayle [2005] 1 WLR 3642
Five appeals were jointly heard with one Attorney General reference
...
In all the appeals the appellants argued that the cannabis
was for medical purposes for the relief of pain for various medical ailments including HIV, Multiple
sclerosis and severe back pain
...

Mance LJ: "Its starting point is that the Secretary of State shall exercise his power to enable doctors
(among other qualified professionals) to have, prescribe and supply controlled drugs (see section 7(3)
of the 1971 Act and the consequential provisions of Misuse of Drugs Regulations 2001 dealing with
importation set out in paragraph 11 above)
...
Cannabis, cannabis resin and most cannabinoids are, under SI 2001 No
...

3997, designated as drugs which may only be used for medical or scientific research and as drugs to
which s 7(4) of the 1971 Act applies
...
"
R v Altham [2006] 1 WLR 3287
The appellant had been in a serious car accident 14 years before he was charged
...
He tried a number of
forms of pain relief prescribed by his doctor which either proved ineffective or had intolerable side
effects
...
He was charged on a single count of possession of 5 grams of cannabis resin
...
He appealed against the judge’s ruling arguing that denial of the defence
amounted to a breach of Art 3 of the European Convention of Human Rights in that his medical
symptoms amounted to inhuman or degrading treatment and if the only way to avoid the symptoms
is to break the criminal law and risk prison, then the state is subjecting him to inhuman or degrading
treatment
...

Scott Baker LJ: "In our judgment the state has done nothing to subject the appellant to either
inhuman or degrading treatment and thereby engage the absolute prohibition in Article 3
...
"
Thus it can be seen that the defence of necessity is generally only successfully applied in medical
cases
...
The defence of duress is still quite restrictive but is
perhaps more amenable than the defence of necessity
...
’
The maximum penalty is seven years’ imprisonment, according to section 7 of the Theft Act 1968, as
amended by section 26 of the Criminal Justice Act 1991
...
It also covers later assumption where property has been innocently acquired
...
Morris was arrested
after paying a lower sum for certain items, Burnside was arrested before paying for the goods
...

Held: There need not be an appropriation of all the rights of an owner
...

Lord Roskill: "If one postulates an honest customer taking goods from a shelf to put in his or her
trolley to take to the checkpoint there to pay the proper price, I am unable to see that any of these
actions involves any assumption by the shopper of the rights of the supermarket
...
"
An appropriation may still be present notwithstanding the consent of the owner:
Lawrence v MPC [1972] AC 626
An Italian man who spoke little English, arrived at Victoria Station on his first visit to this country
...
The taxi driver told
him it was a long way and would be expensive
...
The driver intimated that it was not enough and
reached into his wallet and took a further six pounds out of it
...
6d
...

Held: His conviction for theft was upheld
...


DPP v Gomez [1993] AC 442
Gomez, was an assistant manager at an electrical goods shop
...
Gomez prepared a list of goods to the value of the cheques which he submitted to
the manager asking him to authorise the supply of the goods in return for a building society cheque in
that sum
...
" The manager then
authorised the transaction and the goods were delivered
...
They were convicted
of theft and appealed contending that as the manager had authorised the transaction there was no
appropriation following R v Morris which required an adverse interference of the rights of an owner
...

Held: The House of Lords followed Lawrence and upheld the convictions
...
The Lords were critical of Lord Roskill's analysis of appropriation in R v
Morris
...
They sold their house and the appellant found a house for them to
purchase
...
The
letter of authority was signed by the Reids
...
The appellant was convicted of theft and appealed on the
grounds that an appropriation had not taken place
...
The conviction for theft was substituted with a conviction for
deception
...
Money includes notes and coins
– unless a person intends to give back the exact same notes and coins they have the intention to
permanently deprive a person of those particularly notes and coins
...
He took money from the company's safe and claimed that he
intended to return it after the weekend
...
Unless he intended to pay back the exact notes and coins he had the
intention to permanently deprive the company of the money taken
...
g
...
Or

b) Where D is not in possession of the property but appropriates anything forming part of the
land by severing or causing it to be severed
...

