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PRINCIPLES OF CRIMINAL LIABILITY REVISION

Elements of a crime: Actus Reus + Mens Rea +The Absence of a Valid Defence
ACTUS REUS
The physical element of the defence: an act, a failure to act (an omission) or a ‘state
of aairs!" #or some crimes, the actus reus must also result in a conse$uence e"%"
for murder or for A&'"
Acts Res mst !e "olntar# ( 'ill ) &a*ter (automatism)
State of a$airs: +here D is con)icted e)en thou%h they did not act )oluntarily"
,arsonneur- .in/ar
OMISSIONS
Normal Rle 0 an omission cannot ma1e a person %uilty
Com%arison &it' ot'er le(al s#stems 0 %ood 2amaritan la+ e*ists in some
systems e"%" #rance"
E)ce%tion to t'e normal rle :
• An act of 3arliament can create liability for an omission e"%" failure to report a
road tra4c incident, failin% to pro)ide a specimen of breath
• #or common5la+ crimes an omission is only su4cient for the actus reus if
there is a duty to act"
a" A contractual Duty *Pitt&oo+,
b" A duty because of a relationship *-i!!ins . Proctor,
c" A duty +hich has been ta1en on )oluntarily *Stone .
/o!inson,
d" A duty throu%h one!s o4cial position */#t'am,
e" A duty +hich arises because the defendant has set in motion a
chain of e)ents *Miller0 Santana 1 Berm+e2,
Clari3cation nee+e+ in certain areas:
• /iscontinance of me+ical treatment ( if it is in the best interests of the
patient then it is 67T an omission +hich can form the actus reus of murder
(Air+ale N4S Trst " Blan+,
• Unla&fl Act Mansla('ter ( cannot be committed by an omission
because there must be an unla+ful A8T (Lo&e,
• -ross Ne(li(ence mansla('ter can be committed by an omission" 9f a
duty of care e*ists then the D can be liable if an omission or failure to act
causes death"
CAUSATION
5'ere a conse6ence mst !e %ro"e+ *RESULT RAT4ER T4AN CON/UCT
CRIMES,7 t'en t'e %rosection 'as to s'o& t'at t'e /8s con+ct &as:
• T'e factal case of t'e conse6ence
• T'e le(al case of t'e conse6ence
• T'ere &as no inter"enin( act &'ic' !ro9e t'e c'ain of casation
Factal
‘&ut for Test! ( (5'ite0 Pa(ett,
Le(al
8onduct +hich is more than a ‘minimal cause! of the conse$uence but not
necessarily a ‘substantial cause! (:imse# 1 More than a sli%ht or tri:in% lin1)
T'e T'in S9ll Rle 1 ta1in% the )ictim as you ;nd them (Blae,
Inter"enin( Acts
9n order to brea1 the chain of causation so that D is not responsible for the
conse$uence, the inter)enin% act must be su4ciently independent of the D!s
conduct and su4ciently serious"
• Act of t'e "ictim t'emsel"es 5 if D causes the )ictim to react in a
foreseeable +ay then any in<ury to the )ictim +ill be considered to ha)e been
caused by D" (Ro!erts7 Mar;oram,0 9f the )ictim acts in an unreasonable
and unforeseeable +ay then it may brea1 the chain of causation (5illiams,0
.here the +ounds caused by D +ere still an ‘operatin% and si%ni;cant cause!
the <ury are entitled to con)ict D, e)en if V had eecti)ely decided to commit
suicide by allo+in% the +ounds to continue to bleed */ear,<
• Act of a t'ir+ %art# = .here the D!s conduct causes a foreseeable action by
a third party, then the D is li1ely to be held to ha)e caused the conse$uence"
(Pa(ett,<
o Me+ical treatment: 3ro)ided that the in<ury caused by D +as still an
operating and substantial cause of death, D +ould be %uilty (Smit',0
D!s act need not be the sole or e)en the main cause of death, pro)ided
that his acts contributed si%ni;cantly to the death" ‘=nless the
ne%li%ent treatment +as so independent of D’s acts and in itself so
potent in causing death , that the <ury re%ard the contribution made by
the D as insi%ni;cant!" (C'es'ire,0 &ut +here treatment is ‘palpably
wrong’ it +ill brea1 the chain of causation *>or+an,<
o Life S%%ort Mac'ines 1 The s+itchin% o of a life5support machine
!# a +octor +hen it has been decided that the )ictim is brain dead,
does not brea1 the chain of causation *Malc'ere9,
• A natral !t n%re+icta!le e"ent 1 e"%" ambulance crash +hich 1ills a
)ictim +ho suered minor in<uries etc"
ACTIVITY: 'a)e a loo1 the follo+in% problem $uestions and assess +hether or not
D is the factual and le%al cause of the conse$uence"
>ohn, +ho has learnin% di4culties, is a member of his school?s under5@A mi*ed
hoc1ey team" The team?s captain, Ben, constantly criticises >ohn in front of the other
members of the team for bein% o)er+ei%ht and slo+" Durin% a particularly rou%h
%ame a%ainst a ri)al school, >ohn lost the ball to Batie, a %irl from the opposin%
team, +ho promptly scored" Ben ran o)er to >ohn, shoutin% furiously, Cyou fat slu%,
e)en a %irl can play better than youDE >ohn felt an%ry and humiliated and +hen Batie
ne*t mo)ed in to tac1le him, he lost all restraint and struc1 her sa)a%ely on the le%
+ith his stic1" After the %ame +as o)er, Batie noticed a s+ellin% in her le%, and
sho+ed it to her sports teacher, ,isa" ,isa said that it +as probably <ust a bad
bruise, but ad)ised Batie to rest the le% and see her doctor in the mornin%" Batie
i%nored this ad)ice and +ent out to party +here she danced until ten o?cloc1"
'o+e)er, that ni%ht Batie collapsed and +as ta1en to hospital, +here she died" 9t
+as later disco)ered that her death +as due to a blood clot caused by the blo+ to
her le%, and that her life could ha)e been sa)ed if she had recei)ed prompt medical
treatment"
8onsider +hether >ohn may be criminally liable for Batie?s death
8ausation 5 >ohn?s blo+ +as clearly the factual cause of Batie?s death, on the Cbut5
forC test in White, so the issue is +hether the conduct of either ,isa or Batie
amounts to a no)us actus inter)eniens" Batie?s conduct in i%norin% ,isa?s ad)ice
+ould seem to fall +ithin the principle of ta1in% one?s )ictim as you ;nd her: Blaue.
9f V failed to see1 medical treatment (Holland) or acts in a +ay +hich e*acerbates
the ris1 of death (Wall) this +ill not normally brea1 the chain of causation (Dear) 5
althou%h it may be rele)ant to sentence if D is con)icted of manslau%hter" ,isa is
sli%htly more problematic: she clearly has a duty of care to+ards Batie and it could
be ar%ued that she failed to dischar%e this by merely %i)in% and +ould not +arrant
ta1in% Batie to hospital" 8andidates may ar%ue that ,isa should ha)e administered
;rst aid, and dra+ analo%ies +ith cases in)ol)in% ne%li%ent medical treatment such
as Smith, ordan, !heshire or "dama#o (some may be a+are of $isa and Sri%asta%a
(FGGH), +here doctors held %uilty of %ross ne%li%ence manslau%hter for failure to
dia%nose and treat MR2A)" 'o+e)er, it seems )ery unli1ely that ,isa?s conduct
+ould be held to ha)e bro1en the chain of causation"
>une and Bitty +or1 as care assistants in a nursin% home" 7ne of the patients, Mary,
is )ery hea)y and un5cooperati)e" 7ne mornin% Mary stubbornly refused to %et into
her +heelchair" >une lost her temper and for a moment she did not care +hether she
hurt Mary or not" Althou%h it +as strictly a%ainst the nursin% home?s rules, she
%rasped Mary under the armpits and physically hauled her into the +heelchair" The
+heelchair toppled under Mary?s +ei%ht, crushin% Bitty a%ainst the +all" Mary be%an
to complain that her arm +as hurtin%" Bitty +as also in pain but she decided not to
tell anyone +hat had happened in case her friend, >une, %ot the sac1" ,ater that
day, the Matron noticed that Mary?s arm loo1ed s+ollen, so she dro)e Mary to the
hospital to ha)e it I5rayed" 9t turned out that Mary?s arm +as bro1en and the
hospital decided to 1eep her in for a fe+ days" Mean+hile, Bitty +as in a%ony but
did not dare to complain for fear of Matron ;ndin% out ho+ Mary had come by her
in<ury" That ni%ht, Bitty collapsed and died from internal bleedin%" Mary?s bro1en
arm healed +ell but +hile she +as in hospital she contracted MR2A and
subse$uently died from that infection"
8onsider +hether >une may be criminally liable for the deaths of Bitty and Mary" JFHK
8ausation issue ( candidates may dra+ analo%ies +ith cases in)ol)in% ne%li%ent
medical treatment such as Smith, ordan, !heshire or "dama#o (some may be
a+are of $isa and Sri%asta%e (FGGH), +here doctors held %uilty of %ross ne%li%ence
manslau%hter for failure to dia%nose and treat MR2A)" 'o+e)er, it could be ar%ued
that the ris1 of pic1in% up an infection +hile in hospital is a predictable conse$uence
of in<urin% someone and +ould not brea1 the chain of causation"
8harlie became )ery depressed after his %irlfriend Ruby, ended their relationship
and married Da)id" 'e +rote do/ens of letters to Ruby, be%%in% her to lea)e Da)id
and come bac1 to him" L)entually, Da)id +ent to see 8harlie at his :at, and told
him that this beha)iour +ould ha)e to stop" 8harlie +as o)ercome by a <ealous ra%e
and struc1 Da)id on the head +ith a coee pot" The blo+ fractured Da)id?s s1ull,
+hich +as abnormally thin" 8harlie immediately summoned an ambulance, and
Da)id +as ta1en to hospital" &y the time the ambulance arri)ed at the hospital,
Da)id?s heart had stopped beatin% and he +as no lon%er breathin%" Da)id +as
rushed to the intensi)e care unit and placed on a life5support system" The doctors
told Ruby that e)en if Da)id sur)i)ed he +ould be irre)ersibly brain5dama%ed" Ruby
+anted to let Da)id die +ith di%nity, so +hile the doctors +ere out of the room, she
disconnected the machines that +ere 1eepin% him ali)e"
Consi+er &'et'er C'arlie an+ R!# ma# !e criminall# lia!le for /a"i+?s
+eat'<
8ausation ( +hether Da)id?s death is le%ally attributable to the actions of 8harlie or
Ruby" This depends on +hether Da)id +as still ali)e +hen Ruby turned o the life
support system" =nder the con)entional criteria (no heartbeat, not breathin%) Da)id
+as dead +hen he reached hospital- ho+e)er, the courts ha)e sho+n +illin%ness to
accept the medical criterion of brain5stem death" 9n $alchere# and Steel, the 8A
upheld con)ictions for murder +here )ictims +ere on life5support machines and the
doctors s+itched o the machine after tests sho+ed that the )ictims +ere brain5
dead" The 8A reco%nised that brain death is the accepted medical criterion of death,
but did not actually decide that this is the le%al de;nition of death" 9n "irdale &HS
'rust %
Bland, there are dicta in the 'ouse of ,ords to the eect that brain5stem death is
the le%al test of death" 8harlie ( if 8harlie!s actions +ere held to be the le%al cause
of death, he may be %uilty
of murder or manslau%hter dependin% on his state of mind +hen he struc1 Da)id"
MENS REA
INTENTION
‘a decision to brin% about, in so far as it lies +ithin the accused!s po+er, the
prohibited conse$uence, no matter +hether the accused desired that conse$uence
of his act or not! (Mo'an,
M7T9VL 92 9RRL,LVA6T 96 DL89D96M .'LT'LR D 'AD 96TL6T976
/IRECT INTENTION
The defendant set out to achie)e a particular result or conse$uence" They foresa+ a
particular result as a certainty and +anted to brin% it about" De(ned in Moloney as:
‘a true desire to bring about the conse)uences’.
IN/IRECT@OBLIAUE INTENTION *foresi('t of conse6ence,
.here D intends one thin% but the actual conse$uence +hich occurs is another
thin%" 'ere it is a $uestion of foresi%ht of conse$uence" 9f, in achie)in% the other
thin%, D foresa+ that he +ould also cause the actual conse$uence, then he may be
found %uilty"
Case La&:
• Molone#: ',!s con;rmed that e)en +here it +as not someone!s desire,
purpose and so on, the <ury is entitled to infer that he still intended a result
+here D 1no+s that the result is a natural conse)uence of his actions * D
realised this.
• 4ancoc9 . S'an9lan+: 9n such cases the probability of death or in<ury
arisin% from the act done is important, because +if the li#elihood that death
or serious in,ury will result is high, the probability of that result may be seen
as o%erwhelming e%idence of the e-istence of the intent to #ill or in,ure.+
• Ne+ric9: ‘The <ury should be directed that they are not entitled to INFER the
necessary intention unless they feel sure that death or serious bodily harm
+as a )irtual certainty (barrin% some unforeseen inter)ention) as a result of
D!s actions and that the D appreciated that such +as the case" The decision
is one for the <ury to be reached on a consideration of all of the e)idence"E
• 5oolin: ‘The <ury should be directed that they are not entitled to FIND the
necessary intention unless they feel sure that death or serious bodily harm
+as a )irtual certainty (barrin% some unforeseen inter)ention) as a result of
D!s actions and that the D appreciated that such +as the case"
• Re A: The court thou%ht that .oollin made foresi%ht of conse$uence part of
the substantial la+ rather than e)idential la+ by substitutin% the +ord 96#LR
+ith #96D i"e" that foresi%ht of conse$uence 92 intention not e)idence of
intention"
• Mat'e&s an+ Alle#ne: 8on;rmed that foresi%ht of a conse$uence, e)en of
a )irtually certain one, is &.' intent, but simply e)idence from +hich
intention may be found" Althou%h the 8A said there +as little to choose
bet+een a rule of e)idence and a rule of substanti)e la+ lea)in% the meanin%
of intention e)er more unclear"
• REFORM: =nder our recommendations, ;rst de%ree murder +ould
encompass: (@) intentional 1illin%- or (F) 1illin% throu%h an intention to do
serious in<ury +ith an a+areness of a serious ris1 of causin% death"
• The ,a+ 8ommission in common +ith a 'ouse of ,ords 2elect 8ommittee
recommends that foresi%ht of a )irtual certainty should amount to intention"
This +ould mean that foresi%ht +ould a%ain be part of the substanti)e la+,
not merely part of the e)idence" At present, a person +ho 1ills foreseein%
death or %rie)ous bodily harm as )irtually certain may be con)icted of
murder- under the reformed scheme such a person +ould be con)icted of
murder"
REC:LESSNESS:
8o)ers the situation +here a defendant ta1es an un<usti;able ris1" As +ith
intention, it is a subjective test, and the defendant must reco%nise the ris1 that he
or she is ta1in%"
 Rec1lessness +as de;ned in the case of R " Cunningham" Maliciously
means that the D must either intend the conse$uence or realise that there
was a risk of the consequence haening an! !eci!e to take that
risk"
 3re)iously t+o dierent types of rec1lessness e*isted 5 sub<ecti)e and
ob<ecti)e (Cal+&ell Rec9lessness), but the ob<ecti)e form is no+ e*tinct
follo+in% the case of R " # an! $nother *BCCD,<
-ROSS NE-LI-ENCE: .here D o+es a duty of care, breaches that duty (by an act
or omission) and creates a ris1 of death" (Misra . Anot'er BCCE 1 !o+il# in;r#
or in;r# to 'ealt' not eno(',The breach of duty is so %ross that it deser)es to
be describes as ‘criminal!" *R " A+oma9o *FGGH,,<
TRANSFERRE/ MALICE : D can be %uilty if he intended to commit a similar crime
but a%ainst a dierent )ictim" (Latimer,< &ut +here the mens rea is completely
dierent type of oence then D may not be %uilty (Pem!ilton,
-ENERAL MALICE: D may not ha)e a speci;c )ictim in mind e"%" terrorism" 9n this
case the D!s mens rea is held to apply to the actual )ictim"
COINCI/ENCE OF ACTUS REUS AN/ MENS REA: &oth actus reus and mens rea
must be present for an oence to ta1e place" This can happen +here the actus reus
and mens rea combine in a series of acts (T'a!o Meli " R0 C'rc',< As lon% as
they coincide at some point (say +here the actus reus is a continuin% act) then D
+ill be %uilty (Fa(an,<
ACTUS REUS AN/ MENS REA OF OFFENCES RELEVANT TO T4E EIAM
MUR/ER:
AR: D 1ills a reasonable creature in bein%, under the Nueens peace, and the 1illin%
is unla+ful
MR: L*press malice aforethou%ht ( +hich is the 96TL6T976 to 1ill or implied malice
aforethou%ht ( +hich is the 96TL6T976 to cause %rie)ous bodily harm"
BUR/EN@STAN/AR/ OF PROOF: The prosecution must pro)e beyond reasonable
doubt"
VOLUNTARY MANSLAU-4TER:
2ame AR O MR as Murder, but the 1illin% occurs +hen the D is under diminished
responsibility, loss of control or suicide pact" 9n other +ords the D 1ills a reasonable
creature in bein%, under the Nueens peace, and the 1illin% is unla+ful" They intend
to 1ill or cause M&', but at their state of mind at the time of the 1illin% means that a
partial defence e*ists"
BUR/EN@STAN/AR/ OF PROOF: Defendant has to pro)e on a balance of
probabilities"
INVOLUNTARY MANSLAU-4TER:
UNLA5FUL ACT MANSLAU-4TER:
AR: D does an unla+ful act (Lam!0 Lo&e, +hich is dan%erous on an ob<ecti)e test
(C'rc'0 Lar9in0 Mitc'ell,and the act causes death (/al!#7 :enne+#7 /ias7
Ro(ers,
MR: the re$uired mens rea for the unla+ful act, e"%" the mens rea for A&', for
&ur%lary, Robbery (Ne&!r# . >ones, etc"
BUR/EN@STAN/AR/ OF PROOF:
3rosecution must pro)e beyond reasonable doubt"
-ROSS NE-LI-ANCE MANSLAU-4TER
AR: Act or omission in breach of an e*istin% duty of care +hich creates a ris1 of
death and results in death"
MR: 8onduct so bad in all the circumstances as to amount to a criminal act or
omission" 8onduct beyond a matter of mere compensation, sho+in% such disre%ard
for life and safety of others as to amount to a crime"
BUR/EN@STAN/AR/ OF PROOF:
3rosecution must pro)e beyond reasonable doubt"
REC:LESS MANSLAU-4TER
AR: An act or omission +hich results in death"
MR: Rec1lessness ( / realises that there was a risk of the consequence
haening an! !eci!e to take that risk"
BUR/EN@STAN/AR/ OF PROOF:
3rosecution must pro)e beyond reasonable doubt"
ASSAULT . BATTERY:
AR: causin% V to fear immediate unla+ful force (assault) or application of unla+ful
)iolence e)en the sli%htest touchin% (battery)
MR: 9ntention of, or sub<ecti)e rec1lessness
BUR/EN@STAN/AR/ OF PROOF:
3rosecution must pro)e beyond reasonable doubt"
AB4:
AR: Assault i"e" an assault or battery +ith the conse$uence of A&'
MR: 9ntention or sub<ecti)e rec1lessness
BUR/EN@STAN/AR/ OF PROOF:
3rosecution must pro)e beyond reasonable doubt"
S<BC -B4:
AR: D +ounds or 96#,98T2 %rie)ous bodily harm +ith or +ithout a +eapon or
instrument
MR: 9ntention or sub<ecti)e rec1lessness
BUR/EN@STAN/AR/ OF PROOF:
3rosecution must pro)e beyond reasonable doubt"
S<FJ -B4:
AR: D +ounds or 8A=2L2 %rie)ous bodily harm
MR: 9ntent to do some %rie)ous bodily harm or to resist or pre)ent the la+ful
apprehension or detainer of any person
BUR/EN@STAN/AR/ OF PROOF:
3rosecution must pro)e beyond reasonable doubt"
ACTIVITIES
Visit each of the problem $uestions and assess +hether or not D has demonstrated
the mens rea for the rele)ant oence(s)"
>ohn, +ho has learnin% di4culties, is a member of his school?s under5@A mi*ed
hoc1ey team" The team?s captain, Ben, constantly criticises >ohn in front of the other
members of the team for bein% o)er+ei%ht and slo+" Durin% a particularly rou%h
%ame a%ainst a ri)al school, >ohn lost the ball to Batie, a %irl from the opposin%
team, +ho promptly scored" Ben ran o)er to >ohn, shoutin% furiously, Cyou fat slu%,
e)en a %irl can play better than youDE >ohn felt an%ry and humiliated and +hen Batie
ne*t mo)ed in to tac1le him, he lost all restraint and struc1 her sa)a%ely on the le%
+ith his stic1" After the %ame +as o)er, Batie noticed a s+ellin% in her le%, and
sho+ed it to her sports teacher, ,isa" ,isa said that it +as probably <ust a bad
bruise, but ad)ised Batie to rest the le% and see her doctor in the mornin%" Batie
i%nored this ad)ice and +ent out to party +here she danced until ten o?cloc1"
'o+e)er, that ni%ht Batie collapsed and +as ta1en to hospital, +here she died" 9t
+as later disco)ered that her death +as due to a blood clot caused by the blo+ to
her le%, and that her life could ha)e been sa)ed if she had recei)ed prompt medical
treatment"
Mens rea 5 for murder, malice aforethou%ht 5 intention to 1ill or cause
%rie)ous bodily harm: $oloney/ 1no+led%e that one?s action is )irtually
certain to cause death or %rie)ous body harm: Woollin.