Personal property refers to property other than land
...
When Jordan
arrived at the meeting point, the other appellants, Plummer and Haines, emerged from an alleyway
where they had been hiding and attacked Jordan
...
Once Jordan was on the ground all three kicked him and demanded the
heroin
...
The three appellants were convicted of
robbery and appealed on the grounds that drugs did not constitute property for the purposes of the
Theft Act since the possession of it was unlawful
...
The convictions were upheld
...
4 Theft Act 1968 defines property as including
all tangible property, whilst some exceptions are set out in the Act such as real property and wild
animals, the exceptions do not extend to property in unlawful possession
...
He was given permission to draw anatomical specimens held by the Royal College
of Surgeons
...
During the course
of his visits he met Lindsay who was a junior technician working for the RCS
...
These included three human heads, six arms,
ten legs part of a brain and three torsos
...
Both Kelly and Lyndsey were convicted of theft and appealed contending the body
parts did not constitute property lawfully in the possession of RCS
...
Convictions upheld
...

‘Things in action’ refers to a personal property right which can be legally enforced, e
...
a patent right,
a debt, a right arising under a trust, a right to overdraw an account, a cheque etc
...
However, it has been held that
confidential information does not constitute property for the purposes of the Theft Act:
Oxford v Moss [1979] 68 Cr App Rep 183
The Defendant, a student of engineering, took an exam paper with the intention of returning the
paper having used the information gained in order to cheat in his exam
...

Section 4(3) of the Theft Act 1968 provides that a person who picks wild mushrooms, flowers or
foliage growing wild on any land will not be liable for theft unless it is for sale or reward
...


Belonging to another
Section 5(1) of the Theft Act 1968 provides that property will be regarded as belonging to any other
person having possession or control of it
...
When he went to pick it up he saw that
the car was left outside with the key in
...
He was liable
for theft of his own car since the car was regarded as belonging to the service station as they were in
possession and control of it
...
Therefore if a person receiving the property deal with it in a way which is inconsistent
with the instructions this can amount to theft
...

The defendant spent the money on Christmas presents and left the flat without paying the gas bill
...
5(3) TA 1968 the cheques had been given with a clear
obligation to apply the money for payment of the gas bill
...
He paid these monies into
the general current account for the business
...

Held: The travel agent was not liable for theft as there was no obligation to deal with the money in a
particular way under s
...

Section 5(4) provides that where a person receives property by mistake and is under an obligation to
return the property, a failure to restore the property will amount to theft
...
She had noticed
that she had received more than she was entitled to but did not say anything to her employer
...
The trial judge directed the jury to acquit
...

Held: It was possible for a theft conviction to arise where the defendant had not withdrawn the
money
...

If the defendant is unaware of the over payment, however, there is no dishonesty:
Moynes v Cooper [1956] 1 KB 439
The Appellant workman received £7 in his pay packet more than was due to him
...
He then kept the £7
...

There must be a legal obligation to return the money as oppose to a moral obligation:
R v Gilks [1972] 1 WLR 1341
The Appellant placed a bet on a horse called 'Fighting Scott'
...
The manager of the betting shop mistakenly believed the Appellant had won the bet
and paid out £106
...
The Appellant knew that the manager was mistaken but accepted the money
...
Ashcroft, 1938 1 Kings Bench, the money was
simply a gift and therefore in law belonged to him
...
5(4) Theft Act 1968 relating to
money received by mistake required a legal obligation, moral obligation was not sufficient
...
5(4) of the Theft Act 1968
since the property in the £106
...
However, if s
...

Abandoned property
If property is truly abandoned it has no owner and anyone who takes it will not be liable for theft
...


Ricketts v Basildon Magistrates [2010] EWHC 2358
The appellant took six bags containing used clothing and other miscellaneous items from outside
charity shops owned by Oxfam and the British Heart Foundation (BHF)
...
The bags from Oxfam were taken from a bin outside the shop in which people could
leave donated items
...
The
Magistrates committed the case to the Crown court on the basis that he had stolen property
belonging to Oxfam and the BHF
...

Held: The bags taken from the bins outside Oxfam could be taken to be in Oxfam’s possession at the
time he appropriated them
...
However, it
didn’t follow that the items had been abandoned
...
The items still belonged to the donor until BHF took possession
...
e
...