>une and Bitty +or1 as care assistants in a nursin% home" 7ne of the patients, Mary,
is )ery hea)y and un5cooperati)e" 7ne mornin% Mary stubbornly refused to %et into
her +heelchair" >une lost her temper and for a moment she did not care +hether she
hurt Mary or not" Althou%h it +as strictly a%ainst the nursin% home?s rules, she
%rasped Mary under the armpits and physically hauled her into the +heelchair" The
+heelchair toppled under Mary?s +ei%ht, crushin% Bitty a%ainst the +all" Mary be%an
to complain that her arm +as hurtin%" Bitty +as also in pain but she decided not to
tell anyone +hat had happened in case her friend, >une, %ot the sac1" ,ater that
day, the Matron noticed that Mary?s arm loo1ed s+ollen, so she dro)e Mary to the
hospital to ha)e it I5rayed" 9t turned out that Mary?s arm +as bro1en and the
hospital decided to 1eep her in for a fe+ days" Mean+hile, Bitty +as in a%ony but
did not dare to complain for fear of Matron ;ndin% out ho+ Mary had come by her
in<ury" That ni%ht, Bitty collapsed and died from internal bleedin%" Mary?s bro1en
arm healed +ell but +hile she +as in hospital she contracted MR2A and
subse$uently died from that infection"
state of mind ( mens rea of murder 0 malice aforethou%ht ( an intention to 1ill
or cause %rie)ous bodily harm: $aloney" This re$uires 1no+led%e that one?s action
is )irtually certain to cause death or %rie)ous bodily harm: Woolin" Rec1lessness +ill
not su4ce" >une?s state of mind loo1s li1e rec1lessness rather than intention to
cause M&', so +ould not amount to mens rea of murder"
8harlie became )ery depressed after his %irlfriend Ruby, ended their relationship
and married Da)id" 'e +rote do/ens of letters to Ruby, be%%in% her to lea)e Da)id
and come bac1 to him" L)entually, Da)id +ent to see 8harlie at his :at, and told
him that this beha)iour +ould ha)e to stop" 8harlie +as o)ercome by a <ealous ra%e
and struc1 Da)id on the head +ith a coee pot" The blo+ fractured Da)id?s s1ull,
+hich +as abnormally thin" 8harlie immediately summoned an ambulance, and
Da)id +as ta1en to hospital" &y the time the ambulance arri)ed at the hospital,
Da)id?s heart had stopped beatin% and he +as no lon%er breathin%" Da)id +as
rushed to the intensi)e care unit and placed on a life5support system" The doctors
told Ruby that e)en if Da)id sur)i)ed he +ould be irre)ersibly brain5dama%ed" Ruby
+anted to let Da)id die +ith di%nity, so +hile the doctors +ere out of the room, she
disconnected the machines that +ere 1eepin% him ali)e"
8harlie ( if 8harlie?s actions +ere held to be the le%al cause of death, he may
be %uilty of murder or manslau%hter dependin% on his state of mind +hen he
struc1 Da)id"
Murder ( intention to 1ill or cause %rie)ous bodily harm" 3ossible defences (
diminished responsibility on the basis that 8harlie suers from depression"
3ro)ocation ( %ra)ity of the pro)ocation ( any characteristic +hich aects the
%ra)ity of the pro)ocation to D can be ta1en into account ( $orhall" The
de%ree of self control to be e*pected from an ordinary person ( $organ
Smith, A ( M for >ersey ) 'olley ( 38 restored )ie+ of ma<ority in 0uc 'hiet
'huan ( the 8A in ames/ 1arimi held that the 38 in Holley had o)erruled the
', in Mor%an 2mith and it +as bound tofollo+ Holley"
9n)oluntary manslau%hter ( if 8harlie lac1ed intention to 1ill or cause %bh, he
may be con)icted of manslau%hter on the basis of an unla+ful and
dan%erousact ( 2ran#lin" &ewbury ( mens rea is simply the intention to do
the unla+ful act (Scarlett, .wino"
9ntention
Rec1lessness
Mross 6e%li%ence
Mens
Rea
/irect:
The defendant desires a
conse$uence and it is his
purpose to achie)e it"
In+irect@o!li6e:
A result is indirectly intended
e)en thou%h not desired, +hen:
(@) That result is a )irtually
certain conse$uence, and
(F) The actor 1no+s that it is
a )irtually certain
conse$uence (R )
'ancoc1 O 2han1land
(@PQA)- R ) 6edric1
(@PQA)- R ) .oollin (@PPQ)
Varies accordin% to the particular
circumstances" The ,a+
8ommission su%%ested a %eneral
de;nition as follo+s:
A person is rec1less if:
(a) Bno+in% that there is a
ris1 that an e)ent may
arise from his conduct or
that a circumstance may
e*ist, he ta1es that ris1,
and
(b) 9t is unreasonable for him
to ta1e it ha)in% re%ard to
the de%ree and nature of
the ris1 +hich he 1no+s to
Defendant:
• 7+es a duty of care
• &reaches that duty and
creates a ris1 of death"
• The breach of duty is so
%ross that it deser)es to
be describes as ‘criminal!"
(R ) Adoma1o (@PPH))"
STRICT LIABILITY REVISION NOTES
/e3nition . contrast &it' a!solte lia!ilit#
• 2trict liability oences do not need mens rea to be established for D to be %uilty"
• Actus Reus ()oluntary) must be pro)ed +hich is ho+ 2, oences dier from
absolute liability ones +here the actus reus may be committed in)oluntarily
(,arsonneurR.in/ar)"
• 9t is a departure from the fundamental principle that a )oluntary act, a %uilty mind
and absence of a )alid defence must coincide for D to be %uilty of an oence"
• This departure may be seen as un<ust ( i"e" that D may be morally innocent and
ha)e ta1en e)ery possible step to ensure that they did not brea1 the la+ but +ill still
be liable (8allo+ ) Tillstone)"
• Mens rea may be re$uired for part of the actus reus of an oence but not for others"
(3rince (@QSH) and 'ibbert (@QAP) O & ) D33 as case e*amples)
• D may be con)icted e)en if his act inad)ertently caused a prohibited conse$uence
and D is totally blameless"
• Most 2, oences are statutory and re%ulatory in nature e"% health and safety la+s
and are put in place to protect the public"
• 2ome statutes e*plicitly state that the oence is one of strict liability (e"%" s"H,AOS
2e*ual 7ences Act FGGT ( Rape, assault by penetration, se*ual assault of a child
under @T)" &ut others are silent on the matter and this is +here statutory
interpretation comes in"
• 2tatutory lan%ua%e, such as Umens rea +ordsE li1e ‘maliciously! ‘1no+in%ly!
demonstrate that the oence is 67T one of 2,, as mens rea is re$uired" 2ometimes
mens rea +ords are used in some sections but not others and so it may be
construed as meanin% that mens rea is not re$uired to ma1e D %uilty of an oence
under those sections" 9t may be the case that if these +ords are not included then
3arliament intended it to be a strict liability oence"
• 8ase la+ sho+s inconsistency of statutory interpretation thou%h"
CRITICISMS >USTIFICATION
9s it LVLR morally <ust to con)ict a
person +ho has no mens reaV 8allo+ )
Tillstone (@PGG) O 'arro+ ,&8 ) 2hah
and 2hah (@PPP) are e*amples of the
fact that there is no due dili%ence
defence" 9n other +ords +here D does all
they can to a)oid brea1in% the la+ they
are still %uilty because their act
inad)ertently causes harm despite their
eorts"
Althou%h 3arliament sometimes includes
a defence for such people +ithin a piece
of le%islation, there is a lac1 of
consistency"
The follo+in% cases sho+ that the
purpose of 2, oences is to ma1e a
‘safer, cleaner, and more e4cient
society"! 8allo+ ) Tillstone,
3harmaceutical 2M& ) 2tor1+ain (@PQA)
Alphacell ) .ood+ard (@PSF)- >ames O
son ) 2mee (@PHW) 'arro+ ,&8 ) 2hah
and 2hah (@PPP) )" .ithout 2, oences
companies may be permitted to pollute
ri)ers by disposin% of controlled
substances irresponsibly, they could
shir1 responsibility for pro)idin% a safe
place of +or1 for employees and people
could defend a case of drin1 dri)in% if it
+ere not a 2, oence"
There is no e)idence to su%%est that
companies +ill raise standards" 9f they
+ill be con)icted should a mista1e be
made despite ha)in% ta1en all
reasonable steps, +ill they bother ta1in%
those stepsV
2, oences re%ulate beha)iour and help
in the smooth runnin% of society ma1in%
it clear +hat is acceptable and +hat is
unacceptable beha)iour"
2ometimes a defence of mista1e e*ists,
but this defence is applied inconsistently
5 8undy ) ,e coc$ (@QQW) O 2herras ) De
Rut/en (@QPH)"
3rinciples in Mammon (@PQW) 5 This sets
out the procedure for decidin% +hether
an oence is one of strict liability" 9t can
be ar%ued that because of this
procedure, 2, oences can be <usti;ed"
@" There is a presumption of mens
rea" 2+eet ) 3arsley- & ) D33
(FGGG) - R ) B" Bumar (FGGW),
2(FGGH)
F" This presumption is particularly
stron% +here the oence is ‘truly
criminal! rather than a $uasi crime
because it may in)ol)e sti%ma
attached to D or a term of
imprisonment" Aasi ( (re%ulatory
oences) ( 8allo+ ) Tillstone
(@PGG)- 8undy ) ,e 8o$ (@QQW)-
Mammon (@PQW), 'arro+ ,&8 )
2hah and 2hah (@PPP), Alphacell )
.ood+ard (@PSF)" Trl# Criminal
5 2+eet ) 3arsley (@PSG)- & ) D33
(FGGG)- R ) B (FGG@)- R ) &,ABL
(@PPS)
D< T'e %resm%tion can !e
+is%lace+ onl# if t'is is clearl#
9mpact on public respect for the criminal
la+" 9f the morally innocent are
con)icted, the public may lose respect
for the criminal <ustice system"
Althou%h many 2, oences are summary
in nature (i"e" punishable by a ;ne) some
are not (Mammon) and may result in
imprisonment for a person +ho is
morally innocent" 9n Mammon the
penalty +as up to T years imprisonment"
or !# necessar# im%lication
t'e e$ect of t'e statte
W" The only situation in +hich the
presumption can be displaced is
+here the statute is concerned
+ith an issue of social concern-
public safety is an issue)" (
discussion of the de%ree of social
dan%er and rebuttin% the
presumption" S&eet " Parsle#
*FGKC,Lmpress 8ar 8ompany )
6ational Ri)ers Authority (@PPQ)
Bla9e *FGGK,&romley ,8 ) 8
(FGGA)
H" L)en +here the statute is
concerned +ith such an issue, the
presumption stands unless it can
be sho+n that ma1in% it a strict
liability oence +ill lead to the
promotion of standards and la+
enforcement)Reynolds ) M' Austin
and 2ons ,td - Lim C'in Ai9
*FGLD,0 8ity of 2aulte 2te Marie
(@PSQ)- 2medleys ,td ) &reed
(@PSW)
SU--ESTIONS FOR REFORM
3arliamentary %uidance on statutory interpretation or ma1e it e*plicitly clear +here
an oence is one of 2,"
8onsistent application of the due dili%ence defence ( i"e" if D has ta1en all possible
steps to a)oid the oence they +ill be innocent"
ACTIVITIES
T'LRL ARL MA6X 8A2L2 T7 D928=22 96 A6 L22AX 76 2TR98T ,9A&9,9TXDDD
8reate a case la+ %lossary list of 2, cases" 9nclude the follo+in%"
• 8ase name
• 2ummary of facts
• .hat ar%ument (<usti;cation or criticism) does the case supportV
=se the re)ision notes and your case la+ %lossary to ans+er the t+o essay
$uestions belo+"
F" L*amine critically the criteria +hich the courts ha)e de)eloped for
determinin% +hether an oence is one of strict liability"
T" 2trict ,iability oences contribute to a safer, cleaner and more e4cient
society and can be <usti;ed on these %rounds" 8ritically discuss"
9f a defendant fully intends to commit a crime but for some reason fails to complete the
actus reus, the la+ on attempts is a)ailable to ensure that he or she can still be prosecuted"
(e"%" .hite @P@G)"
The la+ on attempts is contained in s"@(@) of the 8riminal Attempts Act @PQ@
MIf &it' intent to commit an o$ence to &'ic' t'is section a%%lies7 a %erson +oes
an act &'ic' is more t'an merel# %re%arator# to t'e commission of t'e o$ence7
'e is (ilt# of attem%tin( to commit t'e o$ence8
The defendant must perform an act that is %more than merely rearatory& to the
commission of the oence"
8riminal Attempts Act D7L2 67T de;ne the phrase and it is a matter for the <ury to decide in
each case
9t is up to the <ury to decide +hether the defendant has pro%ressed to somethin% beyond the
preparation sta%e" This is not an easy decision to ma1e"
Attem%te+ ro!!er#N 5'enN
@" D decides to rob a ban1"
F" 'e buys a shot%un
T" 'e con)erts it to a sa+n o shot%un
W" 'e dri)es around the area loo1in% for escape routes
H" 'e steals a car and dri)es to the ban1
A" 'e stands on the pa)ement outside the ban1
S" he ban1 carryin% the shot%un in his ba%
Q" 'e +al1s into the ban1
3re)iously, (3re the @PQ@ Act) the la+ on attempts +as co)ered by the common la+, and a
series of tests +as de)eloped by the courts to decide +hether the defendant +as %uilty or
not" As the @PQ@ Act +as a codifyin% Act, past cases can be considered +here any pro)ision
of the Act is doubtful"
T'e tests:
T'e %ro)imit# test: ‘acts remotely leadin% to+ards the commission of the oence are not
to be considered as attempts to commit it, !t acts imme+iatel# connecte+ &it' it are8<
2ee Ro!inson *FGFH,
The ,a+ commission supported this test"
• T'e r!icon test (2tonehouse (@PSQ): Adopted in .iddo+son (@PQA) soon after the
enactment of the ne+ le%islation"
• 'as D ‘crosse+ t'e R!icon an+ !rnt 'is !oats: t'at is7 (one !e#on+ t'e
O%oint of no retrn8<
Cam%!ell FGGC ( all t'e acts
+ere merely preparatory until he
+al1ed into the ban1" 9n this case
D +ho had an imitation %un,
sun%lasses and a threatenin% note
in his poc1et +as still in the street
outside the post o4ce +hen
arrested" 'is acts +ere merely
preparatory"
T'e series of Acts test: (2ir >ames 2tephen 8@Pth >ud%e)
'as the / alrea+# com%lete+ a series of acts t'at &ol+ 'a"e !een sccessfl if
not interr%te+N
Referred to in &oyle and &oyle (@PQA) .here D!s +ere found standin% by a door to +hich the
loc1 and one hin%e +ere bro1en"
3ro%ressDD After much confusion""""
2ince the case of 3 ) 4ullefer (@PQS), the courts ha)e stressed that the +ords of the
Criminal Attem%ts Act FGJF are to be follo+ed, rather than the tests laid do+n in pre5
statute cases"
-llefer: D <umped onto a race trac1 in order to ha)e the race declared )oid and so enable
him to reclaim money he had bet on the race" 'is con)iction for attemptin% to steal +as
$uashed because he had se)eral other acts to do before the theft"
The 8 of A held that ‘more than merely preparatory! means the D must ha)e %one beyond
purely preparatory acts and be Oem!ar9e+ on t'e crime %ro%er8< In t'is case 'e 'a+
not<
In >ones *FGGC, is +as decided that the Onatral meanin(8 of t'e &or+s s'ol+ !e
se+ an+ ol+ case la& s'ol+ not !e trne+ to<
• D disco)ers that his %irlfriend is seein% another man (#)" D decides to do somethin%
about it" 'e decides to 1ill this lo)e ri)al"
&ut at +hich point does he become liable for attempted murderV
• 'e buys a shot%un
• 'e shortens the barrel
• 'e loads it
• 'e lea)es his house, +earin% o)eralls and a crash helmet +ith the )isor do+n,
carryin% a ba% containin% the loaded %un"
• 'e approaches #!s car as # drops his dau%hter o at school
• 'e opens the car door and %ets in
• 'e says he +ants to sort thin%s out
• 'e ta1es the shot%un from the ba%
• 'e points it at #, and says, ‘you!re not %oin% to li1e this!"
• # %rabs the %un, thro+s it out of the +indo+ and escapes"
-e++es: D +as found in the boy!s la)atory bloc1 of a school, in possession of a lar%e
1itchen 1nife, some rope and mas1in% tape" 'e had no ri%hts to be in the school" 'e had not
contacted any of the pupils" 'is con)iction for attempted imprisonment +as $uashed" ('e
had not actually tried to commit the full oence in $uestion")
Ta#lor L> said that all acts until he ot
into the car and pointed the loaded
%un +ere merely preparatory, once he
had done that, there +as su4cient
e)idence of an attempt to lea)e to the
<ury"
The 8A put for+ard a t+o sta%e test:
@" 'ad the accused mo)ed from plannin% or preparation to e*ecution or
implementationV
F" 'ad the accused done an act sho+in% that he +as actually tryin% to commit the full
oence or had he %ot only as far as %ettin% ready, or puttin% himself in a position, or
e$uippin% himself, to do soV
R " Tosti *FGGK,
D and an accomplice had o*yacetylene e$uipment, (fuel to aid cuttin%) +hich they hid in a
hed%e neat to a barn that they planned to brea1 into" They +al1ed up to the barn door and
e*amined the loc1 on it" .hen they realised they +ere bein% +atched, they ran a+ay" 7n
appeal their con)ictions for attempted bur%lary +ere upheld, as the 8 of A said that there
+as e)idence that sho+ed that they had %one beyond the preparatory sta%es and had
actall# trie+ to commit t'e o$ence<
Bo&les " Bo&les *BCCE,
8A $uashed D!s con)iction of attemptin% to ‘ma1e a false instrument!" 'e has been
con)icted of attemptin% to for%e a +ill in the name of his nei%hbour +ho +as an elderly
+ido+ +ith dementia" After his arrest an unsi%ned +ill +as found +hich detailed her house
bein% left to D" 2he has already created a +ill lea)in% her house to charity"
The con)iction +as $uashed because there +as no e)idence of D ha)in% ta1en any steps to
ha)e it e*ecuted" The act of +ritin% the +ill +as merely preparatory"
Mens Rea
D must normally ha)e the same intention as +ould be re$uired for the fll o$ence< 9f the
prosecution cannot pro)e that D has that intention then D is not %uilty of the attempt"
9n Mo'an *FGKH) intent +as de;ned as the +ecision to !ein( a!ot t'e commission of
an o$ence no matter +hether D desired the conse$uence of his act or not"
Easom *FGKF,
D pic1ed up a +oman!s handba% in a cinema, rumma%ed throu%h it, then put it bac1 on the
:oor +ithout remo)in% anythin% from it" 'is con)iction for theft of the ba% and its contents
+as $uashed" The 8 of A also refused to substitute a con)iction for attempted theft of the
ba% and speci;c contents (includin% a purse and a pen), as t'ere &as no e"i+ence t'an
/ inten+e+ to steal t'em<
There +as no e)idence of an intention to permanently depri)e (the mens rea of theft)"
2imilarly in 'usseyn (@PSS) D and another man had been obser)ed loiterin% near the bac1 of
a )an"
As police approached they ran o" D +as con)icted of attemptin% to steal a $uantity of sub5
a$a e$uipment that +as in the )an" The 8A $uashed the con)iction
A-8s Ref *Nos F . B of FGKG,
8 of A decided that if D had a con+itional intent (i"e" D intented stealin% if there +as
anythin% +orth stealin%, D could be char%ed +ith an attempt to steal some or all of the
contents"
Rec9lessness is not normally su4cient mens rea for an attempt" This is so e)en +here
rec1lessness +ould su4ce for the completed oence"
Millar+ an+ Vernon *FGJK,
Ds repeatedly pushed a%ainst a +ooden fence on a stand at a football %round" The
prosecution alle%ed that they +ere tryin% to brea1 it and they +ere con)icted of attempted
criminal dama%e" The 8 of A $uashed their con)ictions"
'o+e)er rec1lessness is rele)ant in some circumstances
A=-8s Ref *No D of FGGB, FGGE
D thre+ a petrol bomb to+ards a car containin% four men" The bomb missed the car and
smashed harmlessly a%ainst a +all" D +as char%ed +ith attemptin% to commit arson +ith
intent to endan%er life"
8 of A held that it +as necessary to pro)e that D intended to dama%e property, but it +as
only necessary to pro)e that he +as rec1less as to +hether life +ould be endan%ered"
9n relation to attempted rape althou%h the la+ commission too1 the )ie+ that D +ould need
intention to ha)e non5consensual intercourse and that D +ould need to 1no+ that the
intercourse +as non5consensual, the courts ha)e allo+ed rec1lessness to stand"
:'an FGGC D alon% +ith T others, +as con)icted of the attempted rape of a @A year old %irl"
All W men tried to ha)e se* +ith her unsuccessfully,
Their con)ictions +ere upheld despite the trial <ud%es direction that, on a char%e of
attempted rape, it +as only necessary to pro)e that they intended to ha)e se*, 1no+in% that
the %irl +as not consentin%, or not carin% +hether she consented or not"
2ection @(F) of the Criminal Attem%ts Act FGJF states:
• 5" person may be guilty of attempting to commit an o6ence to which this section
applies even though the facts are such that the commission of the o'ence is
imossible
• 3hysically 9mpossible: L"%" D attempts to pic1 V!s poc1et, +hich, un1no+n to D, is in
fact empty- or D attempts to murder V, +ho, un1no+n to him, died that mornin%"
• ,e%ally 9mpossible: e"%" D attempts to handle %oods, belie)in% them to be stolen,
+hen in fact they are not stolen"
Anderton ) Ryan (@PQH)
D bou%ht a )ideo recorder that she belie)ed to be stolen" After confessin% this to the police,
they found no e)idence to sho+ that the e$uipment had been stolen but the D +as
nonetheless char%ed +ith attemptin% to handle stolen %oods" 2he +as con)icted, but on
appeal, the ' of , $uashed her con)iction, despite the +ordin% of s" @(F) of the 8AA @PQ@
+hich clearly made her %uilty"
,ess than a year later, the ' of , o)erruled the decision in Anderton (usin% the 3ractice
2tatement) in R " S'i"%ri *FGJL,<
Do you thin1 it is fair that someone can be con)icted based solely on intention rather than
actually doin% anythin% +ron%V
P!lic %rotection " onl# %nis'in( t'ose &'o +eser"e to !e %nis'e+N
9f con)iction of a crime is impossible because there is no such oence, the D cannot be
%uilty of attemptin% it"
R " Taafe *FGJE, :
D!s lu%%a%e +as searched by customs on arri)al into he =B and a number of pac1a%es +ere
found" 'e +as as1ed +hat they contained and he said money" 'e thou%ht that he +as
committin% a crime by importin% currency but there is no such crime so D could not be
%uilty of attemptin% it" 9t is irrele)ant that he thou%ht he +as committin% a crime"
E"alation
Sentence s< E CAA FGJF 1 same ma) sentence as com%lete+ crime<
2ome people ar%ue that the person con)icted of an attempted oence should not face the
same ma*imum penalty as someone +ho has actually committed the full oence, since he
or she is not as blame+orthy"
7thers ( +ho support the current system) ar%ue that often a person +ill only fail because he
or she is cau%ht before committin% the full oence or because somethin% beyond his or her
control occurs to pre)ent him or her" They claim that if the defendant intended to commit
the crime, he or she is as blame+orthy as the D +ho actually committed it and should
therefore face the same sentence" 3rotection of society"
No o%%ortnit# to &it'+ra&
7nce the defendant has performed an act that is more than merely preparatory, there is no
opportunity or incenti)e for him or her to +ithdra+, since he or she +ill be liable for the
attempted oence" As this carries the same ma*imum penalty as the full oence, he or she
mi%ht as +ell continue, since there is nothin% to be %ained by +ithdra+al"
/eterminin( &'en an act is Omore t'an merel# %re%arator#8
As statute %i)es no de;nition of +hat is meant by the phrase ‘more than merely
preparatory!, it is left to <uries and appeal courts to decide" This creates uncertainty and can
allo+ D +ho are clearly a dan%er to a)oid liability" MeddesR8ampbellD
'o+e)er it could be ar%ued that the ‘more than merely preparatory test! has helped clarify
and simplify the la+ as it is an impro)ement on prior tests" 9t ma1es it easier for <uries
because they can apply common sense"
Protection of t'e %!lic
.hy should attemptin% somethin% ma1e someone liableV The main <usti;cation is protection
of the public"
8an pre)ent the full oence from bein% committed" 9t +ould be ridiculous if the police had to
+ait until D ;red the shot and 1illed V, instead of bein% able to arrest him for attempted
murder"
&ut can +e reconcile Meddes and 8ampbell +ith thisV
La& Commission Pro%osals
Or %ro"isional %ro%osal: t'e o$ence of ‘attempt!