However, where the owner cannot be found by taking reasonable steps, the finder of the property
has better title to the items than the owner of land on which items are found:
Bridges v Hawkesworth [1851] 21 LJ QB 75
The claimant found a package that had been dropped in the defendant’s shop
...
The claimant left it with the
defendant to return to the true owner if they returned to collect it
...
The claimant asked the
defendant to return the money to him
...

Held: The claimant was entitled to the return of the money
Unless, they are a trespasser:
Hibbert v McKiernan [1948] 2 KB 142
The defendant collected lost balls on a golf course owned by a golf club
...
He did not have permission to be on the golf course or to collect the
balls
...
The
police patrolled the area and caught him in the act
...

Held: His conviction for theft was upheld
...
As a trespasser, the
defendant could not demonstrate a better right to the balls
...
The park was open to the public
for leisure and recreational use and Mr Fletcher was a lawful visitor to the park
...
He reported his findings and a coroners inquiry
was set up to determine if the item was treasure trove
...
The Council then brought an action against Mr Fletcher claiming
ownership of the brooch
...

Elwes v Brigg Gas Company [1886] 33 Ch D 562
A prehistoric boat was found by a tenant six feet below the surface of the land
...

Chitty J: "He was in possession of the ground, not merely of the surface, but of everything that lay
beneath the surface down to the centre of the earth, and consequently in possession of the boat
...
Obviously the right of the original owner could not be established; it had for
centuries been lost or barred… The plaintiff, then, had a lawful possession, good against all the world,
and therefore the property in the boat
...
"
Mens Rea of Theft
Dishonesty
There is no statutory definition of dishonesty, although section 2(1) Theft Act 1968 gives three
instances of when a person is not to be regarded as dishonest:
a) 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 of a third person; or
b) 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; or
c) If he appropriates the property in the belief that the person to whom the property belongs
cannot be discovered by taking reasonable steps
...
There is no requirement that the defendant’s
belief is reasonably held
...
He took some used tyres and was convicted of theft
...
However, his contract of employment contained a clause forbidding the
taking of used items
...
The question of dishonesty under the
exceptions in s
...
It is the defendant's belief alone
that counts not what he was actually permitted or forbidden from doing
...
It had been left in the same place
for two weeks with the keys in the ignition
...
There is no requirement that the defendant's belief is reasonable so it was
immaterial that a reasonable person would have known to contact the DVLA to discover the owner
...
This is perhaps a little unhelpful in determining honesty since it does not state whether a person
will be honest or not, but simply ‘may
...

R v Feely [1973] QB 530
The appellant was the manager in a betting shop
...
The trial judge held that his actions were clearly dishonest
and his intention to replace the money was irrelevant
...
The trial judge should have put the issue of dishonesty to the jury
...
He argued his actions were not dishonest as the same sums were legitimately due to him for
consultancy fees
...
There are, sad to say,
infinite categories of dishonesty
...
Jurors in the past and, whilst we have criminal law in the
future, jurors in the future have to set the standards of honesty
...
I cannot really expand on this too much, but probably it is something
rather like getting something for nothing, sharp practice, manipulating systems and many other
matters which come to your mind
...

Held: His conviction was upheld
...
If it was not dishonest by those standards, that is
the end of the matter and the prosecution fails
...
"
Intention to permanently deprive
Under section 6(1) of the Theft Act 1968 a person is treated as having the necessary intention if they
treat property as their own regardless of the owners’ rights
...
g
...
The operation of this provision can be seen in:
R v Lavender [1994] Crim LR 297
The defendant removed some doors from a council property that was due for demolition
...

Held: He did have the intention to permanently deprive under s
...


R v Marshall [1998] 2 Cr App R 282
The appellants obtained unexpired travel tickets from commuters on the London Underground and
sold them on to others
...
He was going
to leave the question of dishonesty to the jury
...
It was argued that the issuing of the ticket is analogous to the
drawing of a cheque in that in each instance a chose in action is created which in the first case
belongs to the customer and in the second to the payee
...