.e are pro)isionally proposin% that there should be an oence of ‘attempt!con;ned to those
+ho, +ith intent to commit a substanti)e oence, +ere en%a%ed in the last acts needed to
commit it" 9n other +ords, their attempt +as complete or all=!t com%lete<
Or %ro"isional %ro%osal: t'e o$ence of Ocriminal %re%aration8
.e are pro)isionally proposin% that there should be a ne+ oence of ‘criminal preparation!
applyin% to those +ho, +ith intent to commit the oence, +ere still only preparin% to commit
it but had proceeded beyond the sta%e of mere preparation" 9n other +ords, their
preparation +as immediately
S'ol+ intention alone ma9e a +efen+ant (ilt#N
2hould a D be liable for his intention or mere contemplationsV
7r must he do somethin% to+ard the commission of the full oenceV
This $uestion is particularly rele)ant to attemptin% the impossible" 92 it fair that 2hi)puri +as
%uilty despite not actually dealin% in dru%s or doin% anythin% +ron%V 9s it enou%h that he
intended to in order to protect the publicV
• Mr+er 0 intention to 1ill or to cause really serious harm (M&')
• Attem%te+ mr+er 0 intention to 1ill only
This means that it is easier to be con)icted of murder than it is for attempted" 9s this fairV
&ut D could be char%ed +ith attempted s"@Q M&' instead so is not completely let o"
ATTEMPTS EVALUATION ESSAY
9f a defendant fully intends to commit a crime but for some reason fails to complete
the actus reus, the la+ on attempts is a)ailable to ensure that they can be
prosecuted" The rationale behind the la+ is that those +ho plan to commit an
oence but fail deser)e to be punished and its e*istence means that if the police
are a+are that an oence is %oin% to be committed, they do not ha)e to +ait until it
is complete before arrestin% the suspects" 9f the defendant is found %uilty, they +ill
usually face the same ma*imum penalty that applies to the full oence"
The problem +ith prosecutin% those +ho attempt crimes is +here to dra+ the line"
2hould they be liable as soon as they thin1 of committin% a crimeV 7b)iously the
la+ does not see1 to punish those +ho merely thin1 about committin% an oence as
most people ha)e probably thou%ht about committin% a crime but fe+ e)er +ould
and also it +ould be )irtually impossible to secure a con)iction in those
circumstances" The di4culty is at +hat sta%e the defendant becomes criminally
liable for an attempted crime"
The la+ on attempts is contained in the 8riminal Attempts Act @PQ@: 2ection @(@) U9f
+ith intent to commit an oence to +hich this section applies, a person does an act
+hich is more than merely preparatory to the commission of the oence, he is %uilty
of attemptin% to commit the oence"E
2ince the Act does not de;ne the phrase, this is a matter for the <ury to decide in
each case" The <ud%e +ill ;rstly consider +hether there is enou%h e)idence to %o
before the <ury but if so, it is entirely a matter of fact for them" 9t is up to them to
decide +hether the defendant has passed the preparation sta%e and pro%ressed to
somethin% beyond that" 7b)iously, this is not an easy decision to ma1e"
9n R ) Mullefer (@PQS), the defendant had placed a bet on a %reyhound at the
racetrac1 but it soon became ob)ious that his choice +as not %oin% to +in" The
defendant ran onto the trac1 in order to disrupt the race so that it +ould be
declared )oid and he could then retrie)e his sta1e money from the boo1ma1ers" The
$uestion +as +hether his actions could be said to be more then merely preparatory
to the commission of theft" The 8ourt of Appeal o)erturned his con)iction for
attempted theft" They said that he had not %one beyond the preparatory sta%es, as
he still had to %o and as1 for his money bac1 from the boo1ma1ers"
3re)iously, the la+ on attempts +as co)ered by the common la+ and a series of
tests +ere de)eloped by the courts to decide +hether the defendant +as %uilty or
not" 2ince Mullefer, the courts ha)e stressed that the +ords of the 8riminal Attempts
Act @PQ@ are to be follo+ed rather than the tests laid do+n in pre5statute cases" 9n R
) Meddes (@PPA), the defendant +as found in the boys! toilets of a school" 'e ran
o, lea)in% a ruc1sac1 containin% strin%, tape and a 1nife" 'e +as con)icted of
attempted false imprisonment but on appeal this +as $uashed, as despite the fact
that he clearly had the re$uisite intention, his actions +ere preparatory ( he had not
pro%ressed beyond the preparatory sta%e since he had not made contact +ith any
of the boys" 'e had simply put himself in the position of bein% able to commit the
oence and he had not mo)ed into the implementation sta%e"
The defendant in R ) Tosti (@PPS), alon% +ith another had o*yacetylene e$uipment
+hich they hid in a hed%e near to a barn that they planned to brea1 into" They
+al1ed up to the barn door and e*amined the loc1 on it +hen they realised that
they +ere bein% +atched and ran a+ay" 7n appeal, their con)ictions for attempted
bur%lary +ere upheld as the 8ourt of Appeal said that there +as e)idence that
sho+ed that they had %one bein% the preparatory sta%es and had actually tried to
commit the oence"
9n order to be liable, the statute states that the defendant must act +ith intent to
commit an oence ( thus the mens rea for an attempted oence is intention" Thus,
for e*ample, the mens rea for attempted murder is an intention to 1ill, an intention
to cause M&' +hich +ould be su4cient for a murder con)iction, +ill not be enou%h
to ma1e the defendant liable for attempted murder"
9n R ) Mohan (@PSA), The defendant refused to stop +hen a police o4cer si%nalled
for him to do so and instead, dro)e to+ards the o4cer +ho mana%ed to mo)e out of
the +ay in time" The defendant!s con)iction for attempted M&' +as $uashed due to
an error by the trial <ud%e" The 8ourt of Appeal stated that the mens rea for an
attempted oence +as satis;ed by a decision to brin% about the commission of the
oence ( in other +ords only intention +ould su4ce"
A conditional intent may arise, if for e*ample, instead of ha)in% a speci;c ob<ect in
mind, the defendant intends to ta1e anythin% +orth stealin%" This may be enou%h to
ma1e him liable for an attempted oence" 9n R ) 'usseyn (@PSS), the defendant and
another man +ere seen standin% by the bac1 of a )an +hich contained di)in%
e$uipment" They had intended to ta1e anythin% +orth stealin% but ran o +hen the
police approached them" The defendant +as con)icted of attemptin% to steal the
di)in% e$uipment but this +as $uashed on appeal as he had been char%ed
speci;cally +ith attemptin% to steal the di)in% e$uipment +hen in fact his true
intention +as to steal anythin%"
This case appeared to lea)e a %ap in the la+ +hich posed a problem for the courts
since a defendant could simply claim that they +ere not intendin% to steal +hate)er
speci;c thin% +as detailed in the char%e and follo+in% 'usseyn, they +ould be
ac$uitted" The problem +as resol)ed in Attorney Meneral!s References (6os" @ and F
of @PSP) +here the 8ourt of Appeal held that a conditional intent +as enou%h to
impose liability for an attempted oence if the char%e does not refer to speci;c
items" 9n 'usseyn, the defendant could ha)e been found %uilty if he had been
char%ed +ith attempted theft of anythin% from the )an instead of bein% char%ed
speci;cally +ith attempted theft of the di)in% e$uipment, as there +as no e)idence
that this +as his intention"
.ith re%ard to attemptin% the impossible, section @(F) of the 8riminal Attempts Act
@PQ@ states that:
UA person may be %uilty of attemptin% to commit an oence to +hich this section
applies e)en thou%h the facts are such that the commission of the oence is
impossible"E
Thus, the person +ho puts their hand into an empty poc1et can be %uilty of
attempted theft e)en thou%h it +ould be impossible for them to be con)icted of the
full oence as there +as nothin% to steal" 'ere, the crime is physically impossible
but in other circumstances, the crime may be le%ally impossible, for e*ample if the
defendant attempts to handle +hat they thin1 are stolen %oods but the %oods are
not in fact stolen e"%" Anderton ) Ryan (@PQH), the defendant bou%ht a )ideo
recorder that she belie)ed to be stolen" After confessin% this to the police, they
found no e)idence to sho+ that the )ideo had actually been stolen and the
defendant +as therefore char%ed +ith attemptin% to handle stolen %oods" 2he +as
con)icted but on appeal, the 'ouse of ,ords $uashed her con)iction despite the fact
that the +ordin% of section @(F) of the Act clearly made her %uilty"
This +as an une*pected result and one +hich +as to be chan%ed only a year later in
R ) 2hi)puri (@PQA) +here the defendant +as arrested after bein% found carryin% a
suitcase +hich he belie)ed contained either heroin or cannabis" 9n fact, the
substance +as merely dried cabba%e lea)es" The defendant +as con)icted of
attemptin% to be 1no+in%ly concerned in dealin% in controlled dru%s" 'is con)iction
+as upheld by the 8ourt of Appeal" 7n appeal to the 'ouse of ,ords, they too1 the
opportunity to correct the mista1e made a year earlier in Anderton ) Ryan" They
used the @PAA 3ractice 2tatement to depart from their pre)ious decision" The
defendant +as held to be %uilty since he had clearly intended to commit the oence
and had done an act +hich +as more than merely preparatory to the commission of
the oence"
9f con)iction of a crime is impossible because there is no such oence, the
defendant cannot be %uilty of attemptin% it" As in R ) Taae (@PQW) +here the
defendant!s lu%%a%e +as searched by customs on arri)al into the =B and a number
of pac1a%es +ere found in his lu%%a%e" 'e +as as1ed +hat they contained and
replied that it +as money" 'e thou%ht that he +as committin% a crime by importin%
currency into the =B" 9n fact, there is no such crime so the defendant could not be
%uilty of attemptin% it" 9t +as irrele)ant that he thou%ht that he +as actually
committin% a crime"
2ome ha)e a%ued that the person con)icted of an attempted oence should not
face the same ma*imum penalty as someone +ho has actually committed the full
oence since they are not as blame+orthy" Those in fa)our of the current system
ar%ue that often a person +ill only fail to commit the full oence because they are
cau%ht beforehand or because somethin% beyond their control occurs to pre)ent
them" They claim that if the defendant intended to commit the crime then they are
as blame+orthy as the defendant +ho actually committed it and should therefore
face the same sentence"
As the statute %i)es no de;nition of +hat is meant by the phrase Umore than merely
preparatory,E it is left to <uries and appeal courts to decide" This creates uncertainty
and can allo+ defendants +ho are clearly a dan%er to a)oid liability as in Meddes"
7nce the defendant has performed an act +hich is more than merely preparatory,
there is no opportunity or incenti)e for them to +ithdra+ since they +ill be liable for
the attempted oence" As this carries the same ma*imum penalty as the full
oence, they mi%ht as +ell continue since there is nothin% to be %ained by
+ithdra+al"
F< 5'# is it necessar# for t'e criminal la& to co"er attem%tsN
9f a defendant fully intends to commit a crime but for some reason fails to
complete the actus reus, the la+ on attempts is a)ailable to ensure that they
can be prosecuted" The rationale behind the la+ is that those +ho plan to
commit an oence but fail deser)e to be punished and its e*istence means
that if the police are a+are that an oence is %oin% to be committed, they do
not ha)e to +ait until it is complete before arrestin% the suspects"
B< 4o& is an attem%t +e3ne+N
The la+ on attempts is contained in the 8riminal Attempts Act @PQ@:
2ection @(@) U9f +ith intent to commit an oence to +hich this section applies,
a person does an act +hich is more than merely preparatory to the
commission of the oence, he is %uilty of attemptin% to commit the oence"E
D< 5'o +eci+es &'et'er an act is Mmore t'an merel# %re%arator#NP
2ince the Act does not de;ne the phrase, this is a matter for the <ury to
decide in each case" The <ud%e +ill ;rstly consider +hether there is enou%h
e)idence to %o before the <ury but if so, it is entirely a matter of fact for them"
9t is up to them to decide +hether the defendant has passed the preparation
sta%e and pro%ressed to somethin% beyond that" 7b)iously, this is not an
easy decision to ma1e"
E< 5'at 'a%%ene+ in R " Tosti *FGGK,N
The defendant alon% +ith another had o*yacetylene e$uipment +hich they
hid in a hed%e near to a barn that they planned to brea1 into" They +al1ed up
to the barn door and e*amined the loc1 on it +hen they realised that they
+ere bein% +atched and ran a+ay" 7n appeal, their con)ictions for
attempted bur%lary +ere upheld as the 8ourt of Appeal said that there +as
e)idence that sho+ed that they had %one bein% the preparatory sta%es and
had actually tried to commit the oence"
H< 5'at is t'e mens rea of attem%tN
9n order to be liable, the statute states that the defendant must act +ith
intent to commit an oence ( thus the mens rea for an attempted oence is
intention" #or e*ample, the mens rea for attempted murder is an intention to
1ill, an intention to cause M&' +hich +ould be su4cient for a murder
con)iction, +ill not be enou%h to ma1e the defendant liable for attempted
murder"
L< Can a %erson attem%t t'e im%ossi!leN
Xes, section @(F) of the 8riminal Attempts Act @PQ@ states that:
UA person may be %uilty of attemptin% to commit an oence to +hich this
section applies e)en thou%h the facts are such that the commission of the
oence is impossible"E
K< 5'at 'a%%ene+ in An+erton " R#an *FGJH,N
The defendant bou%ht a )ideo recorder that she belie)ed to be stolen" After
confessin% this to the police, they found no e)idence to sho+ that the )ideo
had actually been stolen and the defendant +as therefore char%ed +ith
attemptin% to handle stolen %oods" 2he +as con)icted but on appeal, the
'ouse of ,ords $uashed her con)iction despite the fact that the +ordin% of
section @(F) of the Act clearly made her %uilty"
J< 4o& &as t'is recti3e+ a #ear laterN
9n the case of R ) 2hi)puri (@PQA) 5 The defendant +as arrested after bein%
found carryin% a suitcase +hich he belie)ed contained either heroin or
cannabis" 9n fact, the substance +as merely dried cabba%e lea)es" The
defendant +as con)icted of attemptin% to be 1no+in%ly concerned in dealin%
in controlled dru%s" 'is con)iction +as upheld by the 8ourt of Appeal" 7n
appeal to the 'ouse of ,ords, they too1 the opportunity to correct the mista1e
made a year earlier in Anderton ) Ryan" They used the @PAA 3ractice
2tatement to depart from their pre)ious decision" The defendant +as held to
be %uilty since he had clearly intended to commit the oence and had done
an act +hich +as more than merely preparatory to the commission of the
oence"
G< 5'at is t'e ma)imm sentence t'at a %erson con"icte+ of an
attem%te+ crime can recei"eN
9f the defendant is found %uilty, they +ill usually face the same ma*imum
penalty that applies to the full oence"
FC< /o #o t'in9 t'at it is fair t'at t'e +efen+ant can recei"e t'is
%enalt#N
2ome ha)e a%ued that the person con)icted of an attempted oence should
not face the same ma*imum penalty as someone +ho has actually
committed the full oence since they are not as blame+orthy" Those in fa)our
of the current system ar%ue that often a person +ill only fail to commit the
full oence because they are cau%ht beforehand or because somethin%
beyond their control occurs to pre)ent them" They claim that if the defendant
intended to commit the crime then they are as blame+orthy as the defendant
+ho actually committed it and should therefore face the same sentence"
MUR/ER . MANSLAU-4TER REVISION
4omici+e 1 the unla+ful 1illin% of a human bein%" There are dierent types
dependin% on the mens rea of the D and +hether there is a special defence"
Mr+er Q most serious +here D 1ills V ha)in% 96TL6DLD (directly or indirectly) to
do so"
MThe unlawful killing of a reasonable erson in b(eing an! un!er the
)ueens eace with malice aforethought* e+ress or imlie!,
Volntar# Mansla('ter Q .here the 1illin% occurs +hen the D is under
• Diminished Responsibility
• ,oss of control
• 2uicide 3act
The T defences are 3ART9A, ( char%e of murder is reduced to manslau%hter and the
<ud%e has discretion in +hat sentence is imposed rather than bein% limited to a life
sentence"
/IMINIS4E/ RESPONSIBILITY
s<B*F, 4A FGHK
/EFINITION: U.here a person 1ills or is party to a 1illin% of another, he shall not be
con)icted of murder if he +as suerin% from such abnormality of mind (+hether
arisin% from a condition of arrested or retarded de)elopment of mind or any
inherent causes or induces by disease of in<ury) as substantially impaired his mental
responsibility for his acts and omission in doin% or bein% a party to the 1illin%E"
BUR/EN OF PROOF: on the D pro)ed on the balance of probabilities"
ABNORMALITY OF MIN/: A state of mind so dierent from that of ordinary human
bein%s that the reasonable man +ould term it abnormal (&yrne)" 8omparisons +ith
insanity are not helpful (2eers)"
8an include:
• Depression, (2eers) 3aranoia (2imco*) , Lpilepsy(3rice) , 3MT, &.2
('obson)
O is +ide enou%h to co)er
• The inability to form a rational <ud%ement as to +hether an act is ri%ht
or +ron%
• The inability to e*ercise +ill po+er to control physical acts +ith that
rational <ud%ement (irresistible impulses)"&yrne"
CAUSES OF ABNORMALITY OF MIN/:
Abnormality of mind must be attributable to at least one of the causes listed in
s"F(@)
An# In'erent Case: (an internal cause from +ithin D) .ide scope O doesn!t need
to be inherited or present from birth (Mome/)" 9ncludes the e*amples abo)e i"e"
psychopathy (&yrne)- mental de;ciency (2pea1e)- paranoia, epilepsy" Depression,
3MT, &.2 O Asper%er!s syndrome (>ama)
/isease: .ide enou%h to co)er mental as +ell as physical disease (2anderson)"
In;r#: usually as a result of physical )iolence but can also be in:icted by )iolent or
dramatic psycholo%ical stress as +ell as by slo+ merciless factors, little by little and
+ith hopelessness" (.hit+orth)"
SUBSTANTIALLY IMPAIRS:
B#rne: The $uestion of +hether D!s impairment could be described as substantial
+as a $uestion of a de%ree and so +as one for the <ury (althou%h medical opinion
+as not irrele)ant)"
Llo#+: 9t doesn!t mean ‘total! nor does it mean ‘tri)ial! or ‘minimal!" 9t is somethin%
in bet+een"
M9VL2 >=RX .9DL D928RLT976 ( ha)e found manslau%hter +here )ery little e)idence
of DR but D has reacted to se)ere %rief or stress"
/R . INTOIICATION
• Transient eect of drin1 or dru%s on brain is not an in<ury for the purposes of
DR (Di Duca- 7!8onnell)
• Alcoholism is only a defence if drin1in% is in)oluntary or brain has been
dama%ed (Tandy)
• .here the D has a %re=e)istin( mental disorder, into*ication does not
pre)ent him usin% the defence" T'e a!normalit# of min+ +oes not 'a"e
to !e t'e sole case of t'e +efen+ant +oin( t'e 9illin(< (Mittens- L%an-
Dietschmann- 'endy)
FGGQ =3DATL:
5oo+ *BCCJ,
Alcohol dependency syndrome could be considered as a possible source of
abnormality of mind and +as for the <ury to decide" 9f the <ury found that it +as an
abnormality of mind they had to then consider the eect of any alcohol consumed
by the D as a result of his dependency" The <ury ha)e to decide +hich drin1s +ere
in)oluntary and consider the eect of those, +hile i%norin% any consumption of
alcohol they decide +as )oluntary"
PROVOCATION *NB no& loss of control 1 %lease refer to notes@!oo9,
S<D 4A FGHK
/EFINITION: U+here on a char%e of murder there is e)idence on +hich the <ury can
;nd the person char%ed +as pro)o1ed (+hether by thin%s done or by thin%s said or
by both to%ether) to lose his self5control, the $uestion +hether the pro)ocation +as
enou%h to ma1e a reasonable man do as he did shall be left to the <ury- and in
determinin% that $uestion the <ury shall ta1e into account e)erythin% both done and
said accordin% to the eect it +ould ha)e on a reasonable manE
&=RDL6 7# 3R77#: D must pro)ide e)idence of pro)ocation" The onus is then on 3
to pro)e that D +as 67T pro)o1ed" 9f there is e)idence of pro)ocation, the <ud%e
must direct the <ury to consider it"
T5O STA-E TEST:
F< A SUB>ECTIVE test 1 did D lose his self controlV
B< An OB>ECTIVE test 1 .as the pro)ocation enou%h to ma1e a reasonable
man do as D didV .hen conductin% the ob<ecti)e test, D!s characteristics are
rele)ant, but only +hen assessin% the %ra)ity of pro)ocation *>ames7 :arimi
*BCCL, follo&in( 4olle# *BCCH, an+ o"errlin( Smit' *Mor(an, BCCC
(oin( !ac9 to Cam%lin,
a" Po&er of self control 1 D is assumed to ha)e the standard of self
control e*pected of a reasonable person of the a%e and se* of the D"
(ob<ecti)e test)
b" -ra"it# of t'e %ro"ocation 1 D!s characteristics can be ta1en into
account e"%" %lue snier (Morhall), impotence (&edder)- pre%nancy,
menstruation, physical deforminty, in;rmity (8amplin)" The
characteristics may be self induced and may be psycholo%ical as +ell
as physical"
54AT CAN BE PROVOCATIONN
3hysical assaults, both on D or on his relati)es (3earson)- homose*ual ad)ances- the
continual cryin% of a @P day old baby(Dou%hty)- a denial of stealin% the D!s tools
(2mith (Mor%an))- the actions of a +ife!s lo)er in %oin% to meet her, +here the
husband +as pro)o1ed into 1illin% his +ife (Da)is ( pro)ocation can come from a T
rd
party)- supplyin% dru%s to D!s son (&aillie)"
LOSS OF SELF CONTROL
/UFFY: ‘2udden O temporary loss of self control renderin% the accused so sub<ect
to passion as to ma1e him or her for the moment not master of his mind!