Held: The convictions were upheld
...
6
...
"
(See Talkington -v- Magee (1902) 2KB 427 per Channell at 230)
...
Under that contract
each party has rights and obligations
...
Therefore
it is arguable, we suppose, that by the transaction each party has acquired a chose in action
...
On the side of London Underground it encompasses the right to insist
that the ticket is used by no one other than the purchaser
...
But here the charges were in relation to the tickets
and travel cards themselves and a ticket form or travel card and, dare we say, a cheque form is not a
chose in action
...

Section 6 (1) prevails for the reasons we have given
...
The
courts have taken a strict line on what amounts to being equivalent to an outright taking:
R v Lloyd, Bhuee & Ali [1985] QB 829
Lloyd worked as a chief projectionist at a cinema
...
The judge left the issue of intention to permanently to
deprive for the jury to decide
...
1 Criminal
Law Act 1977 (liability requires proof of theft under the Theft Act 1968)
...

Held: Appeal allowed
...

The wording of section 6(1) "and a borrowing or lending of it may amount to so treating it if, but only
if, the borrowing or lending is for a period and in circumstances making it equivalent to an outright
taking or disposal" requires all the goodness, virtue and practical value to be taken from the goods
...

Lord Lane CJ: "These films, it could be said, were borrowed by Lloyd from his employers in order to
enable him and the others to carry out their 'piracy' exercise
...
This half of the subsection, we
believe, is intended to make it clear that a mere borrowing is never enough to constitute the
necessary guilty Bind unless the intention is to return the "thing" in such a changed state that it can
truly be said that all its goodness or virtue has gone
...
v
...
l8l,
where the defendant stole railway tickets intending that they should be returned to the railway
company in the usual way only after the journeys had been completed
...

The learned Judge in the present case gave another example, namely the taking of a torch battery
with the intention of returning it only when its power is exhausted
...
Our view is that they cannot
...
The film could still be projected to paying audiences, and, had
everything gone according to the conspirators' plans, would have been projected in the ordinary way
to audiences at the Odeon Cinema, Barking, who would have paid for their seats
...
What had happened was that the borrowed film had been used or was
going to be used to perpetrate a copyright swindle on the owners whereby their commercial interests
were grossly and adversely affected in the way that we have endeavoured to describe at the outset of
this judgment
...
There was still virtue in the film
...
In criminal law, robbery is a
form of aggravated theft, in that it involves the offence of theft plus force of threat of force on a
person
...

Under section 8 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
...
Steals
This element of the actus reus of robbery requires that all element of theft must be
established
...
He went to ask her for it and a fight
developed between the defendant and the woman's husband
...
The defendant picked it up and kept it
...

Held: Conviction was quashed
...
2(1)(a) since the defendant had an
honest belief that he was entitled to the money
...
Immediately before or at the time of stealing
The offence of theft is complete as soon as the appropriation has taken place
...
However, the courts have adopted a pragmatic approach and have
treat the appropriation as a continuing act
...
One went upstairs and took some jewellery
from her bedroom
...
They were
convicted of robbery and appealed on the grounds that the force came after they had
appropriate the jewellery and thus did not come within the requirement of being
immediately before or at the time of stealing
...
The appropriation of the jewellery was a continuing act
...
The act of
appropriation does not cease
...
"
R v Vinall [2011] EWCA Crim 6252
The defendant had been caught shop lifting by a security guard
...
He was convicted of robbery and appealed contending that the case
of Gomez had impliedly overruled Hale on the point relating to the appropriation being a
continuing act
...
Hale was still good law and an appropriation is a continuing act
...

3
...
The jury are
given no guidance as to the meaning of force
...
The jury convicted both of robbery and they appealed contending
that nudging fell short of using force
...
The word force is to be given its ordinary meaning and requires no
direction to the jury
...

There is no requirement that the force is directly applied to a person:
R v Clouden [1987] Crim LR 56
The defendant wrenched a shopping bag from a woman's grasp
...
It was held that the force used on the bag was sufficient to amount to
force on a person
...
Thus the use of gratuitous violence
at the time of stealing but not used in order to steal is strictly speaking outside the boundaries of the
offence of robbery
...
Although this point has
not been litigated in the appeal courts and it may well be that a robust approach is taken
...
e
...