CUMULATIVE PROVOCATION:
4m%'re#8s: pro)ocation is not con;ned to the last act or +ord before the 1illin%"
TIME LAPSE
The lon%er the time lapse bet+een the pro)ocation and the 1illin%, the less li1ely
that the defence +ill succeed" (9brams O Mre%ory- &aillie)" ,oss of self control must
be sudden not immediate (Thornton, Ahlu+alia)"
SLO5=BURN
Ar%ued unfair to +omen +ho ha)e a slo+er reaction (slo+5burn) to pro)ocation
(Thornton, Ahlu+alia)" This reaction does not ;t the Duy test" The D!s reaction to
the pro)ocation has to be sudden rather than immediate and the lon%er the delay,
the more li1ely the act is deliberate"
/R REFORM
F F Persons s$erin( from +iminis'e+ res%onsi!ilit#
U(@) A person (U3E) +ho 1ills or is a party to the 1illin% of another is not to be
con)icted of murder if 3 +as suerin% from a rele"ant mental im%airment
+hich pro)ides an e*planation for 3!s acts and omissions in doin% or bein% a
party to the 1illin%"
(@A) URele)ant mental impairmentE means an abnormality of mental
functionin% +hich 5
(a) arises from a reco(nise+ me+ical con+ition7 and
(b) substantially impairs 3!s ability to do one or more of the follo+in% 5
(i) to understand the nature of 3!s conduct-
(ii) to form a rational <ud%ment-
(iii) to e*ercise self5control"
(@&) #or the purposes of subsection (@), a rele)ant mental impairment
pro)ides an e*planation for 3!s conduct if it cases7 or is a si(ni3cant
contri!tor# factor in casin(, the person to carry out that conduct"E
@
F This brin%s the e*istin% terminolo%y up5to5date in a +ay +hich +ould
accommodate future de)elopments in dia%nostic practice and encoura%e
defences to be %rounded in a )alid medical dia%nosis lin1ed to the accepted
classi;catory systems +hich to%ether encompass the reco%nised physical,
psychiatric and psycholo%ical conditions"
T 9t also spells out +hat aspects of D!s functionin% must be impaired"
PROVOCATION REFORM
The Mo)ernment proposes to abolish the e*istin% la+ on pro)ocation and to replace
it +ith ne+ partial defences tailored to those +ho 1ill as a response to:
• a fear of serious )iolence- andRor
• circumstances of an e*tremely %ra)e character, %i)in% rise to a <usti;able
sense of bein% seriously +ron%ed"
The ;rst +ill co)er situations +here:
• a )ictim of sustained abuse 1ills his or her abuser in order to th+art an
attac1 +hich is anticipated but not immediately imminent- and
• someone o)erreacts to +hat they percei)e as an imminent threat"
9n the second it has been made clear that V!s in;delity .9,, 67T be reason
enou%h to 1ill" The threshold has been raised +here only +ords or
actions of e*ceptionally %ra)e character are acceptable"
2udden and temporary loss test +ill be abolished ( control must be lost but +ill
allo+ for situations +here the D!s reaction has been delayed or builds %radually"
@ The partial defences should apply only if a person of the defendant!s se* and
a%e, +ith a normal +e(ree of tolerance an+ self=restraint an+ in t'e
circmstances of t'e +efen+ant7 mi%ht ha)e reacted in the same or a similar
+ay"
ACTIVITIES:
Ran+ra7 &'o is a(e+ FL7 'as 'a+ an n'a%%# c'il+'oo+< S'e 'as left
'ome an+ 'as trne+ to +r(s an+ %rostittion< S'e is li"in( &it'
S'an7 a(e+ DD7 &'o is a &ei('tlifter< S'an re(larl# forces Ran+ra
to (i"e 'im 'er earnin(s< 4e is ;ealos an+ %ossessi"e an+ 'as !eaten
'er on a nm!er of occasions< S'e is immatre an+ 'as often 'arme+
'erself to see9 attention< One ni('t7 fearin( t'at S'an &ill !eat 'er
% an+ force 'er to 'a"e se) &it' 'im7 Ran+ra cts 'er &rists< 5'en
S'an comes into t'e lon(e an+ sees &'at s'e 'as +one7 'e tants
'er sa#in( s'e 'as ma+e a %at'etic ;o! of slas'in( 'er &rists< Ran+ra
(oes to 'er !e+room to (et 'er 9nife7 retrns to t'e lon(e an+ sta!s
S'an in t'e c'est 9illin( 'im instantl#<
/iscss Ran+ra8s %otential lia!ilit# for t'e mr+er of S'an<
/e3ne mr+er: Discuss direct intent to do serious harm at least therefore
murder char%e is sustainable
/iscss %ro"ocation@+iminis'e+ res%onsi!ilit# as %otential s%ecial an+
%artial +efences +hich, if successful, +ould reduce the con)iction to )oluntary
manslau%hter allo+in% discretion in sentencin%
/e3ne Pro"ocation ( 2"T 'omicide Act @PHS
E"i+ence of %ro"ocation: 2haun!s conduct and +ords and past beha)iour
may be ta1en to%ether to pro)ide e)idence of pro)ocation e)en thou%h the last
is tri)ial ( Humphreys
S++en an+ tem%orar# loss of self=control0 ( Du6y/ 7brams * 4regory/
'hornton/ Humphrey’s
o there appears to be no sudden and temporary loss of self5control (
Yandra %oes to her bedroom to %et her 1nife ( Du6y/ 7brams *
4regory
o There appears to be a ‘coolin% o! period ('hornton/ "hluwalia
@
O!;ecti"e Oreasona!le man test8: as de)eloped by the courts includin% the
characteristic +hich aect the %ra)ity of the pro)ocation to the accused and
those +hich aect the po+er of self control to be e*pected- ( !amplin/ Smith
($organ ames)/ Weller/ 3owland/ Holley/ $ohammed/ 1arimi * ames etc
• it +ould appear that Yandra!s immaturity may still be ta1en
into account ( !amplin/ Humphreys
• the e)idence of her suerin% from ‘battered +oman
syndrome! is more li1ely to be seen as a psychiatric condition
post "hluwalia/ Hobson/ Holley and this and her attention
see1in% is unli1ely to be ta1en into account as a rele)ant
characteristic unless it aects the %ra)ity of the pro)ocation
to the reasonable @A year old +oman, not the le)el of self5
control to be e*pected ( Holley/ $ohammed/ 1arimi * ames
/e3ne /iminis'e+ res%onsi!ilit# ( 2"F 'omicide Act @PHS
@Z abnormality of mind ( Byrne
FZ substantial impairment ( Sanderson
TZ internal cause
WZ speci;ed cause ( Seers/ "hluwalia/ Hobson
HZ medical e)idence
Ar%ue that the rele)ant e)idence appears to e*ist for a successful use of the
defence ( "hluwalia/ Hobson/ Humphreys
9t should, ho+e)er be supported by e*pert psychiatric e)idence ( Di-/ Hobson
Ar%ue to any lo%ical conclusion

>ohn, +ho has learnin% di4culties, is a member of his school?s under5@A mi*ed
hoc1ey team" The team?s captain, Ben, constantly criticises >ohn in front of the
other members of the team for bein% o)er+ei%ht and slo+" Durin% a particularly
rou%h %ame a%ainst a ri)al school, >ohn lost the ball to Batie, a %irl from the
opposin% team, +ho promptly scored" Ben ran o)er to >ohn, shoutin% furiously,
Cyou fat slu%, e)en a %irl can play better than youDC" >ohn felt an%ry and
humiliated and +hen Batie ne*t mo)ed in to tac1le him, he lost all restraint and
struc1 her sa)a%ely on the le% +ith his stic1" After the %ame +as o)er, Batie
noticed a s+ellin% in her le%, and sho+ed it to her sports teacher, ,isa" ,isa said
that it +as probably <ust a bad bruise, but ad)ised Batie to rest the le% and see
her doctor in the mornin%" Batie i%nored this ad)ice and +ent out to party +here
she danced until ten o?cloc1" 'o+e)er, that ni%ht Batie collapsed and +as ta1en
to hospital, +here she died" 9t +as later disco)ered that her death +as due to a
blood clot caused by the blo+ to her le%, and that her life could ha)e been
sa)ed if she had recei)ed prompt medical treatment"
8onsider +hether >ohn may be criminally liable for Batie?s death" JFHK
$N-.ER
>ohn may be %uilty of murder or manslau%hter, dependin% on
(a) his action bein% the cause in la+ of Batie?s death, and
(b) his state of mind +hen he struc1 Batie"
Casation 5 >ohn?s blo+ +as clearly the factual cause of Batie?s death, on the
Cbut5forC test in White, so the issue is +hether the conduct of either ,isa or Batie
amounts to a no)us actus inter)eniens" Batie?s conduct in i%norin% ,isa?s ad)ice
+ould seem to fall +ithin the principle of ta1in% one?s )ictim as you ;nd her:
Blaue. 9f V failed to see1 medical treatment (Holland) or acts in a +ay +hich
e*acerbates the ris1 of death (Wall) this +ill not normally brea1 the chain of
causation (Dear) 5 althou%h it may be rele)ant to sentence if D is con)icted of
manslau%hter" ,isa is sli%htly more problematic: she clearly has a duty of care
to+ards Batie and it could be ar%ued that she failed to dischar%e this by merely
%i)in% and +ould not +arrant ta1in% Batie to hospital"
8andidates may ar%ue that ,isa should ha)e administered ;rst aid, and dra+
analo%ies +ith cases in)ol)in% ne%li%ent medical treatment such as Smith,
ordan, !heshire or "dama#o (some may be a+are of $isa and Sri%asta%a
(FGGH), +here doctors held %uilty of %ross ne%li%ence manslau%hter for failure to
dia%nose and treat MR2A)" 'o+e)er, it seems )ery unli1ely that ,isa?s conduct
+ould be held to ha)e bro1en the chain of causation"
Mens rea 5 for murder, malice aforethou%ht 5 intention to 1ill or cause %rie)ous
bodily harm: $oloney/ 1no+led%e that one?s action is )irtually certain to cause
death or %rie)ous body harm: Woollin.
/efences 5 >ohn may ha)e the defence of diminished responsibility reducin%
murder to manslau%hter: 'omicide Act @PHS, s"F 5 abnormality of mind arisin%
from arrested or retarded de)elopment: Byrne"
Pro"ocation: 'omicide Act @PHS, s" T 5 >ohn may rely on pro)ocation e)en if he
+as pro)o1ed by Ben rather than Batie (Da%ies, 8earson)" Accordin% to the ', in
smith ($organ), e)idence of mental impairment is rele)ant to both the %ra)ity of
the pro)ocation to D and his capacity for self5control: ho+e)er, this had been
disappro)ed by the full 3ri)y 8ouncil in "94 for ersey % Holley (FGGH)" The
position +ould no+ seem to be as it +as under !ampling and $orhall i"e",
mental impairment rele)ant to +hether D lost his control and the %ra)ity of the
pro)ocation to D, but D?s action to be <ud%ed a%ainst the standard of a
reasonable person of D?s se* and a%e"
In"olntar# mansla('ter 5 unla+ful act manslau%hter 5 act must be unla+ful
and dan%erous: 2ran#lin, 0amb, !hurch, &ewbury" Tac1les that %o beyond the
rules of a %ame and deliberate assaults in the course of or%anised sports ha)e
been held unla+ful: Bradshaw, con;rmed in Brown"
Mross ne%li%ence manslau%hter re$uires a duty of care by D to+ards V 5 D must
either be rec1lessly indierent to an ob)ious ris1 to V?s health, or foresee the
ris1 and decide to run it: Stone and Dobinson, appro)ed by ', in "dama#o"
=nli1ely to be rele)ant to >ohn, but some candidates may ar%ue a case for its
application to ,isa"
INVOLUNTARY MANSLAU-4TER
/e3nition: An unla+ful 1illin% +here the defendant does not ha)e the intention,
either direct or obli$ue, to 1ill or to cause M&'"
5a#s of Committin( In"olntar# Mansla('ter
• =nla+ful act manslau%hter
• Mross ne%li%ence manslau%hter
• Rec1less manslau%hter
UNLA5FUL ACT MANSLAU-4TER
The elements:
• D must do an unla+ful act
• The act must be dan%erous on an ob<ecti)e test
• The act must cause death
• The 2 must ha)e the re$uired mens rea for the unla+ful act"
Unla&fl Act:
• Must be unla+ful (,amb)
• A ci)il +ron% is not enou%h (#ran1lin)
• 9t must be an act- and omission is not su4cient (,o+e)
9n many cases the unla+ful act +ill be some 1in% of assault but any criminal oence
can form the unla+ful (arson, criminal dama%e, bur%lary)"
/an(eros Act:
• An o!;ecti"e test ( +ould a sober and reasonable person realise the ris1 of
some harmV (8hurch)
• The ris1 need only be of some harm ( not serious harm (,ar1in)
• The act need not be aimed at the ;nal )ictim (Mitchell)
• An act aimed at property can still be such that a sober and reasonable person
+ould realise the ris1 of some harm (Moodfello+)
• There must be a ris1 of physical harm- mere fear is not enou%h (Da+son)"
• .here a reasonable person +ould be a+are of the )ictim!s frailty and the ris1
of physical harm to him, then D +ill be liable (.atson)"
Cases /eat'
• 6ormal rules of causation applu- the act must be the factual and le%al cause
of death (Dalby)
• An inter)enin% act such as the )ictim self5in<ectin% a dru% brea1s the chain of
causation (Bennedy)
• merely preparin% the in<ection is not a cause of death" V!s self5in<ection
brea1s the chain of causation" The D can only be %uilty if he +as in)ol)ed in
administerin% the in<ection"
• D may be liable for %ross ne%li%ence manslau%hter instead (Dias) +here it
can be sho+n that D o+ed V a duty of care"
Mens Rea
• D must ha)e mens rea for the unla+ful act but it is not necessary to pro)e
that D foresa+ any harm from his act (6e+bury and >ones)
-ROSS NE-LI-ENCE MANSLAU-4TER
Elements:
• The e*istence of a duty of care to+ards the )ictim
• A breach of that duty of care +hich causes death
• Mross ne%li%ence o)er the ris1 of death +hich the <ury considers to be
criminal"
/t# of Care:
• D must o+e V a duty of care (Adoma1o)
• The ci)il concept of ne%li%ence applies (Adoma1o)
• 8o)ers +ide ran%e of situations, e"%" maintainin% a %as ;re (2in%h)
• May e)en co)er a duty not to supply dru%s (Ro%ers)
• The fact that V +as party to an ille%al act is not rele)ant (.ac1er)
Breac' of +t#:
This can be by an act or omission
-ross Ne(li(ence
• &eyond a matter of mere compensation and sho+ed such disre%ard for the
life and safety of others as to amount to a crime (&ateman)
• 8onduct so bad in all the circumstances as to amount to a criminal act or
omission (Adoma1o)
Ris9 of /eat'
There must be a ris1 of death from D!s conduct, it is not enou%h to sho+ a ris1 of
bodily in<ury or in<ury to health (Adoma1o- Misra and another)"
REC:LESS MANSLAU-4TER
,idar (FGGG) ( 8A held that there +as a third limb of in)oluntary manslau%hter" The
court said that there +as nothin% in Adoma1o to su%%est that sub<ecti)e
rec1lessness manslau%hter had been abolished"
D causes V!s death (there is no re$uirement that D o+ed V a duty of care"
D must ha)e foreseen a ris1 of serious in<ury or death occurrin%" (8unnin%ham
rec1lessness)
D must ha)e assessed that ris1 as at least hi%hly probable to occur"
REFORM
UNLA5FUL ACT
Pro!lems:
• 8o)ers a )ery +ide ran%e of conduct
• Death may be an une*pected result- if the same act resulted in minor in<ury,
the D +ould only be liable for the oence"
• A D +ho did not realise there +as ris1 of any in<ury is still %uilty because of
the ob<ecti)e nature of the test"
Reform:
=nder the ,8 recommendations in their FGGA report (the three tier homicide)
manslau%hter +ould co)er:
@" Billin% another person throu%h %ross ne%li%ence- or
F" (8riminal Act Manslau%hter) Billin% another person:
a" Throu%h the commission of a criminal act intended by the D to cause
in<ury- or
b" Throu%h the commission of a criminal act that the D +as a+are
in)ol)ed a serious ris1 of causin% some in<ury"
More serious situations (+here D intended to cause in<ury or a fear or ris1 of in<ury
and +as a+are that his or her conduct in)ol)ed a serious ris1 of causin% death)
+ould be classed as second de%ree murder"
-ROSS NE-LI-ENCE MANSLAU-4TER
Pro!lems:
• The test is circular, as the <ury is directed to con)ict of a crime if they thin1
that the conduct +as criminal"
• The test may lead to inconsistent )erdicts, as it depends on +hat dierent
<uries thin1
• The ci)il test for ne%li%ence should not be used in criminal cases: the purpose
of the t+o branches of la+ is $uite dierent"
Reform:
9n their FGGA report, the ,8 recommended that there should be %ross ne%li%ence
manslau%hter +hich +ould be committed +here:
• A person by his or her conduct causes the death of another-
• A ris1 that his or her conduct +ill cause death"" +ould be ob)ious to a
reasonable person in his or her position-
• 'e or she is capable of appreciatin% that ris1 at the material time- and
• [his or her conduct falls far belo+ +hat can reasonably be e*pected of him
or her in the circumstances"
&=T: they recommend 1eepin% the rule that M6M can be committed e)en +hen D
+as una+are that his or her conduct mi%ht cause death but 3 must pro)e that the D
is capable of appreciatin% that ris1 at the material time (pre)entin% those +ith
mental disabilities or youn%er children bein% con)icted"
REC:LESS MANSLAU-4ER
9n their FGGA report the ,8 re*commended that the oence be abolished as a
separate cate%ory" 9n more serious cases of rec1lessness (+here there +as an
intention to cause a fear or ris1 of in<ury) +ould amount to second de%ree murder
and in less serious cases, most cases +ould be co)ered by M6M as D +ould be hard
pressed to deny that he or she +as +ell a+are of the ris1 of his or her conduct
1illin% someone"
ACTIVITIES:
Raul and 8hristiano are standin% in a $ueue at a bus stop +hen they be%in
ar%uin% +ith one another" Raul pushes 8hristiano +ho sta%%ers bac1+ards
and collides +ith Mar%aret, an QT year old lady" Mar%aret falls bac1+ards
onto the pa)ement" 2he is in<ured and in pain" Mar%aret is ta1en to hospital
+here *5rays re)eal that she has bro1en her hip" Doctors a%ree that the
in<ury is made +orse partly because she suers from osteoporosis (a disease
+hich ma1es her bones unusually brittle)" Althou%h Mar%aret is elderly,
Doctor 2mith decides to operate in order to allo+ Mar%aret any chance of
bein% able to +al1 in future" A fe+ days later, Mar%aret is reco)erin% slo+ly
from the operation +hen she de)elops a secondary infection" Doctor 2mith
prescribes Mar%aret penicillin but she is aller%ic to the dru% and dies"
Discuss the potential criminal liability of both Raul and Doctor 2mith for the
death of Mar%aret" JFHK
/e3ne in"olntar# mansla('ter
For Ral
Discuss the potential oence of murder and dismiss it for lac1 of the rele)ant mens
rea
De;ne =nla+ful and dan%erous actRconstructi)e manslau%hter ( !hurch/ &ewbury *
ones/ $itchell/ 4oodfellow/ Dalby/ !arey etc
Discuss the potential oence of unla+ful actRconstructi)e manslau%hter, discuss
and apply to the facts:
• The act must be criminalRa push, thou%h tri)ial, is a battery ( $itchell/ !arey
• 9s it ‘dan%erous!V ( the facts su%%est it may be as e)en the primary )ictim
8hristiano may fall and suer ‘some harm! in the )ie+ of a <ury
• Discuss +hether this could therefore amount to foresi%ht of in:ictin% %rie)ous
bodily harm rec1lessly and a potential s"FG A73A oence
• Apply the principle of transferred malice 5 0atimer ( and apply to Mar%aret!s
in<ury
• 'as it made a factual and more than minimal contribution to Mar%aret!s
deathV ( XesV
CAUSATION
L*plain the principles of causation:
Z #actual causation ( White
Z ,e%al causation ( 8agett/
Z 5de minimis’ principle ( 1imsey
Z ‘Ta1e your )ictim as you ;nd them! ( Hayward/ Blaue
Z 5no%us actus inter%eniens’ and medical treatment ( ordan/ Smith/ !heshire
etc
'as the medical ne%li%ence bro1en the chain of causationV Ar%uable ( discuss and
apply ordan/ Smith/ !heshire to a reasoned conclusion
Discuss +hether the medical ne%li%ence has bro1en the chain of causation in allRany
of the abo)e alternati)esV Ar%uable ( discuss and apply ( ordan/ Smith/ !heshire to
a reasoned conclusion notin% that, as a matter of policy, the courts are reluctant to
allo+ e)en ne%li%ent medical treatment to ‘brea1 the chain of causation!