There must be mens rea relating to the trespass as well as to a relevant ulterior offence
...
There are two offences of
burglary created under sections 9(1)(a) and 9(1)(b)
...
There is also an offence of aggravated
burglary under section 10 of the Theft Act 1968
...
Aggravated burglar carries
a maximum penalty of life imprisonment
...
9(1)(a) if he enters a building, or any part of a building, as a
trespasser, with intent to either:
-Steal anything in the building
-Inflict GBH on any person in the building
-Or doing unlawful damage
This section is thus concerned with entry with intent
...
As the following case illustrates:
R v Collins [1973] 3 WLR 243
The defendant was charged with burglary
...
He descended the ladder and stripped down to his
socks then climbed up again
...
She thought it was her
boyfriend so invited him in
...
They proceeded to have sexual intercourse
...
He ran off
...
9(1)(a) on the grounds that he entered as
a trespasser with the intent to commit rape
...
The jury convicted
...

Held: His conviction was quashed
...
Consent of the home owner (the girl's
parents) was not required it was sufficient that the girl had invited him in
...
9(1)(b) if, having entered as a trespasser, he steals,
attempts to steal anything in the building or inflicts or attempts to inflict GBH on any person therein
...
Also (a)
covers unlawful damage whereas (b) does not
...

These are:

1
...

However later cases suggest that it is no longer required, for example:
R v Brown [1985] Crim LR 212
The appellant appealed against his conviction for burglary
...
He had leaned in and taken goods
...

Held: His conviction was upheld
...

R v Ryan [1996] Crim LR 320
The defendant was found wedged in the kitchen window of the home belonging to an elderly
man
...

The fire brigade had to be called to remove him
...

Held: His conviction was upheld
...

2
...
9(4) states that inhabited vehicles and
vessels are included even if not inhabited at the time of the offence
...
It was connected
to the electricity supply and had been in the same place 2-3 years
...

Entering a part of a building was considered in:
R v Walkington [1979] 1 WLR 1169
The defendant was in Debenhams department store
...
He reached behind the counter and looked into the till but it was empty
...
9(1)(a) for entering a part of a building with intent to
steal
...

Held: His conviction was upheld
...
The
counter area was clearly out of bounds to the public and thus he was a trespasser in that part
of the building
...
As a trespasser
This covers those who may have permission to be in the property but exceed the permission
by doing something which they were not invited to do
...

The father gave evidence stating that his son had permission to be in his house
...


Mens Rea of burglary
There must be mens rea relating to the trespass as well as to a relevant ulterior offence
...

The section 9(1)(a) offence requires intention to commit one of the ulterior offences
...
9(1)(b)
offence the requisite mens rea of the ulterior offence must be present
...
10 Theft Act 1978
Under s
...

“Firearm” includes an airgun or air pistol, “imitation firearm” means any article made or adapted for
use for causing injury to or incapacitating a person, or intended by the person having it with him for
such use
...

The relevant time for possessing the weapon depends on whether it is a 9(1)(a) offence, or a 9(1)(b)
offence
...
If (b) then possession must be at the time the
ulterior offence is committed
...
Once inside he took a knife from the kitchen and
took it upstairs to affect the burglary
...
9(1)(b) and there was thus no requirement that he had the
knife at the time of entry
...

There is no need to establish the defendant intended to use the weapon in the burglary:
R v Stones [1989] 1 WLR 156
The defendant was caught by the police during the course of committing a burglary
...
He appealed contending that
he had no intention to use the knife in the burglary and was only carrying it as the lads from Blyth
were after him
...
Possession of the weapon at the time of the burglary is all that is required
for aggravated burglary
...


Fraudulent Property Offences
There were a number of deception offences under the Thefts Act 1968 and 1978
...


The 2006 Act also created a new offence of dishonestly obtaining services that replaced the offence
of obtaining services by deception under the Theft Aft 1978
...

The purpose of the 2006 reforms; The Law Commission, Fraud (Law Commission Report No 276),
paragraph 1
...
We
have now come to the conclusion that it would
...
These criminalised conduct where D
‘dishonestly’ and by ‘deception’:
i) obtained property belonging to another, with the intention of permanently depriving the other of it
(Theft Act 1968, s
...
15a)
iii) Obtained services (Theft Act 1978, s
...
2(1)(a))
v) Induced a creditor to wait for payment or to forego payment, with the intention to make
permanent default on the debt (Theft Act 1978, s
...
2(1)(c))
vii) Obtained a pecuniary advantage (Theft Act 1968,s
...
20(2) or destroyed one (Theft Act
1968, s
...

The old deception offences all had the same core elements: D dishonestly obtained, induced or
procured something by deception
...
Allen; ‘Section 1(1) Fraud Act 2006 creates the general offence of fraud which is committed where
a person breached sections 2,3 or 4, which provide for different ways of committing the offence
...

The current law: The Fraud Act 2006
The current law: Fraud by false representation
Section 2 of the Fraud Act 2006 broadly covers the scope of the ‘old’ deception offences, but without
any requirement that a person should be deceived
...

R v Suleman (Olufunso) [2009] EWCA Crim 1138
The defendant’s father, M, and uncle, H, were in business together and the defendant worked in the
business
...


M gave evidence that on five of the occasions the defendant was present when the fire was
discovered
...
M and H subsequently moved the business to different premises (the Dunlop
building)
...
Count 2 related to a fire which took place at the original premises in January 2009
...
Count 3 related to a second fire at
the house, alleged to have been started deliberately
...
A fire lit in H’s car whilst parked in the driveway of the defendant’s home was the
subject of count 5
...
Counts 6, 7, 8, 9 and 10 related to fires started on the ground floor,
in the kitchens, garden and garden shed of the defendant’s home in March 2009
...
The prosecution case was that the jury
could safely conclude all the fires were the work of one arsonist, and further the defendant was the
only family member who had had the opportunity to set all of the fires
...
Count 1 related to nine hoax calls which were made to the
emergency services between October 2008 and February 2009
...
There was evidence that the habitual user of the Nokia 6030 was
the defendant
...
More than one such call claimed that the defendant was going to start a fire at a given
address
...
A search of the defendant’s
address in March 2009 revealed an empty box which had contained the Nokia 7210
...
The Nokia 6030 was also found
...
The defendant pleaded not guilty
...
Accordingly, the trial proceeded on an indictment containing 12 counts
...

Section 4 provides;
1) A person is in breach of this section if he a) occupies a position in which he is expected to safeguard, or not to act against, the financial
interests of another person,
b) dishonestly abuses that position, and
c) intends, by means of the abuse of that position i) to make a gain for himself or another, or
ii) to cause loss to another or to expose another to a risk of loss
...


R v Gale (Mark Diego) [2008] EWCA Crim 1344
(Cant find case summary)
R v Marshall (Collette Francess) [2009] EWCA Crim 2076
(Cant find case summary)
The current law: Obtaining services dishonestly
Section 11 of the Fraud Act 2006 provides;
1) A person is guilty of an offence under this section if he obtains services for himself or another a) by a dishonest act, and
b) in breach of subsection 2
...

The current law: Conspiracy to defraud
The Fraud Act 2006 did not abolish conspiracy to defraud, which remains a common law offence
...

Simester and R
...
The essence of the offence
is an agreement to practise a fraud on somebody
...
”
Section 3(3) of the Theft Act 1978 limits the scope of the offence
...
”
R v Brooks and Brooks [1983] Crim LR 188
A father and daughter and a man named Smith went to a restaurant
...

The father and Smith then absconded without paying
...
The daughter appealed contending she thought her father was paying and was thus not
dishonest
...
The words 'dishonestly makes off' should be given their
ordinary meaning and the jury should relate these words to the facts of any case
...
There is no requirement of leaving by stealth in order to amount to
being dishonest, the words 'makes off' simply means depart
...
He
tried to walk out of the restaurant but the manager told him the police had been called and told him
to stay
...

Held: He had not left the restaurant and therefore had not 'made off'
...
He telephoned the hotel and
said he was experiencing financial difficulties as he was awaiting payment from certain business
transactions
...