-ross ne(li(ent mansla('ter ( "dama#o/ 0itch(eld/ Wac#er/ $isra *
Sri%asta%a
Discuss the potential oence of %ross ne%li%ence manslau%hter, discuss and apply
to the facts:
• 9s a duty of care o+ed to 8hristiano (and Mar%aret)V "dama#o/
Donoghue % Ste%enson
• 'as the duty of care been bro1enV Xes, 8hristiano is the )ictim of a
battery
• 9s Raul!s conduct so far belo+ that to be e*pected of a reasonable
person in those circumstances as to amount to a crimeV Technically yes
in one +ay as he has committed a crime
• 9s there a ris1 of deathV (This is debateable) There +as clearly a )ery
small ris1 of death and Mar%aret has e)entually died but +ould a <ury
thin1 it e*isted +hen Raul pushed 8hristianoV
• As abo)e, ar%ue to a reasoned conclusion
Rec9less mansla('ter ( 8i#e/ 0idar etc
Discuss the potential oence of rec1less manslau%hter, discuss and apply to the
facts:
Z Did Raul foresee a ris1 of death or serious harm to 8hristianoV (unli1ely, <ust
a push)
Z 3robably dismiss a rec1less manslau%hter char%e
E)%lain t'e %rinci%le of Otransferre+ malice8 ( 0atimer
Discuss and apply the principle of transferred malice +hich is rele)ant in each case
and conclude that Raul is potentially liable for the harm caused to his unintended
)ictim Mar%aret ( 0atimer
(Most credible +ould probably be unla+ful act manslau%hter)
For /octor Smit'
Discuss the potential oence of %ross ne%li%ence manslau%hter, discuss and apply
to the facts:
Z 9s a duty of care o+ed to Mar%aretV Xes ( "dama#o/ Donoghue % Ste%enson
Z 'as the duty of care been bro1enV 3erhaps, dependin% on Dr" 2mith!s
1no+led%e O conduct
Z 9s Dr" 2mith!s conduct so far belo+ that to be e*pected of a reasonable
doctor in those circumstances as to amount to a crimeV Ar%uably yes" =p
to the <ury
Z 9s there a ris1 of deathV Doctors must be a+are of this potentially fatal
aller%ic reaction" =p to the <uryV
Z As abo)e, ar%ue to a reasoned conclusion
MUR/ER REFORM
La& Commission8s Pro%osals
Murder should be di)ided into F separate oences:
• #irst de%ree murder (D intends to 1ill or intends to cause serious harm and
+as a+are that his or her conduct posed a serious ris1 of death)
• 2econd de%ree murder (+here D intended to do serious in<ury, but +as not
a+are that there +as a serious ris1 of death)"
Mandatory life sentences +ould only apply to ;rst de%ree murder"
-o"ernment8s res%onse:
>l# BCCJ
Re<ected the ,8 proposal of completely reformin% murder and so do not address the
problems of no intent to 1ill, the di4culty of the meanin% of intention, the lac1 of a
defence of duress and the use of the mandatory life sentence"
The only area +here the Mo)ernment accepted that reform is needed is the lac1 of a
defence for those +ho use e*cessi)e force in self defence" #or this the Mo)ernment
are proposin% a partial defence of ‘1illin% in response to a fear of serious )iolence!
+hich replaces pro)ocation"
Et'anasia
Also 1no+n as mercy 1illin%" .here D 1ills V because V is sudderin% throu%h an
incurable illness" Nuite often, D is the spouse or partner"
=nder the present la+, if D 1ills V then D is %uilty of murder, e)en if V has be%%ed D
to do the 1illin%" (3retty)" This means that D +ill be sentenced to life imprisonment
+ith a minimum term of @H years before D can be considered for release on licence"
As such a defendant is unli1ely to be a dan%erous person- surely there should be
more discretion in the sentence that the courts impose"
Practice Essa#
/iscss &'et'er t'e common la& (o"ernin( t'e o$ence of mr+er is
satisfactor# or is in nee+ of reform !# Parliament<
De;ne the oence of murder and e*plain the elements of the actus reus (unlawful
#illing:reasonable creature in being) and mens rea (De;ne ‘e*press malice! and
‘implied malice!).
Acts Res
• Discuss +hether a 1illin% may be la+ful e% self defence
• Discuss +hether a foetus is not a ‘reasonable creature in bein%! and comment
on the morality of that stance
Mens Rea
• L*plain that it is a crime of speci;c intent"
• Discuss the di4culty in practice for the prosecution in pro)in% +hat +as the
defendant!s state of mind
• Refer to dierent aspects of intention ( directRobli$ue, but bein% clear it
remains a sub<ecti)e concept"
• Discuss the distinction bet+een intention and foresi%ht of conse$uences (
$oloney
• L*plain the de)elopments that ha)e occurred e*plainin% the concept of
obli$ue intent and cite rele)ant cases e% $oloney/ Hancoc# * Shan#land/
&edric#// Woollin/ 3e "/ $athews * "llyeyne
• Discuss the omission of probability from the $oloney Muidelines and the
si%ni;cance of the re;nements produced in &edric# and Woollin
• Discuss the di4culties for <urors inherent in distin%uishin% bet+een de%rees
of probability
• Appreciate the fact that foresi%ht of intention is not the same as intention but
may be used in con<unction +ith 2"Q 8riminal >ustice Act @PAS ( e)idence
from +hich intention may be inferred by the <ury ( $oloney/ &edric#/ Woollin
OT4ER AOB COMMENTS
• Discuss the need to distin%uish bet+een murder and manslau%hter by
reference to the %ra)ity of the oence in terms of blame+orthy states of
mind and the sentence that attaches ie the mandatory life sentence for
murder is often unfair +hen D only intended to cause in<ury, not death"
• Discuss the proposition that <ud%es are often happy to allo+ <uries to decide
+hether a conse$uence +as intended by relyin% upon their ‘common sense!
<ud%ement on the e)idence
• Discuss +hether <uries should be as1ed to ma1e such <ud%ements on morally
reprehensible facts in murder trials as in $oloney, Hancoc#, Woollin etc
• Discuss the euthanasia debate and the decision in 8retty
REFORM
• Refer to the ,a+ Reform (Xear and a Day Rule) Act @PPA
• Refer to the ,a+ 8ommission!s FGGA 8onsultation 3aper and the
Mo)ernments Responses in FGGQ
• Discuss the ,a+ 8ommission!s 8onsultation 3aper 6o @SS proposin% a system
of de%rees of homicide similar to the system in the =2A
• Discuss, for e*ample, the proposed three tier structure for homicide and
proposed chan%es to a classi;cation of ;rst and second de%ree murder
• Discuss the proposed codi;cation of intention +hich su%%ests puttin% the
‘)irtual certainty! test in Woollin into statutory form
• Discuss the restricti)e eect of the mandatory death sentence and the +ay
that the ne+ proposals +ould oer <ud%es :e*ibility in respect of sentencin%
+ere they to be implemented
676 #ATA, 7##L68L2 RLV92976 67TL2
ASSAULT: 87MM76 ,A. &=T 8'ARMLD =6DLR 2"TP 8>A @PQQ
BATTERY: 87MM76 ,A. &=T 8'ARMLD =6DLR 2"TP 8>A @PQQ
ASSAULT OCCASIONIN- ACTUAL BO/ILY 4ARM: 2"WS 7A3A @QA@
MALICIOUS 5OUN/IN- OR INFLICTIN- -RIEVOUS BO/ILY 4ARM: 2"FG 7A3A
@QA@
5OUN/IN- OR CAUSIN- -RIEVOUS BO/ILY 4ARM 5IT4 INTENT: 2"@Q 7A3A
@QA@
ABH s.47
Battery Assault
GBH s.18
GBH s.20
NFO’s
:EY FACTS TABLES
OFFENCE /EFINITION ACTUS REUS CONSEAUENCE
REAUIRE/
MENS REA
A22A=,T An act +hich causes the
)ictim to apprehend the
in:iction of immediate,
unla+ful force +ith either an
intention to cause another to
fear immediate unla+ful
personal )iolence or
rec1lessness as to +hether
such fear is caused
8ausin% V to fear
immediate
unla+ful
)iolence"
Re$uires an act
but can be silent
telephone calls,
7reland (;<<=) or
letters !onstan>a
(;<<=)
6one needed 9ntention of or
sub<ecti)e
rec1lessness as to
causin% V to fear
immediate unla+ful
)iolence
&ATTLRX The application of unla+ful
force to another person
intendin% either to apply
unla+ful physical force to
another or rec1lessness as to
+hether unla+ful force is
applied
Application of
unla+ful
)iolence, e)en
the sli%htest
touchin%, !ollins
% Willcoc# (;<?@)
6one needed 9ntention of or
sub<ecti)e
rec1lessness as to
applyin% unla+ful
force D88 %
$a,ews#i (;<=A)
A&' An assault or battery +hich
causes actual bodily harm,
+ith the intention to cause
the )ictim to fear unla+ful
force, or to be sub<ecti)ely
rec1less as to +hether the
)ictim fears or is sub<ect to
unla+ful force
Assault, i"e" an
assault or battery
Actual bodily harm
(e"%" bruisin%) This
includes"
Momentary loss of
consciousness (3(')
% D88 (BCCD) *
3sychiatric harm
!han 2oo# (;<<@)
9ntention of or
sub<ecti)e
rec1lessness as to,
causin% fear of
unla+ful force, i"e"
the mens rea for an
assault or battery"
s"FG M&' .hosoe)er shall unla+fully
and maliciously +ound or
in:ict any %rie)ous bodily
harm upon any other person,
+ither +ith or +ithout a
+eapon or instrument, shall
be %uilty of an oence and
shall be liable to
imprisonment for not more
than ;)e years"
A direct or
indirect act or
omission $artin
(;??;)
6o need to pro)e
an assault
Burstow (;<<=)
Lither a +ound ( a
cuttin% o% the +hole
s1in: ! %
Eisenhower (;<?@)
7r
Mrie)ous bodily harm
(really serious harm)
+hich includes
psychiatric harm:
9ntention or
sub<ecti)e
rec1lessness as to
causin% some
in<ury (thou%h not
serious) 8armenter
(;<<;)
Burstow (;<<?)
s"@Q M&' .hosoe)er shall unla+fully
and maliciously by any means
+hatsoe)er +ound or cause any
%rie)ous bodily harm to any
person, +ith intent to resist or
pre)ent the la+ful apprehension
or detainer of any person, shall
be %uilty of[ an oence"
A direct or
indirect act or
omission +hich
causes V!s in<ury
A +ound or %rie)ous
bodily harm (as
abo)e)
2peci;c intention
to +ound or to
cause M&' or
speci;c intention to
resist or pre)ent
arrest plus
rec1lessness as to
causin% in<ury
$orrison (;<?<)

832 8'ARM96M 2TA6DARD2
CPS Codes Non-Fatal Oen!es
CPS Code
Co""on Assault
grazes; scratches; abrasions; minor bruising; swellings; reddening of the skin; superficial
cuts; or a "black eye".
CPS Code
A!tual #od$ly %ar"
loss or breaking of a tooth or teeth; temporary loss of sensory functions (which may include
loss of consciousness); extensive or multiple bruising; displaced broken nose; minor
fractures; minor but not very superficial cuts of a sort probably re!uiring medical
treatment (e.g. stitches); or psychiatric in"ury which is more than fear.

CPS Code
Gr$e&ous #od$ly %ar"
in"ury resulting in permanent disability or permanent loss of sensory function; in"ury which
results in more than minor permanent visible disfigurement; broken or displaced limbs or
bones including fractured skull compound fractures broken cheek bone "aw ribs etc;
in"uries which cause substantial loss of blood usually necessitating a transfusion; and
in"uries resulting in lengthy treatment or incapacity.
#ounding and $%& entail serious harm but the in"ury need not be life'threatening nor need
it be intended as such.
CPS Code
'ounds
(n law wounds re!uire a breaking of the continuity of the whole of the outer skin or inner
skin within the cheek or lip. )upture of internal blood vessels is excluded. *inor wounds
should not result in a section +, charge.
CPS Code
Se!t$on 18
-he greater mens rea re!uirement in section ./ means that it should be reserved for the
more serious cases as where there is0
a repeated or planned attack; deliberate selection of a weapon or adaptation of an article to
cause in"ury such as breaking a glass before an attack; making prior threats; or using an
offensive weapon against or kicking the victim1s head.

2ote also that the ulterior intent in section ./ may consist of an intent to resist or prevent
the lawful apprehension or detainer of any person and in these cases there must obviously
be evidence of such an intent.

8762L6T A2 A DL#L68L
OT'e la& on consent as a +efence to o$ences a(ainst t'e %erson
reco(nises t'at t'e casin( of +eli!erate 'arm ma# sometimes !e
;sti3e+<8
Consi+er t'e trt' of t'is statement< SHCT
I+eal Strctre . Content
Refer to the defence of consent +hen applied to oences a%ainst the person ( i"e" that
consent may be a defence to battery and other oences a%ainst a person includin% se*ual
oences- 8onsent is not ho+e)er, strictly a defence as +here the other person consents,
there is no oence (Dono)an- 2lin%sby)"
Reco(nise t'e limitations imposed upon the a)ailability of consent e% not a)ailable to a
char%e of homicide ( euthanasia is not reco%nised in the =B, aidin% and abettin% a suicide
is an oence-
AOB: Discuss +hether euthanasia should be made la+fulV (3retty ) D33 (FGGF))
Mention that consent to minor assaults in the course of e)eryday life is %enerally implied-
(.ilson ) 3rin%le (@PQS))
Refer to %olic# +ecisions restrictin% the a)ailability of consent as a defence e% not to
pri/e5;%htin% +ith bare ;sts ( 8oney (@QQF), nor to a%reein% to settle dierences by
means of a ;%ht or duel ( A5M!s Reference 6o"A of @PQG- nor to sado5masochistic acti)ities
deemed to be a%ainst the public interest ( &ro+n
9ndicate +ith a%%ro%riate citation t'at a tre consent ma# e)cse &'at &ol+
ot'er&ise !e an assalt &'ere t'ere are e)ce%tions to t'e rle in A=- Ref *No L
FGJC, e(
@) Sr(er#7 in;ections7 tattooin(7 !o+# %iercin( for cosmetic %r%oses
8orbett ) 8orbett- .ilson- AOB: 8onsider the social utility of sur%ical treatment as a
<usti;cation for the defence +hether or not the patient is conscious and capable of
%i)in% consent-
F) P'#sical contact s%orts ( &illin%hurst- &arnes" AOB: 8onsider the policy that
allo+s consent as an eecti)e defence to a char%e of in<ury sustained in the course
of properly conducted sport or %ames but reco%nises that an assault may be
prosecuted should a participant e*ceed +hat is allo+able +ithin the rules of that
sport or %ame- 8onsider the factors that +ill be ta1en into account +hen ma1in%
this determination (the type of sport, the le)el at +hich it +as played, the nature of
the act, the de%ree of force, the e*tent of the ris1 of in<ury- D!s state of mind!"
AOB: 8onsider the distinction bet+een deliberate and accidental harm in:icted in
physical contact sports, deliberate harm is the essence of bo*in% but unacceptable
in a )ariety of ball sports such as football, ru%by or hoc1ey ( &illin%hurst- &arnes
T) Se)al relations Dono)an- &ro+n- AOB Consi+erations: 8onsider the reasons
for the decisions %i)en in &ro+n and .ilson- 2lin%sby" 8onsider +hen and +hy it is
appropriate for the la+ to interfere +ith indi)idual freedom of choice on the %rounds
of public interest" The la+ does not readily tolerate the idea of consent bein% a
defence to in<uries in:icted for se*ual %rati;cation, althou%h they seem to be more
tolerant of heterose*ual se*ual acti)ity (.ilson- 2lin%sby) than of homose*ual
(&ro+n)" 9n &ro+n the acts +ere )ie+ed dierently ( as acts of )iolence +ith a
se*ual moti)e rather than se*ual acts that in)ol)ed )iolence" The )iolence in &ro+n
+as considered to be indul%ence of cruelty by sadists and the de%radation of
)ictims +hich is in<urious and unpredictably dan%erous" The ,a+ ,ords decided that
a )ictim could %i)e )alid consent to A&' but not M&'" They didn!t criminalise all
sado5masochistic acti)ity" ,ord 2lynn thou%ht that the +hole area +as for
3arliament to decide"
The 'RA @PPQ has not aected the area too %reatly (in ,as1ey, >a%%ard and &ro+n )
=B and in Lmmet (@PPP) the L8'R upheld the decision in &ro+n" 2ayin% that the
public authorities may interfere +ith the e*ercise of the ri%ht to respect for pri)acy
and family life pro)ided it +as necessary in the interests of national security or
public safety or the economic +ell5bein% of the country, for the pre)ention of
disorder or crime, for the protection of health or morals or for the protection of the
ri%hts and freedoms of others"
W) Ro(' 'orse%la# (>ones- Ait1en)
H, la&fl %arental c'astisement
8onsent must be real ( the fact that V apparently consents to D!s act does not mean that
the la+ +ill treat that consent as )alid" 9f V is a child, or mentally disabled, this apparent
consent may not su4ce" (&urrell ) 'armer (@PAS))" #raud only ne%ati)es consent to an
assault if V +as decei)ed as to the identity of the person concerned or the nature of the
act performed (- Richardson (dentist case)- Tabassum (the breast fondlin% case)- 8uerrier-
Dica- Bon/ani- ('9V cases) ( biolo%ical M&' as althou%h V consented to se*, they did not
consent to the ris1 of the transmission of '9V"
'onest mista1en belief in consent is a defence (Mor%an)"
LIAM N=L2T9762
PROBLEM AUESTION 1 NON FATALS AN/ RELEVANT /EFENCES
.ayne is the captain of the 6orthport =nited football team" Durin% an important
match a%ainst their local ri)als, .ayne is in)ol)ed in a clash of heads in an incident
+ith an opposin% player, Andre+" .ayne recei)es a nasty bruise abo)e his left eye
and is badly concussed" .ayne insists on continuin% after treatment +ith a cold
spon%e but is ob)iously still in a )ery da/ed condition" A fe+ minutes later .ayne
<umps +ildly into a foul tac1le on Andre+" Andre+ is carried o in a%ony and I5Rays
later re)eal that he has bro1en an An1le"
Discuss Andre+ and .ayne!s liability for any oences and any possible defences"
An+re&:
O$ence:
A bruise may amount to an assault occasionin% actual bodily harm contrary to s"WS
7A3A @QA@ as lon% as it interferes +ith the health or comfort of .ayne (Miller @PHW)"
9t +ould seem from his badly concussed state that this is the case" The 832
char%in% standards reco%nise that althou%h any in<ury that is more than transient or
tri:in% can be classi;ed as actual bodily harm, the appropriate char%e +ill be
common assault if the in<uries amount to no more than ‘%ra/es, scratches,
abrasions, minor bruisin%, s+ellin%, reddenin% of the s1in, super;cial cuts, and blac1
eye!s" =nless a%%ra)atin% features e*ist (of +hich there is no e)idence) the bruise
alone may only amount to a s"TP char%e" Althou%h the concussion may ma1e it a
s"WS" Andre+ must display either intention or rec1lessness as to +hether .ayne
fears or is sub<ected to unla+ful force" 9f it can be pro)en that he +as sub<ecti)ely
rec1less in the 8unnin%ham sense then he +ould be %uilty of common assault or
A&' char%es"
/efences:
8onsent ( may be a)ailable as a defence" Althou%h consent is not a defence to A&'
as it is a%ainst the public interest (A5M!s Ref 6oA), properly conducted %ames and
sports pro)ide a rele)ant e*ception in this case" Andre+ +ill therefore only be liable
if he caused .ayne!s in<uries outside of the rules of the sport (there is no e)idence
of this) or if it +as pro)en that althou%h durin% a match, his conduct +as su4ciently
%ra)e to be properly cate%orised as criminal (&arnes FGGW)" 9t is li1ely that Andre+
+ould successfully use consent as a defence"
5a#ne
O$ences:
The in<ury that Andre+ has sustained as a result of .ayne!s foul tac1le may amount
to ‘serious harm! and could be char%ed under either the basic intent s"FG
(unla+fully and maliciously +oundin% or in:ictin% any %rie)ous bodily harm) or the
speci;c intent s"@Q (unla+fully and maliciously +oundin% or causin% %rie)ous bodily
harm +ith intent)" The char%e +ill depend upon .ayne!s mens rea (did he intend to
cause serious harm (s"@Q) or +as he merely sub<ecti)ely rec1less as to in:ictin%
some harm (s"FG)" .ith a s"FG oence, there 9s no need for .ayne to ha)e foreseen
the le)el of serious in<ury as lon% as some harm +as foreseen in the 8unnin%ham
sense (3armenter)" 9f intent can not be pro)en on a char%e of s"@Q then .ayne +ill
li1ely to be found %uilty of a s"FG oence +hich has a ma*imum sentence of H
years"
/efences:
Consent (Althou%h consent is not a defence to A&' as it is a%ainst the public
interest (A5M!s Ref 6oA), properly conducted %ames and sports pro)ide a rele)ant
e*ception in this case" .ayne +ill therefore only be liable if he caused Andre+!s
in<uries outside of the rules of the sport (there is e)idence of this as it +as a #7=,
tac1le +here he has <umped +ildly) or if it +as pro)en that althou%h durin% a match,
his conduct +as su4ciently %ra)e to be properly cate%orised as criminal (&arnes
FGGW)" The breach of the rules of the sport must be serious" 9t is li1ely that Andre+
+ould be unsuccessful in usin% this defence" Andre+ has consented to bein%
tac1led, but he hasn!t consented to +ild tac1les that constitute a foul"
Atomatism ( Automatism +as de;ned in &ratty as ‘an act done by the muscles
+ithout any control by the mind!" 6on5insane automatism is a defence because the
act is done by the D in)oluntarily and the mens rea is not present" The cause of the
automatism must be e*ternal" 9n this case .ayne has recei)ed a blo+ to the head
+hich has left him concussed, and da/ed" This is an e*ternal cause" 9t must ho+e)er
be pro)en that this e*ternal factor has resulted in ‘total destruction of )oluntary
control!" 3artial or reduced control of actions is not su4cient (A5M!s reference (6o F
of @PPF)" .ayne has a potential defence if it is found that his actions +ere as a
result of his concussion and not intentional or rec1less and that the concussion
caused him to lose A,, control"
Tyrone O 3ercy +ere best friends until Tyrone started %oin% out +ith 3ercy!s e*
%irlfriend, =na" Tyrone and =na +ere sittin% to%ether in the pub +hen Tyrone
recei)ed a te*t messa%e from 3ercy +hich said: ‘9!m +atchin% you" &e )ery afraid"!