When he went to pick up his things the police were waiting for him and arrested him
...
The judge answered the question: "It says in count 2, 'knowing that
payment on the spot for goods supplied and services done was required or expected from him
...
There was no payment on the spot when he should have paid
...
"
Held: The jury convicted and the appellant appealed contending that an intention to temporarily
avoid payment was not within the ambit of the Act
...
Making off without
payment required an intention to permanently avoid payment
...
He argued his actions were not dishonest as the same sums were legitimately due to him for
consultancy fees
...
There are, sad to say,
infinite categories of dishonesty
...
Jurors in the past and, whilst we have criminal law in the
future, jurors in the future have to set the standards of honesty
...
I cannot really expand on this too much, but probably it is something
rather like getting something for nothing, sharp practice, manipulating systems and many other
matters which come to your mind
...

Held: His conviction was upheld
...
If it was not dishonest by those standards, that is
the end of the matter and the prosecution fails
...
"
Assessment of the 2006 reforms
A
...
Sullivan, Criminal Law: Theory and Doctrine (2007), 546: ‘Whatever reservations
may be made about the uncertainties and breadth of the new Act, it is a great relief to be rid of much
needless prolixity and complexity
...
Ormerod, The Fraud Act 2006 – Criminalising lying? [2007] Crim LR 193, 219: “The overall success
of the Act will turn on the quality and consistency of the prosecuting
...
and

guaranteeing appropriate use of these formidable new weapons in the prosecutors’ armoury will be
no easy feat
...
Human Right Act 1998, sections 2,3&4
...
Ormerod, Smith & Hogan’s Criminal Law [2011], 25; “many of the ECHR rights as specified in the
Human Rights Act 1998, Sch 1, are important in determining the appropriate scope and application of
offences
...

Article 2 – The Right to life
Does the right to life confer a right to die?
Pretty v United Kingdom [2002]
Diane Pretty was suffering from motor neurone disease and was paralysed from the neck down, had
little decipherable speech and was fed by a tube
...
It is
however a crime to assist another to commit suicide (section 2(1) of the Suicide Act 1961)
...
Because giving this assistance would
expose the husband to liability, the Director of Public Prosecutions was asked to agree not to
prosecute her husband
...

Held: In a unanimous judgment, the Court, composed of seven judges, has found Pretty's application
under articles 2, 3, 8, 9 and 14 of the European Convention on Human Rights admissible, but found no
violation of the Convention
...
As concerns Pretty's right to respect for private life under Article 8, the Court considered
that the interference in this case might be justified as “necessary in a democratic society” for the
protection of the rights of others
...

Criminal Justice and Immigration Act 2008, s
...

Giuliani and Gaggio v Italy [2012] 54 E
...
R
...
The application concerns the death of
the applicants' son and brother, Carlo Giuliani, while he was taking part in clashes during the G8
summit in Genoa from 19 to 21 July 2001
...
At
around 5 p
...
, under pressure from the demonstrators, a group of about 50 carabinieri withdrew on
foot, leaving two vehicles exposed
...
It was surrounded and violently attacked by a group of demonstrators, some of
whom were armed with iron bars, pickaxes, stones and other blunt implements
...
Carlo Giuliani, who was wearing a balaclava and playing an active part in the
attack, was fatally wounded by a bullet in his face
...
When the demonstrators had been dispersed, a
doctor arrived at the scene and pronounced Carlo Giuliani dead
...
Criminal proceedings were
instituted against the officer who had fired the shots and the driver of the vehicle for intentional
homicide
...
The forensic expert found that
the shot had been fired at a downward angle
...
The authors of the third report, submitted in June 2002, deplored the fact that it had
been impossible to examine the body, since the public prosecutor had in the meantime authorised
the family to have it cremated
...
On 5
May 2003 the investigating judge discontinued the proceedings
...
As to the
officer who had fired the fatal shot, the judge took the view that he had fired into the air without
intent to kill and that he had in any event acted in self-defence in response to the violent attack on
him and his colleagues
...
In addition, they argued that the failure to provide immediate assistance amounted
to a violation of Articles 2 and 3 (prohibition of inhuman treatment)
...
Lastly, they alleged that
the Italian Government had breached Article 38 of the Convention (examination of the case) by
omitting to provide information to the Court or by producing false information
...
(See case summary previously in notes
...
134
Article 4 – No one shall be held in slavery or servitude… No one shall be required to perform forced or
compulsory labour
Coroners and Justice Act 2009, s
...
”
Does this mean that presumptions of criminal liability are contrary to Article 6?
Lecture 19 - Slide 6



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