=na read the te*t messa%e and turned pale +ith fri%ht" 2econds later, Tyrone +as hit
on the bac1 of the head by an empty beer can thro+n by 3ercy" Tyrone decided that
it +as time he and 3ercy ended their $uarrel, so he located 3ercy amon% the cro+d
of drin1ers and su%%ested they settle their dierences as they al+ays did, +ith a
friendly ;st ;%ht" Tyrone could see that 3ercy +as )ery drun1, and thou%ht that no
harm could come of it" 3ercy consented to the plan and the t+o youn% men s$uared
up to one another in the street outside the pub" 6ot +antin% to hurt 3ercy, Tyrone
deli)ered a loose punch +ith barely %ra/ed 3ercy!s face" 3ercy retaliated +ith a blo+
that 1noc1ed out one of Tyrone!s teeth" A passer5by, Austin, sa+ the blood comin%
from Tyrone!s mouth and ran up to separate them" Thin1in% that he +as bein%
attac1ed, 3ercy 1ic1ed Austin in the stomach, causin% him serious internal in<uries"
8onsider +hether 3ercy and Tyrone may ha)e committed any oence(s) ta1in% into
account any defences +hich mi%ht be a)ailable to them" JFHK
AOF /EFINITIONS REAUIRE/
Llements of assault and battery at common la+: 8riminal >ustice Act @PQQ
s"TP
A%%ra)ated assaults: 7A3A @QA@ ss"WS, @Q, FG
9nto*ication: distinction bet+een crimes of basic and speci;c intent
2elf defence, Mista1e
Reasonable force in the pre)ention of crime: 8riminal ,a+ Act @PAS s"T
T#rone
• 8ould be %uilty of assault and battery a%ainst 3ercy 5 force used +ould not
amount to one of the a%%ra)ated assaults
• Defences ( ar%uable that Tyrone lac1s mens rea of assault, but a%ainst this,
he clearly intends 3ercy to thin1 that they are %oin% to ha)e a real ;%ht, so he
presumably intends 3ercy to apprehend immediate unla+ful force"
• 8onsent ( 3ercy!s consent +ould be rele)ant since the force used does not
amount to A&'" 8onsent +ould not normally apply to a ;st ;%ht but it could
be ar%ued that, on the facts, this is no more than horseplay, as in >ones and a
case of mista1en consent"
Perc#
• 8ould be %uilty of assault a%ainst Tyrone and =na, as this can be committed
by +ords alone: 9reland, &ursto+" D!s conduct must cause V to fear
immediate unla+ful force"
• May be %uilty of a battery a%ainst Tyrone ( hittin% him on the head +ith an
empty beer can could be a battery, althou%h not assailt, since Tyrone did not
see it comin% and so +ould not ha)e been put in fear of immediate unla+ful
force"
• May be %uilty of an a%%ra)ated assault a%ainst Tyrone ( 1noc1in% his tooth
out +ould most li1ely amount to A&' under s"WS
• May be %uilty of a%%ra)ated assault a%ainst Austin ( s"@Q +oundin% or
causin% serious bodily harm
• 3ossible defences ( Ma<e+s1i ( into*ication can be a defence to a crime of
speci;c intent but not basic intent, so could not plead absence of mens rea
due to into*ication in relation to assault on =na and Tyrone or the battery
a%ainst Tyrone +ith the beer can" 8ould plead that he did not ha)e intention
to cause M&' to Austin, (that he +as so drun1 that he +as incapable of
formin% the intent re$uired)"
• 8annot rely on a mista1en belief in the need for self defence caused by
into*ication (drun1en mista1e)( 7!Mrady, follo+ed in 7!8onnor and con;rmed
in 'atton (FGGH)
• 8onsent ( mi%ht be possible to ar%ue horseplay in relation to Tyrone, but
unli1ely"
T'e T'eft Act FGLJ7 s< F
De;nes theft as:
/$ erson is guilty of theft if he !ishonestly aroriates roerty
belonging to another with the intention of ermanently !eriving the
other of it",
The Act then %oes on in the ne*t ;)e sections to %i)e some help +ith the meanin%
of the +ords in the de;nition"
Acts Res of T'eft
%aroriates roerty belonging to another"&
There are three elements to this:
@" Appropriation
F" 3roperty
T" &elon%in% to another
A%%ro%riation 1 s< D *F,
Uan# assm%tion !# a %erson of t'e ri('ts of an o&ner amonts to an
a%%ro%riation, and this includes, +here he has come by the property (innocently
or not) +ithout stealin% it, any later assumption of a ri%ht to it by 1eepin% or dealin%
+ith it as o+ner"E
 2o, appropriation is much +ider than a pic1poc1et ta1in% a +allet from
someone!s poc1et"
 The thief must do somethin% +hich assumes (ta1es o)er) one of the o+ner!s
ri%hts"
A%%ro%riation !# assmin( t'e ri('t to sell
Pit'am an+ 4e'l *FGKK,
Facts of t'e case
The defendant had sold furniture belon%in% to another person"
Princi%le of t'e case
This +as held to be an appropriation" The oer to sell +as an assumption of the
ri%hts of an o+ner O the appropriation too1 place at that point" 9t did not matter
+hether the furniture +as remo)ed from the house or not" L)en if the o+ner +as
ne)er depri)ed of the property D had still appropriated it by assumin% the ri%hts of
the o+ner to oer the furniture for sale"
A%%ro%riation !# assmin( t'e o&ner8s ri('t to +estro# %ro%ert#
 9f the defendant destroys property belon%in% to another he can be char%ed
+ith theft"
 Theft can also be char%ed +here the defendant does not destroy the other!s
property but thro+s it a+ay"
Morris *FGJD,
Facts of t'e case
The defendant had s+itched the price labels of t+o items in a supermar1et" 'e had
then put one of the items, +hich no+ had a lo+er price on it, into a bas1et and
ta1en the item to the chec1out, but it had not %one throu%h the chec1out +hen he
+as arrested" 'is con)iction for theft +as upheld"
Princi%le of t'e case
,ord Ros1ill: Uit is enou%h for the prosecution if they ha)e pro)ed[the assumption
of any of the ri%hts of the o+ner of the %oods in $uestion"E
Consent to t'e a%%ro%riation
La&rence *FGKF,
Facts of t'e case
An 9talian student, +ho spo1e )ery little Ln%lish arri)ed at Victoria 2tation and
sho+ed an address to ,a+rence, a ta*i dri)er" The <ourney should ha)e cost HGp,
but ,a+rence told him it +as e*pensi)e" The student oered ,a+rence a \@ note"
,a+rence said that this +as not enou%h" The student opened his +allet and
,a+rence helped himself to another \A"
,a+rence ar%ued that he had not appropriated the property because the student
had consented to him ta1in% it"
Princi%le of t'e case
The 87A and the '7, re<ected this ar%ument and held that there +as an
appropriation"
-ome2 *FGGD,
Facts of t'e case
The defendant +as the assistant mana%er of a shop" 'e persuaded the mana%er to
sell electrical %oods +orth o)er \@S, GGG to an accomplice and to accept payment
by t+o che$ues, tellin% the mana%er they +ere as %ood as cash" The che$ues +ere
stolen and had no )alue" The defendant +as con)icted of the theft of the %oods"
Princi%le of t'e case *Cort of A%%eal,
The 87A $uashed the con)iction relyin% on the <ud%ment in Morris that there had to
be an ‘ad)erse interference! for an appropriation"
Princi%le of t'e case *4ose of Lor+s,
'7, held that an appropriation had ta1en place O that there +as no need for
ad)erse interference +ith or usurpation of some ri%ht of the o+ner" To !e (ilt# of
t'eft t'e / nee+ not +o an#t'in( contrar# to t'e o&ner8s &is'es<
Consent &it'ot +ece%tion
4in9s *BCCC,
Facts of t'e case
The defendant +as a TQ year old +oman +ho had befriended a man +ho had a lo+
9N and +as )ery na])e" 'e +as, ho+e)er, mentally capable of understandin% the
concept of o+nership and ma1in% a )alid %ift" 7)er a period of ei%ht months the
defendant accompanied the man on numerous occasions to his buildin% society
+here he +ithdre+ money" The total +as about \AG,GGG and this money +as
deposited in the defendant!s account" The man also %a)e the defendant a TV"
The defendant +as con)icted of theft of the money and the TV after the <ury +ere
directed to consider +hether the man +as so incapable that the defendant herself
realised that ordinary and decent people +ould re%ard it as dishonest to accept a
%ift from him"
Princi%le of t'e case
7n appeal, it +as ar%ued that if the %ift +as )alid, the acceptance of it could not be
theft" '7, dismissed the appeal (TRF)" For of t'e ;+(es +eci+e+ t'at7 e"en
t'o(' t'e %ro%ert# &as a "ali+ (ift7 t'ere &as an a%%ro%riation<
,ord 'obhouse dissented, rulin% that there could not be an appropriation in these
circumstances"
A later assm%tion of a ri('t
s" T(@) ma1es it clear that there can also be an appropriation +here the defendant
ac$uires property +ithout stealin% it, but then later decides to 1eep or deal +ith the
property as o+ner"
The appropriation ta1es place at the point of ‘1eepin%! or ‘dealin%"!
L"%" the defendant borro+s a bicycle but then sells it or %i)es it a+ay"
Pro%ert# 1 s< E *F,
M Pro%ert# incl+es mone# an+ all ot'er %ro%ert# real or %ersonal7
incl+in( t'in(s in action an+ ot'er intan(i!le %ro%ert#<P
 Money
 Real property ( land and buildin%s
 3ersonal property 5 all mo)eable items (boo1s, <e+ellery, 8Ds, cars,
aeroplanes)
 Thin%s in action ( ban1 account
 7ther intan%ible property ( e*port $uota, patent
Personal %ro%ert#
:ell# an+ Lin+sa# *FGGJ,
Facts of t'e case
Belly +as a sculptor +ho as1ed ,indsay to ta1e body parts from the Royal 8olle%e of
2ur%eons +here he +or1ed as a laboratory assistant" Belly made casts of the parts"
They +ere con)icted of theft and appealed on the %round that body parts +ere not
property"
Princi%le of t'e case
The 87A held that, thou%h a dead body +as not normally +ithin the de;nition of the
Theft Act, the body parts +ere property as they had ac$uired ‘dierent attributes by
)irtue of the application of s1ill, such as dissection or preser)ation techni$ues, for
e*hibition or teachin% purposes"!
Real Pro%ert#
Real property is the le%al term for land and buildin%s"
2" W (F) states +hen land can be stolen:
 .here a trustee or personal representati)e ta1es land in breach of his duties-
 2omeone not in possession of land se)ers anythin% formin% part of the land
from the land-
 A tenant ta1es a ;*ture or structure from the land let to him"
9n @PSF a man +as prosecuted for stealin% 8lec1heaton Rail+ay station by
dismantlin% it and remo)in% it"
T'in(s in action
 A thin% in action is a ri%ht +hich can be enforced a%ainst another person by
an action in la+" The ri%ht itself is property under s" W"
 Ban9 accont: the ban1 does not 1eep coins or ban1notes for each
customer!s account in a separate bo*" 9nstead the customer has a ri%ht to the
payment of amount in his account" 2o, if the defendant causes the ban1 to
debit another person!s account he has appropriated a thin% in action"
 A c'e6e itself is a thin% in action, but it is also a piece of paper +hich is
property +hich can be stolen, and it is a ‘)aluable security! +hich can be
stolen under the de;nition of property"
Ot'er intan(i!le %ro%ert#
This refers to other ri%hts +hich ha)e no physical presence but can be stolen under
the Theft Act"
A- for 4on( :on( " C'an Nai=:en( *FGJK,
An e*port $uota for te*tiles +as intan%ible property +hich could be stolen"
O)for+ " Moss *FGKG,
Facts of t'e case
The defendant +as a =ni)ersity student +ho ac$uired an e*amination paper he +as
due to sit" 9t +as accepted that the defendant did not intend to permanently depri)e
the =ni)ersity of the piece of paper on +hich the $uestions +ere printed" &ut he
+as char%ed +ith theft of con;dential information (i"e" 1no+led%e of the $uestions)"
Princi%le of t'e case
'e +as found not %uilty" Bno+led%e of the $uestions +as held not to be property"
T'in(s &'ic' cannot !e stolen
 s" W (T):
UA person +ho pic1s ms'rooms (ro&in( &il+ on any land, or +ho pic1s :o+ers,
fruit or folia%e from a %lant (ro&in( &il+ on any land, does not (althou%h not in
possession of the land) steal +hat he pic1s, unless he does it for re+ard or sale or
other commercial purpose"E
 2" W (W):
U&il+ creatres7 tame+ or ntame+, shall be re%arded as property- but a person
cannot steal a +ild creature not tamed nor ordinarily 1ept in capti)ity, or the
carcase of any such creature, unless it has been reduced into possession by or on
behalf of another person O possession of it has not been lost or abandoned, or
another person is in course of reducin% it into possession"E
Belon(in( to Anot'er s< H *F,
M%ro%ert# s'all !e re(ar+e+ as !elon(in( to an# %erson 'a"in( %ossession
or control of it7 or 'a"in( in it an# %ro%rietar# ri('t or interest *not !ein(
an e6ita!le interest arisin( onl# from an a(reement to transfer or (rant
an interest<P
Trner *no B, *FGKF,
Facts of t'e case
The defendant left his car at a %ara%e for repairs" 9t +as a%reed that he +ould pay
for the repairs +hen he collected the car after the repairs had been completed"
.hen the repairs +ere almost ;nished the %ara%e left the car par1ed on the
road+ay outside their premises" The defendant used a spare 1ey to ta1e the car
durin% the ni%ht +ithout payin% for the repairs"
Princi%le of t'e case
The 87A held that the %ara%e +as in possession or control of the car and so the
defendant could be %uilty of stealin% his o+n car"
Pro%ert# recei"e+ n+er an o!li(ation s< H *D,
/.here a erson receives roerty from or on account of another* an! is
un!er an obligation to the other to retain an! !eal with that roerty or
its rocee!s in a articular way* the roerty shall be regar!e! 0as
against him1 as belonging to the other",
4all *FGKB,
Facts of t'e caseFacts
The defendant +as a tra)el a%ent +ho recei)ed deposits from clients for air trips to
America" The defendant paid these deposits into the ;rm!s %eneral account but
ne)er or%anised any tic1ets and +as unable to return the money"
Princi%le of t'e case
'e +as con)icted of theft but on his appeal his con)iction +as $uashed because
+hen the defendant recei)ed the deposits he +as not under an obli%ation to deal
+ith it in a particular +ay" The 87A stressed that each case depended on its o+n
facts"
:line!er( an+ Mars+en *FGGG,
Facts of t'e case
The t+o defendants operated a company +hich sold timeshare apartments in
,an/arote to customers in Ln%land" Lach purchaser paid the purchase price on the
understandin% that the money +ould be held by an independent trust company
until the apartment +as ready for the purchaser to occupy"
7)er \HGG,GGG +as paid to the defendant!s company but only \FTT +as actually
paid into the trust company!s account"
Princi%le of t'e case
The defendant!s +ere %uilty of theft as it +as clear that they +ere under an
obli%ation to the purchasers ‘to retain and deal +ith that property or its proceeds in
a particular +ay! deal that they had not done this"
/a"i+(e " Brnett *FGJE,
Princi%le of t'e case
The defendant +as %uilty of theft +hen she +as %i)en money by her :atmates to
pay the %as bill but instead used it to buy 8hristmas presents"
Pro%ert# (ot !# mista9e 1 s< H *E,
A-8s Ref *No F of FGJD, *FGJH,
Facts of t'e case
The defendant!s salary +as paid into her ban1 account by transfer" 7n one occasion
her employers o)erpaid her by \SW"SW" 2he +as ac$uitted but the prosecution as1ed
the 87A to rule on +hether a person in this situation +ho dishonestly decided not to
repay the money +ould be %uilty of theft"
Princi%le of t'e case
87A held that s" H (W) clearly pro)ided for this type of situation" The defendant +as
under ‘an obli%ation to ma1e restoration! and if there +as a dishonest intention not
to ma1e restoration then all the elements of theft +ere present"
-il9s *FGKB,
Facts of t'e case
The defendant placed a bet on a horse race" The boo1ma1er had made a mista1e
about +hich horse the defendant had bac1ed and o)erpaid the defendant" The
defendant realised the error and decided not to return the money"
Princi%le of t'e case
As bettin% transactions are not enforceable at la+ s" H (W) did not apply and the
defendant +as not %uilty"
Mens Rea of T'eft
There are t+o elements to this:
@" Dishonest
F" 9ntention
Be'a"ior &'ic' is not +is'onest 1 s< B
A person!s appropriation of property belon%in% to another is not to be re%arded as
dishonest if he appropriates the property in the belief that:
@" 'e has in la+ the ri%ht to depri)e the other of it, on behalf of himself or a T
rd

person or
F" 'e +ould ha)e the other!s consent if the other 1ne+ of the appropriation and
the circumstances of it or
T" The person to +hom the property belon%s cannot be disco)ered by ta1in%
reasonable steps"
9f the defendant had a %enuine belief in one of these three then he is not %uilty of
theft"
&ein% +illin% to pay is still dishonest ( s" F (F)
T'e -'os' test
-'os' *FGJB,
Facts of t'e case
Mhosh +as a doctor actin% as a locum consultant in a hospital" 'e claimed fees for
an operation he had not carried out" 'e said that he +as not dishonest as he +as
o+ed the same amount for consultant fees"
Princi%le of t'e case
The 87A decided that the test for dishonesty has both an ob<ecti)e and a sub<ecti)e
element to it" These are:
 .as +hat +as done dishonest accordin% to the ordinary standards of
reasonable and honest peopleV
 Did the D realise that +hat he +as doin% +as dishonest by those standardsV
Intention of %ermanentl# +e%ri"in(
Velm#l *FGJG,
Facts of t'e case
The defendant, a company mana%er, too1 \@,GHG from the o4ce safe" 'e said that
he +as o+ed money by a friend and that he +as %oin% to replace the money +hen
that friend repaid him"
Princi%le of t'e case
The 87A upheld his con)iction for theft as he had the intention of permanently
depri)in% the company of the ban1notes +hich he had ta1en from the safe, e)en if
he intended replacin% them +ith other ban1notes to the same )alue later"
/PP " La"en+er *FGGE,
Facts of t'e case
The defendant too1 doors from a council property +hich +as bein% repaired and
used them to replace dama%ed doors in his %irlfriend!s council :at" The doors +ere
still in the possession of the council but had been transferred +ithout permission
from one council property to another"
Princi%le of t'e case
The Di)isional 8ourt held that the $uestion +as +hether he intended to treat the
doors as his o+n, re%ardless of the ri%hts of the council" The ans+er to this +as yes,
so the D +as %uilty of theft"
Borro&in( or len+in(
Llo#+ *FGJH,
Facts of t'e case
The pro<ectionist at a local cinema %a)e the defendant a ;lm that +as sho+in% at
the cinema so that the defendant could ma1e an ille%al copy" The defendant
returned the ;lm in time for the ne*t screenin% at the cinema"
Princi%le of t'e case
'is con)iction for theft +as $uashed because, by returnin% the ;lm in its ori%inal
state, it +as not possible to pro)e an intention permanently to depri)e"
&orro+in% is not theft unless it is for a period and in circumstances ma1in% it
e$ui)alent to an outri%ht ta1in% or disposal" This means 1eepin% the property until
‘the %oodness, the )irtue, the practical )alue has %one out of the article"!
Ro!!er# 1 T'eft Act s< J
9n eect it is a theft +hich is a%%ra)ated by the use of force"
/$ erson is guilty of robbery if he steals* an! imme!iately before or at
the time of !oing so* an! in or!er to !o so* he uses force on any erson or
uts or seeks to ut any erson in fear of being then an! there subjecte!
to force",
Acts Res for Ro!!er#
 Theft +
 #orce or puttin% or see1in% to put any person in fear of force"
9n addition, there are t+o conditions on the force and these are that it must be
immediately before or at the time of the theft and it must be in order to steal"
Com%lete+ t'eft
 There must be a completed theft for a robbery to ha)e been committed"
 All of the elements of theft must be present"
Ro!inson *FGKK,
Facts of t'e case
The defendant ran a clothin% club and +as o+ed \S by )ictim!s +ife" The defendant
approached the )ictim and threatened him" Durin% a stru%%le the man dropped a \H
note and the defendant too1 it, claimin% he +as still o+ed \F"
Princi%le of t'e case
The defendant!s con)iction for robbery +as $uashed because the trial <ud%e had
+ron%ly directed the <ury that the defendant had honestly to belie)e he +as entitled
to %et the money in that +ay" 9n fact if the defendant had a %enuine belief that he
had a ri%ht in la+ to the money, then his actions +ere not dishonest under s" F (@)
(a) TA @PAQ"
 .here force is used to steal, then the moment the theft is complete there is a
robbery"
Corcoran " An+erton *FGJC,
Facts of t'e case
7ne of the defendant!s hit a +oman in the bac1 and tu%%ed at her ba%" 2he let %o of
the ba% and it fell to the %round" The defendant!s ran o +ithout the ba% (because
the +oman +as screamin% and attractin% attention)"
Princi%le of t'e case
9t +as held that the theft +as complete so the defendant!s +ere %uilty of robbery"
Force or t'reat of force
/a&son an+ >ames *FGKL,
Facts of t'e case
7ne of the defendant!s pushed the )ictim causin% him to lose his balance +hich
enabled the other defendant to ta1e his +allet" They +ere con)icted of robbery"
Princi%le of t'e case
The 87A held that ‘force! +as an ordinary +ord and it +as for the <ury to decide if
there had been force"
Clo+en *FGJK,
Facts of t'e case
The 87A held that the defendant +as %uilty of robbery +hen he had +renched a
shoppin% bas1et from the )ictim!s hand" The 87A held that the trial <ud%e +as ri%ht
to lea)e the $uestion of +hether the defendant had used force a%ainst a person to
the <ury"
Princi%le of t'e case
n any %erson
The person threatened does not ha)e to be the person from +hom the theft occurs"
Force imme+iatel# !efore or at t'e time of t'e t'eft
'ale (@PSP)
Facts of t'e case
The t+o defendant!s 1noc1ed on the door of a house" .hen a +oman opened the
door they forced their +ay into the house" 7ne defendant put his hand o)er her
mouth to stop her screamin% +hile the other defendant +ent upstairs to see +hat
he could ;nd to ta1e" 'e too1 a <e+ellery bo*" &efore they left the house they tied
up the householder" 7n appeal the defendant!s ar%ued that the theft +as complete
as soon as the second defendant pic1ed up the <e+ellery bo*, so the use of force in
tyin% up the householder +as not at the time of stealin%"
Princi%le of t'e case
The 87A upheld their con)ictions" The 87A thou%ht that the <ury could ha)e come
to the decision that there +as force immediately before the theft +hen one of the
defendant!s put his hand o)er the householder!s mouth" 9n addition, the 87A
thou%ht that the tyin% up of the householder could also be force for the purpose of
robbery as the theft +as still on%oin%"
Loc9le# *FGGH,
Facts of t'e case
The defendant +as cau%ht shopliftin% cans of beer from an o5licence" 'e used
force on the shop1eeper +ho tried to stop him from escapin%"
Princi%le of t'e case
,oc1ley appealed on the basis that the theft +as complete +hen he used the force,
but the 87A follo+ed the decision in 'ale and held that he +as %uilty"
Force in or+er to steal
 9f the force +as not used in order to steal, then any later theft +ill not be a
robbery"
 L"%" the defendant has an ar%ument +ith the )ictim and punches him,
1noc1in% him out" The defendant then sees that some money has fallen out
of the )ictim!s poc1et and decides to ta1e it" The force +as not used for the
purpose of that theft and the defendant is not %uilty of robbery, but %uilty of
t+o separate oences: an assault and theft"
Mens Rea for Ro!!er#
 The defendant must ha)e the Mens Rea for theft
 The defendant must be dishonest and must intend permanently to depri)e
the other of the property" 'e must also intend to use force to steal"
Br(lar# 1 T'eft Act s< G
2" P pro)ides t+o dierent +ays in +hich bur%lary can be committed:
-" 20310a1 a erson is guilty of burglary if he enters any buil!ing or
art of a buil!ing as a tresasser with intent to steal* in4ict #56* or
!o unlawful !amage to the buil!ing or anything in it"
s" 20310b1 a erson is guilty of burglary if* having entere! a buil!ing
or art of a buil!ing as a tresasser* he steals or attemts to steal
anything in the buil!ing or in4icts or attemts to in4ict #56 on any
erson in the buil!ing"
s"2071 8he o'ences referre! to in subsection 0310a1 above are
o'ences of stealing anything in the buil!ing or art of the buil!ing
in question* of in4icting on any erson therein any grievous bo!ily
harm* an! of !oing unlawful !amage to the buil!ing or anything
therein"
s"2091 References in subsection 031 an! 071 above to as buil!ing* an!
the reference in subsection 0:1 to a buil!ing which is a !welling*
shall aly to any such vehicle or vessel when the erson having
habitation in it is not there as well as at times when he is"
The dierence is the intention at the time of entry" #or (a) the defendant must
intend to do one of the three listed oences (1no+n as ulterior oences) at the time
of enterin%" #or (b) +hat the defendant intends on entry is irrele)ant, but the
prosecution must pro)e that he actually committed or attempted to commit theft or
M&'"
Acts Res for Br(lar#
 Lntry
 7f a buildin% or part of a buildin%
 As a trespasser"
Entr#
Collins *FGKB,
The 87A said that the <ury had to be satis;ed that the defendant had made 5an
e6ecti%e * substantial entry.’
Bro&n *FGJH,
Facts of t'e case
The defendant +as standin% on the %round outside but leanin% throu%h a shop
+indo+ rumma%in% throu%h %oods" 'is feet and lo+er parts of his body +ere
outside the shop, but the top part of his body and arms +ere inside the shop"
Princi%le of t'e case
87A said that the +ord ‘substantial! did not materially assist the de;nition of ‘entry!
O his con)iction for bur%lary +as upheld as clearly in this situation his entry +as
eecti)e"
R#an *FGGL,
Facts of t'e case
The defendant +as trapped +hen tryin% to %et throu%h a +indo+ at F"TGam" 'is
hand and ri%ht arm +ere inside the house" The ;re bri%ade released him" This could
scarcely be said to be an ‘eecti)e! entry"
Princi%le of t'e case
The 87A upheld his con)iction for bur%lary, sayin% that there +as e)idence on
+hich the <ury could ;nd that the defendant had entered"
Bil+in(
9ncludes: 'ouseboats, cara)ans, houses, bloc1s of :ats, o4ces, factories,
outbuildin%s, sheds"
B an+ S " Leat'le# *FGKG,
Facts of t'e case
A FH foot lon% free/e container +hich had been in a farmyard for o)er t+o years
+as used as a stora%e facility" 9t rested on sleepers, had doors +ith loc1s and +as
connected to the electricity supply"
Princi%le of t'e case
This +as held to be a buildin%"
Norfol9 Consta!lar# " See9in(s . -ol+ *FGJL,
Facts of t'e case
A lorry trailer +ith +heels +hich had been used for o)er a year for stora%e had
steps, and +as connected to the electricity supply +as held not to be a buildin%"
Princi%le of t'e case
The fact that it had +heels meant that it remained a )ehicle"
Part of a !il+in(
5al9in(ton *FGKG,
Facts of t'e case
The defendant +ent into a counter area in a shop and opened a till" This area +as
clearly mar1ed by a three5sided counter"
Princi%le of t'e case
The defendant!s con)iction for bur%lary under s" P (@) (a) +as upheld as he had
entered part of a buildin% (the counter area) as a trespasser +ith the intention of
stealin%"
As a tres%asser
Collins *FGKB,
Facts of t'e case
The defendant +as drun1 and +anted to ha)e se*ual intercourse" 'e sa+ an open
+indo+ and climbed a ladder to loo1 in" 'e sa+ there +as a na1ed %irl asleep in
bed" 'e then +ent do+n the ladder, too1 o all his clothes e*cept for his soc1s and
climbed bac1 up the ladder to the %irl!s bedroom" As he +as on the +indo+ sill
outside the room, she +o1e up, thou%ht it +as her boyfriend and helped him into
the room +here they had se*"
8ollins +as con)icted of bur%lary under s" P (@)(a) i"e" that he had entered as a
trespasser +ith intent to rape" 'e appealed on the basis that he +as not a
trespasser as he had been in)ited in" The 87A $uashed his con)iction because there
+as no e)idence that he +as a trespasser- the %irl had in)ited him in"
Princi%le of t'e case
The 87A said that there could not be a con)iction for enterin% premises as a
trespasser unless the person enterin% did so either 1no+in% he +as a trespasser or
+as rec1less as to +hether or not he +as enterin% the premises of another +ithout
the other person!s consent"
-oin( !e#on+ %ermission
Smit' an+ >ones *FGKL,
Facts of t'e case
2mith O >ones +ent to 2mith!s father!s house in the middle of the ni%ht and too1
t+o tele)ision sets +ithout the father!s permission or 1no+led%e" The father stated
that his son +ould not be a trespasser in the house- he had a %eneral permission to
enter"
Princi%le of t'e case
The 87A upheld their con)ictions for bur%lary ( he had %one beyond his %eneral
permission to enter by remo)in% the TV!s"
Mens Rea for Br(lar#
There are t+o parts to the Mens Rea in bur%lary:
 Lnterin% as a trespasser- and
 The ulterior oence"
#or both (a) and (b) the defendant must 1no+ or be sub<ecti)ely rec1less, as to
+hether he is trespassin%"
9n addition, for (a) the defendant must ha)e the intention to commit theft or M&' or
criminal dama%e at the time of enterin% the buildin%"
#or (b) the defendant must also ha)e the Mens Rea for theft or M&' +hen
committin% (or attemptin% to commit) the Actus Reus of one of these oences in a
buildin%"
-eneral /efences
The 78R speci;cation re$uires that you study the follo+in% %eneral defences:
• 9nsanity
• Automatism
• 9nto*ication
• DuressR6ecessity
• 2elf DefenceRdefence of anotherRpre)ention of crime"
• 8onsent (please see your special study materials)
9nsanity
A denial of mens rea
The 2i%ni;cance of 9nsanity
 The defence of insanity is rarely used"
 9ts importance has been much reduced, particularly in murder cases by t+o
de)elopments:
@" The introduction of diminished responsibility in @PHS, and
F" The abolition of the death penalty in @PAH"
 9t is a %eneral defence and may be pleaded as a defence to any crime
re$uirin% a Mens Rea"
 7ften the defendant does not speci;cally raise the defence of insanity, but
places the state of his mind in issue by raisin% another defence" The $uestion
+hether such a defence, or a denial of Mens Rea really amounts to insanity is
a $uestion of fact for the <ud%e"
 9f the <ud%e decides that the e)idence does support the defence, then he
should lea)e it to the <ury to determine +hether the defendant +as insane"
 9f the defendant is found to ha)e been insane at the time of committin% the
Actus Reus then the <ury should return a )erdict of ‘not %uilty by reason of
insanity! (s" @ 8riminal 3rocedure (9nsanity) Act @PAW), other+ise referred to
as the special )erdict"
 =ntil recently this )erdict obli%ed the <ud%e to order the defendant to be
detained inde;nitely in a mental hospital"
The M!6a%hten 8ase
M!6a%hten (@QWT)
M!6a%hten suered from e*treme paranoia" 'e thou%ht he +as bein% persecuted by
the ‘Tories!" 'e tried to 1ill a member of the Mo)ernment, 2ir Robert 3eel, but
instead 1illed his secretary" &ecause of his mental state he +as found not %uilty of
murder" 9n fact, he +as committed to a mental hospital because of his mental state
but this +as not the result of the )erdict"
The fact that he could be found %uilty and need not ha)e been sent to a mental
hospital caused a public outcry and led to the <ud%es in the '7, bein% as1ed to
clarify the la+ in respect of insanity"
The ans+ers to those $uestions ha)e created the rules on insanity +hich are used in
le%al cases today"
Uthe <urors ou%ht to be told in all cases that e)ery man is presumed to be sane, and
to possess a su4cient de%ree of reason to be responsible for his crimes, until the
contrary be pro)ed to their satisfaction- and that to establish a defence on the
%round of insanity it must be clearly pro)ed that, at the time of the committin% of
the act, the party accused +as labourin% under such a defect of reason, from
disease of the mind, as not to 1no+ the nature and $uality of the act he +as doin%,
or, if he did 1no+ it, that he did not 1no+ he +as doin% +hat +as +ron%"E
The M!6a%hten Rules
The main rule is that ‘e)ery man is presumed to be sane! until it is pro)ed
other+ise"
To pro)e a man +as insane, three elements must be established:
@" The defendant +as suerin% from a defect of reason-
F" 8aused by a disease of the mind-
T" .ith the conse$uence that the defendant did not 1no+ the nature and $uality
of his act- or did not 1no+ +hat he +as doin% +as +ron%"
Defect of Reason
This means that the defendant!s po+ers of reasonin% must be impaired"
'o+e)er, if the defendant is capable of reasonin% but has failed to use those
po+ers then this is not a defect of reason"
R ) 8lar1e (@PSF)
#acts of the case
The defendant +ent into a supermar1et and left +ithout payin% for three items
+hich she had placed in her handba%" 2he +as char%ed +ith theft but claimed in her
defence that she lac1ed the Mens Rea for theft on the basis of absent5mindedness
caused by diabetes and depression" The trial <ud%e ruled that this amounted to a
plea of insanity, at +hich point the defendant pleaded %uilty"
3rinciple of the case
The rules apply only to %ersons who by reason of !isease of the min!& are
!erive! of the ower of reasoning" 8hey !o not aly an! will never
aly to those who retain the ower of reasoning but who in moments of
confusion or absent(min!e!ness fail to use their owers to the full&"
Disease of the Mind
 The defect of reason must be due to a disease of the mind"
 This is a le%al term not a medical one" The disease can be a mental disease
or a physical disease +hich aects the mind"
R ) Bemp (@PHA)
#acts of the case
The defendant suered from arteriosclerosis (hardenin% of the arteries) +hich
restricted the :o+ of blood to the brain, causin% blac1outs" 9n this condition he
committed the Actus Reus of M&' (he hit his +ife +ith a hammer)" At the trial the
$uestion arose as to +hether this condition came +ithin the rules of insanity (i"e" a
‘disease of the mind!)"
3rinciple of the case
The defendant +as held to be insane because the la+ +as not concerned +ith the
brain but +ith the mind" The defendant!s ordinary mental faculties of reason,
memory and understandin% had been aected and so his condition came +ithin the
rules on insanity"
R ) 2ulli)an (@PQW)
#acts of the case
The defendant had suered from epilepsy since childhood" 'e +as 1no+n to ha)e
;ts and had sho+n a%%ression to those tryin% to help him durin% a ;t" 'e in<ured a
QG5year5old man durin% a friendly )isit to a nei%hbour!s house" The trial <ud%e ruled
that on the facts he +ould be directin% the <ury to return a )erdict of ‘not %uilty by
reason of insanity"! As a result of this, the defendant pleaded %uilty to A&'" The
defendant then appealed"
3rinciple of the case
&oth the 87A and '7, con;rmed the con)iction" The '7, ruled that the source of
the disease +as irrele)ant" 9t could be ‘or%anic, as in epilepsy, or functional!, and it
did not matter +hether the impairment +as ‘permanent or transient and
intermittent!, pro)ided that it e*isted at the time the defendant did the act"
Thus acts done durin% an epileptic ;t 0 insanity"
R ) 'ennessy (@PQP)
Facts of t'e case
The defendant +as a diabetic +ho had not ta1en his insulin for three days" 'e +as
seen to %et into a car +hich had been reported stolen and dri)e o" 'e +as char%ed
+ith ta1in% a motor )ehicle +ithout consent and dri)in% +hile dis$uali;ed" 'e had
no recollection of dri)in% the car"
Princi%le of t'e case
A diabetic, +ho falls into a hyper%lycaemic state, must be treated as pleadin%
insanity as it +as the disease itself (an internal factor) causin% the sei/ure"
R ) &ur%ess (@PP@)
#acts of the case
The defendant and his %irlfriend had been +atchin% )ideos" They fell asleep and in
his sleep the defendant attac1ed her" There +as no e)idence of an e*ternal cause
for the sleep+al1in% and a doctor at the trial %a)e e)idence that in this instance it
+as due to an internal cause: a sleep disorder"
The <ud%e ruled that this +as e)idence of insanity and the defendant +as found ‘not
%uilty by reason of insanity"!
3rinciple of the case
The 87A upheld this ;ndin%"
'o+e)er, if the sleep+al1in% is due to an e*ternal cause, such as a blo+ to the
head, then it is not insanity but it +ould allo+ the defendant to use the defence of
automatism"
L*ternal factors
.here the cause of the defendant bein% in a state, is not a disease, but an e*ternal
cause then this is not insanity"
R ) Nuic1 (@PST)
#acts of the case
The defendant +as a diabetic +ho had ta1en his insulin but not eaten enou%h" This
causes lo+ blood su%ar le)els +hich can aect the brain" 9n this state the
defendant, +ho +as a nurse at a mental hospital, assaulted a patient"
3rinciple of the case
The 87A rules that his condition did not come +ithin the rules of insanity" 9t +as
caused by an e*ternal matter: the dru% insulin" This meant that the defendant could
rely on the defence of automatism and +as entitled to be ac$uitted of the char%e"
3eople +ith diabetes +ho %o into a hyper%lycaemic state (hi%h le)els of blood su%ar
caused by lac1 of insulin) 0 insanity
3eople +ith diabetes +ho %o into a hypo%lycaemic state (lo+ le)els of blood su%ar
caused by insulin) 0 automatism
6ot 1no+in% the nature and $uality of the act
There are t+o +ays in +hich the defendant may not 1no+ the nature and $uality of
his acts"
These are:
a) &ecause he is in a state of unconsciousness or impaired consciousness- or
b) .hen he is conscious but due to his mental condition he does not understand
or 1no+ +hat he is doin%"
L"%" The defendant cuts a +oman!s throat but thin1s he is cuttin% a loaf of bread"
The defendant chops o a sleepin% man!s head because it +ould be amusin%
to see him loo1in% for it +hen he +a1es up"
7r not 1no+in% it +as +ron%
.here the defendant 1no+s the nature and $uality of his act he can still use the
defence of insanity if he does not 1no+ that +hat he did +as +ron%"
.ron% means le%ally +ron% not morally +ron%"
R ) .indle (@PHF)
#acts of the case
The defendant!s +ife constantly spo1e of committin% suicide" 7ne day the
defendant 1illed her by %i)in% her @GG aspirins" 'e %a)e himself up to the police and
said: ‘9 suppose they +ill han% me for this"!
3rinciple of this case
'e +as suerin% from mental illness, but these +ords sho+ed that he 1ne+ +hat he
had done +as le%ally +ron%" As a result he could not use the defence of insanity
and +as found %uilty of murder"
E"alation an+ reform
T'e !r+en of %roof rests &it' t'e +efen+ant
8ritics ha)e ar%ued that it is unfair that the burden is on the defendant to
pro)e, on the balance of probabilities, that he or she +as suerin% from
insanity" They say that this undermines the notion that the defendant is
innocent until pro)en %uilty by the prosecution"
T'e se of a le(al rat'er t'an a me+ical +e3nition
3erhaps the ma<or :a+ in this defence is that the courts use a le%al de;nition
of insanity rather than a medical one" 9n addition, the le%al de;nition dates
from @QWT and fails to ta1e account of the hu%e medical ad)ances that ha)e
occurred since then"
T'e rles are too !roa+
The classi;cation of diabetics, epileptics and sleep+al1ers as insane has
been criticised for su%%estin% that those suerin% from such conditions are a
dan%er to the public, +hereas this is far from the truth in the )ast ma<ority of
cases" Most people +ith such conditions are able to control them by ta1in%
medication"
Social Sti(ma: that can attach to an epileptic etc from a ;ndin% of ‘not
%uilty o+in% to insanity! can be far reachin%"
T'e rles are too narro&
The defence can rule out those +ho are medically insane if they 1no+ the
nature and $uality of their act or that it is le%ally +ron% but are nonetheless
unable to stop themsel)es from committin% it" T's7 t'ose at &'om t'e
+efence s'ol+ !e aime+ are na!le to rel# on it< #or e*ample in the
case of &yrne" 'e +as a se*ual psychopath +ho could not resist per)erse
ideas" 'e 1ne+ +hat he +as doin% +as +ron% and so couldn!t rely on the
defence of insanity but could rely on the defence of DR instead" &ut DR only
a)ailable for a char%e of murderD
The defences are eecti)ely established or rebutted by medical e*perts
rather than bein% decided upon by <urors ( doctors should not be deli)erin%
opinions on le%al or moral responsibility +hich are essentially <ury issues
potential for <ury confusion O misapplication o+in% to emotional
considerations, sympathy or crude ‘%ut reaction! e% 3eter 2utclie ( the
‘Xor1shire Ripper! +here psychiatrists +ere unanimous in a%reein% he +as a
paranoid schi/ophrenic yet he +as con)icted of murder-
Reform
Place t'e !r+en of %roof on t'e %rosection
The &utler 8ommittee and the 8riminal ,a+ Re)ision 8ommittee ha)e
su%%ested that, since it is part of mens rea, the burden of proof should be
re)ersed and placed on the prosecution rather than the defendant"
A ne& +efence
8ritics ar%ue that the only +ay for+ard is to abolish the M!6a%hten rules
alto%ether" 9nstead, a ne+ defence should be introduced" The &utler
8ommittee su%%ested that this should apply to defendants +ith a mental
disorder and should result in a )erdict of ‘not %uilty on e)idence of a mental
disorder!" This +ould a)oid the defendant bein% labelled insane" 7thers
su%%est that there is no need for such a defence at all and that those
suerin% from insanity should be dealt +ith outside the criminal <ustice
system"
INSANITY EIEMPLAR
9nsanity is a %eneral defence to A,, crimes +hereas diminished responsibility is a
special and partial defence to a char%e of murder 76,X"
The DL#L6DA6T must pro)e that he or she +as suerin% from insanity +hen he or
she committed the oence" This must be pro)ed on the &A,A68L 7#
3R7&A&9,9T9TL2" 8ritics ha)e ar%ued that this is unfair in that it undermines the
notion that the defendant is innocent until pro)en %uilty by the prosecution" The
&utler 8ommittee and the 8riminal ,a+ Re)ision 8ommittee ha)e su%%ested that,
since it is part of mens rea, the burden of proof should be re)ersed and placed on
the prosecution rather than the defendant
.hen the D is found to be insane the )erdict is ‘not %uilty by reason of insanity!"
=ntil the introduction of the 8riminal 3rocedure Act @PP@, this automatically meant
an inde;nite hospital stay and meant that defendants +ere particularly reluctant to
plead insanity, but no+ this only applies to murder"
9f the defendant is char%ed +ith another crime, the <ud%e can ma1e a hospital order,
a %uardianship order, super)ision and treatment order, or an absolute dischar%e" 9f
D is char%ed +ith murder then the <ud%e must impose an inde;nite hospital order"
The home secretary must consent to release"
9n the case of Mc6a%hten, it +as held that ‘the <urors ou%ht to be told in all cases
that e)ery man is presumed to be sane, and to possess a su4cient de%ree of reason
to be responsible for his crimes, unless pro)ed that he +as labourin% under such a
defect of reason, from disease of the mind, as not to 1no+ the nature and $uality of
the act he +as doin%, or, if he did 1no+ it, that he did not 1no+ he +as doin% +hat
+as +ron%"
T'e t'ree elements:
/efect of reason
D must sho+ that his or her ability to reason +as impaired" The basis of the defence
is the defendant!s depri)ation of the po+er of reasonin%" A defendant +ho still
possessed the po+ers of reasonin% but failed to use them cannot be classed as
insane" 9n 8lar1e (@PSF) it +as held that Defect of reason must be more than
absent min!e!ness or confusion"
/isease of t'e min+
This is a le%al term and not a medical one" The problem +ith this ha)e been made
apparent by the types of conditions that the courts ha)e accepted as constitutin% a
disease of mind, such as arteriosclerosis (Bemp) , epilepsy (2ulli)an) and diabetes
('ennessy)" These decisions ha)e illustrated the fact that the de;nition is purely
le%al +hich has been broadened to co)er the operation of the mind in all its
aspects"
=nder this element, the reluctance to accept automatism as a full defence if it could
mean releasin% potentially dan%erous people bac1 into society is in issue" The
%eneral rule is that if automatism (acts done by the muscles +ithout any control by
the mind) is caused by a ‘disease of the mind! then the M!6a%hten rules apply and
the D +ill be found not %uilty by reason of insanity" (9nsane Automatism)" .here the
automatism is caused by an e*ternal factor then the defendant +ill be found not
%uilty as none5insane automatism is a complete defence" The $uestion of +hether
D!s condition is sane or insane automatism is one of la+ for the <ud%e (&ratty @PAT)"
T'e continin( +an(er t'eor# focuses on the dan%er or recurrence" 9f there is a
dan%er of recurrence then the more li1ely a condition +ill be treated as a disease of
mind" (&ur%ess @PP@)" The e)ternal case t'eor# focuses on the cause of the
automatism and says that conditions stemmin% from the psycholo%ical or emotional
ma1eup of the accused, rather than from some e*ternal factor, should lead to a
;ndin% of insanity
The application of these theories has caused problems of inconsistency as can be
demonstrated in the diabetes cases of 'ennesy and Nuic1"
7ne diabetic, +ho fell into a hypo%lycaemic state after ta1in% insulin but not eatin%
enou%h, +as ac$uitted because it +as an e*ternal factor (the insulin) causin% the
sei/ure (Nuic1), +hereas another diabetic, +ho fell into a hyper%lycaemic state,
after failin% to ta1e insulin for three days +as treated as pleadin% insanity as it +as
the disease itself (an internal factor) causin% the sei/ure ('ennessy)" The decision in
$uic1 is %enerally re%arded as incorrect" Althou%h the insulin +as caused the state,
the un!erlying cause +as his diabetes" 8onsistency re$uires that any diabetic
sei/ure should be re%arded as a disease of the mind" 9f found insane, the defendant
+ill not necessarily face hospitalisation after the passin% of the @PP@ Act and may
simply be sub<ect to a super)ision or treatment order or may be dischar%ed"
'o+e)er, the classi;cation of diabetics, epileptics and sleep+al1ers as insane has
been criticised for su%%estin% that those suerin% from such conditions are a dan%er
to the public, +hereas this is far from the truth in the )ast ma<ority of cases" Most
people +ith such conditions are able to control them by ta1in% medication" The
social sti%ma that can attach to an epileptic etc from a ;ndin% of ‘not %uilty o+in%
to insanity! can be far reachin%"
9n addition to the criticisms related to the broadness of this le%al de;nition, critics
ha)e ar%ued that it is also out of date" 9t dates from @QWT and fails to ta1e account
of the hu%e medical ad)ances that ha)e occurred since then"
/ /i+ not 9no& t'e natre an+ 6alit# of t'e act<
9t must also be pro)en that in terms of the ‘nature and $uality of the act!, the
defendant +ould be una+are of his or her actions" D must not 1no+ that +hat he
+as doin% +as le(all# +ron%" (.indle)"
This element of the rule as been criticised for ma1in% the defence too narro+ as it
can rule out those +ho are medically insane if they 1no+ the nature and $uality of
their act or that it is le%ally +ron% but are nonetheless unable to stop themsel)es
from committin% it" Thus, those at +hom the defence should be aimed are unable to
rely on it" #or e*ample in the case of &yrne" 'e +as a se*ual psychopath +ho could
not resist per)erse ideas" 'e 1ne+ +hat he +as doin% +as +ron% and so couldn!t
rely on the defence of insanity but could rely on the defence of DR instead" &ut DR
only a)ailable for a char%e of murderD
7ther e)aluation points include the fact that the defences are eecti)ely
established or rebutted by medical e*perts rather than bein% decided upon by
<urors" 9t is ar%ued that doctors should not be deli)erin% opinions on le%al or moral
responsibility +hich are essentially <ury issues
There is also potential for <ury confusion O misapplication o+in% to emotional
considerations, sympathy or crude ‘%ut reaction!" #or e*ample in the 3eter 2utclie
( the ‘Xor1shire Ripper! case +here psychiatrists +ere unanimous in a%reein% he
+as a paranoid schi/ophrenic yet he +as con)icted of murder"
A ne& +efence
8ritics ar%ue that the only +ay for+ard is to abolish the M!6a%hten rules alto%ether"
9nstead, a ne+ defence should be introduced" The &utler 8ommittee su%%ested that
this should apply to defendants +ith a mental disorder and should result in a )erdict
of ‘not %uilty on e)idence of a mental disorder!" 9n @PQP the ,a+ 8ommission!s Draft
8riminal 8ode proposed that a defendant should not be %uilty on e)idence of se)ere
mental disorder or se)ere mental handicap" This +ould a)oid the defendant bein%
labelled insane" 7thers su%%est that there is no need for such a defence at all and
that those suerin% from insanity should be dealt +ith outside the criminal <ustice
system"
9n li%ht of the abo)e e*ploration of the defence of insanity, it +ould seem apt to
a%ree +ith the statement that it is outdated and unsatisfactory and +ith the opinion
that reform is lon% o)erdue in the interests of both <ustice and common sense" 9t is
founded on le%al rather than medical de;nitions, and this le%al de;nition +as
established in a time of limited medical 1no+led%e" This has led to unsatisfactory
and inconsistent decisions, labellin% insane those +ho are suerin% from a physical
medical condition +hich seems to %o a%ainst common sense and <ustice" The
burden upon the defendant to pro)e that he is insane %oes a%ainst a fundamental
principle of the criminal la+ that +e are innocent until pro)en %uilty" Despite the
chan%es in terms of orders that can be made by a <ud%e ;ndin% a defendant not
%uilty by reason of insanity after the @PP@ Act, the defence remains unsatisfactory
and in desperate need of reform"
Automatism
A defence +here the defendant does an act +hich is not under the control of his
conscious mind"
De;nition of Automatism
Uan act done by the muscles +ithout any control by the mind, such as a spasm, a
re:e* action or a con)ulsion- or an act done by a person +ho is not conscious of
+hat he is doin% such as an act done +hilst suerin% from concussion or +hilst
sleep5+al1in%"E
&ratty ) AM for 6orthern 9reland (@PAT)
The T+o Types of Automatism
@" 9nsane automatism ( +here the cause of the automatism is a disease of the
mind +ithin the M!6a%hten rules" 9n such a case the defence is insanity and
the )erdict is not %uilty by reason of insanity"
F" 6on5insane automatism ( +here the cause is an e*ternal one" .here such a
defence succeeds, it is a complete defence and the defendant is not %uilty"
6on5insane Automatism
 This is a defence because the Actus Reus done by the defendant is not
)oluntary"
 9n addition, the defendant does not ha)e the re$uired Mens Rea for the
oence"
 The cause of the automatism must be e*ternal" L"%:
 A blo+ to the head
 An attac1 by a s+arm of bees
 2nee/in%
 'ypnotism
 The eect of a dru%
'ill ) &a*ter (@PHQ)
#acts of the case
The defendant dro)e throu%h a stop si%n +ithout stoppin% and collided +ith another
car" 'e +as char%ed +ith dan%erous dri)in% but ac$uitted by the ma%istrates +ho
accepted that he remembered nothin% from some distance before reachin% the stop
si%n"
3rinciple of the case
The Di)isional 8ourt allo+ed the prosecution!s appeal and remitted the case bac1 to
the ma%istrates +ith a direction to con)ict as there +as no e)idence to support a
defence of automatism"
The court appro)ed the <ud%ment of the 87A in the earlier case of Bay )
&utter+orth (@PWH) +here the <ud%e had said:
UA person should not be made liable at the criminal la+ +ho, throu%h no fault of his
o+n, becomes unconscious +hen dri)in%, as, for e*ample, a person +ho has been
struc1 by a stone or o)ercome by a sudden illness, or +hen the car has been put
temporarily out of his control o+in% to his bein% attac1ed by a s+arm of bees"E
R ) T (@PPG)
#acts of the case
The defendant +as %an% raped" Three days later she too1 part in a robbery and an
assault" 2he claimed that at the time she +as suerin% from 3ost Traumatic 2tress
Disorder as a result of the rape and that she had acted in a dream5li1e state"
3rinciple of the case
9t +as accepted that e*ceptional stress can be an e*ternal factor +hich may cause
automatism"
The trial <ud%e allo+ed the defence of automatism to %o to the <ury, but the
defendant +as con)icted
AMs Ref (6o F of @PPF) (@PPT)
#acts of the case
The defendant +as a lorry dri)er +ho, after dri)in% for se)eral hours, dro)e alon%
the hard shoulder of a motor+ay for about half a mile" 'e hit a bro1en do+n car
+hich +as stationary on the hard shoulder, 1illin% t+o people" 'e said that he +as
suerin% from the condition ‘dri)in% +ithout a+areness! +hich puts a dri)er into a
trance5li1e state" 9t may be brou%ht on by dri)in% for lon% distance on motor+ays"
The <ury ac$uitted him"
3rinciple of the case
T'e A- referre+ t'e %oint of la& to t'e COA &'o rle+ t'at !ecase t'is
con+ition onl# cases %artial loss of control it +i+ not amont to
atomatism< For atomatism7 t'ere mst !e Ototal +estrction of "olntar#
control<8
2elf5induced automatism
 This is +here the defendant 1no+s that his conduct is li1ely to brin% on an
automatic state"
#or e*ample:
 A diabetic, +ho 1no+s the ris1, of failin% to eat after ta1in% medication"
 A person +ho drin1s after ta1in% medication, +hen he has been told by the
doctor that he must not ta1e alcohol"
 The la+ on this comes from R ) &ailey (@PQT)"
R ) &ailey (@PQT)
#acts of the case
The defendant +as a diabetic +ho had failed to eat enou%h after ta1in% insulin to
control the diabetes" 'e became a%%ressi)e and hit someone o)er the head +ith an
iron bar" The trial <ud%e ruled that the defence of automatism +as not a)ailable"
3rinciple of the case
The 87A held that this rulin% +as +ron% but upheld the defendant!s con)iction as
there +as insu4cient e)idence in the case to raise the defence of automatism"
The 87A set out the rules on self5induced automatism:
 9f the oence char%ed is one of speci;c intent, then self5induced automatism
can be a defence" This is because the defendant lac1s the re$uired Mens Rea
for the oence"
 9f the oence char%ed is one of basic intent then:
a) 9f the defendant has been rec1less in %ettin% into a state of automatism, self5
induced automatism cannot be a defence" 2ub<ecti)e rec1lessness is
su4cient Mens Rea of crimes of basic intent-
b) .here the self5induced automatism is caused throu%h drin1 or ille%al dru%s
the defendant cannot use the defence of automatism" 9n D33 ) Ma<e+s1i it
+as held that becomin% )oluntarily into*icated is a rec1less course of
conduct-
c) .here the defendant does not 1no+ that his actions are li1ely to lead to a
self5induced automatic state in +hich he may commit an oence, he has not
been rec1less and can use the defence of automatism"
R ) 'ardie (@PQH)
#acts of the case
The defendant +as depressed after brea1in% up +ith his %irlfriend" .hilst pac1in%
his ba%s to lea)e, he too1 some of )ictim!s prescription )alium tablets from the
medicine cabinet, belie)in% that they +ould calm him do+n" 2hortly after, he
started a ;re in the +ardrobe"
The defendant!s defence +as that he did not 1no+ +hat he +as doin% because of
the )alium" The <ury con)icted of arson after bein% directed to i%nore the eects of
the )alium"
3rinciple of the case
'o+e)er, 87A $uashed the defendant!s con)iction as the defendant had ta1en the
dru% because he thou%ht it +ould calm him do+n" (This is the normal eect of
)alium)" 2o the defendant +as not rec1less and the defence of automatism should
ha)e been left to the <ury"
Lssay Nuestion
‘9nsane and non5insane automatism are similar defences in)ol)in% mental
abnormality" 9t is )ital that the distinction bet+een them is fully understood since
they produce )ery dierent conse$uences for a defendant +ho relies on one or
other of them"!
8ritically consider the truth of the abo)e statement"
>anuary FGGA JHG mar1sK
9nto*ication
A defence +here the defendant has consumed alcohol, dru%s or other substances"
 9nto*ication is a means of puttin% doubt into the minds of the ma%istrates or
<ury as to +hether the defendant has formed the necessary mens rea"
 9t is %o)erned by case la+"
 9t usually in)ol)es alcohol, but can apply to any case +here the defendant
has consumed a substance (or coc1tail of substances) +hich is capable of
aectin% the defendant!s ability to intend or to foresee the conse$uences of
their actions"
 9f, despite the into*ication, the defendant forms the necessary mens rea for
the crime in $uestion then the defence is not a)ailable"
The Rules
 9nto*ication is no defence if, despite the into*ication, the defendant formed
the mens rea-
 .here the defendant +as in)oluntarily into*icated and failed to form the
mens rea, the defendant is entitled to be ac$uitted-
 .here the defendant +as )oluntarily into*icated and failed to form the mens
rea, the defendant is entitled to be ac$uitted if the oence char%ed is one of
speci;c intent" 9f the oence char%ed is one of basic intent then the <ury must
consider +hether the defendant +ould ha)e formed mens rea had he been
sober"
 9nto*ication is no defence if the defendant still formed the mens rea for the
crime" 2o
UThe mere fact that the defendant!s mind +as aected by drin1 so that
he acted in a +ay in +hich he +ould not ha)e done had he been sober
does not assist him at all, pro)ided that the necessary intention +as
there" A drun1en intent is ne)ertheless an intent"E R ) 2heehan @PSH
9n)oluntary 9nto*ication
 9n)oluntary into*ication co)ers situations +here the defendant did not 1no+
he +as ta1in% an into*icatin% substance (spi1ed- prescribed dru%s ha)e an
une*pected eect)"
 The mere fact that the defendant!s alcoholic drin1 has a stron%er eect than
necessary does not ma1e the into*ication, in)oluntary: R ) Allen (@PQQ)
 9f the defendant +as in)oluntarily into*icated such that the prosecution
cannot pro)e the mens rea, then the defendant is entitled to an ac$uittal"
 9f the defendant +as in)oluntarily into*icated but did ha)e the mens rea
+hen he committed the oence, he +ill be %uilty" The in)oluntary into*ication
+ill not pro)ide a defence" This is so e)en thou%h the defendant +ould not
ha)e committed the oence +ithout the into*ication lo+erin% his resistance
to committin% the oence"
R ) Bin%ston (@PPW)
#acts of the case
The defendant +as a middle5a%ed businessman" 'e had admitted
paedophilic, homose*ual tendencies, +hich he +as able to control +hilst
sober" This presented an opportunity for former business associates of his to
blac1mail him"
As part of the set5up, both the defendant and a @H5year5old boy +ere lured,
separately to a :at and dru%%ed (dru%s put in their coee)" The boy fell
asleep the defendant +as in)ited to abuse him" The defendant did so and
+as photo%raphed by the blac1mailer"
9n the prosecution!s )ie+ there +as e)idence that the defendant, despite the
eects of the dru%s, intended to touch the boy in circumstances of indecency
and the <ury a%reed"
3rinciple of the case
The '7, upheld his con)iction for indecent assault" They held that if a
defendant had formed the Mens Rea for an oence then the in)oluntary
into*ication +as not a defence"
R ) 'ardie (@PQH)
#acts of the case
The defendant +as depressed after brea1in% up +ith his %irlfriend" .hilst
pac1in% his ba%s to lea)e, he too1 some of the )ictim!s prescription )alium
tablets from the medicine cabinet, belie)in% that they +ould calm him do+n"
2hortly after, he started a ;re in the +ardrobe"
The defendant!s defence +as that he did not 1no+ +hat he +as doin%
because of the )alium" The <ury con)icted of arson after bein% directed to
i%nore the eects of the )alium"
3rinciple of the case
The 87A $uashed the defendant!s con)iction as the defendant had ta1en the
dru% because he thou%ht it +ould calm him do+n" (This is the normal eect
of )alium)" 2o the defendant +as not rec1less"
Voluntary 9nto*ication
 This is +here the defendant has chosen to ta1e an into*icatin% substance"
 .hether the defendant is %uilty depends upon +hether the crime is one of
speci;c or basic intent"
8rimes of speci;c intent 8rimes of basic intent
 Murder
 .oundin% or causin% M&' +ith intent
 Theft
 Robbery
 &ur%lary
 Manslau%hter
 Rape
 Malicious +oundin%
 Assault occasionin% A&'
 8ommon assault
Voluntary into*ication and speci;c intent oences
Voluntary into*ication can ne%ate the mens rea for a speci;c intent oence" 9f
the defendant is so into*icated that he has not formed the mens rea for the
oence he is not %uilty"
D33 ) &eard (@PFG)
#acts of the case
The defendant had been char%ed +ith murder but ar%ued that he +as too
into*icated to ha)e formed the mens rea for murder"
3rinciple of the case
,ord &ir1enhead stated the rule +hich still applies today: F7f he was so drun# that he
was incapable of forming the intent re)uired, he could not be con%icted of a crime
which was committed only if the intent was pro%ed.G
R ) 2heehan and Moore (@PSH)
#acts of the case
The defendant!s +ere )ery drun1 +hen they thre+ petrol o)er a tramp and set ;re
to him" They +ere too drun1 to ha)e formed any intent to 1ill or cause M&' (the MR
for murder)"
3rinciple of the case
9t +as held that because they did not ha)e the Mens Rea for murder their
into*ication +as a defence to that oence" 'o+e)er, they +ere found %uilty of
manslau%hter as that is a basic intent oence"
2ee also R ) 'eard FGGS
Dutch 8oura%e casesD
.here the defendant has the necessary mens rea despite his into*icated
state, then he is %uilty of the oence" The into*ication does not pro)ide a
defence"
AM for 6orthern 9reland ) Malla%her (@PAT)
#acts of the case
The defendant decided to 1ill his +ife" 'e bou%ht a 1nife to do the 1illin% and also a
bottle of +his1y" 'e dran1 a lar%e amount of the +his1y before 1illin% his +ife"
3rinciple of the case
The defendant?s con)iction for murder +as upheld ( a drun1en intent is still
an intent"
Dutch 8oura%e
U9f a man, +hilst sane and sober, forms an intention to 1ill and ma1es preparation
for it 1no+in% it is a +ron% thin% to do, and then %ets himself drun1 so as to %i)e
himself Dutch coura%e to do the 1illin%, and +hilst drun1 carries out his intention, he
cannot rely on this self5induced drun1enness as a defence to murder, not e)en as
reducin% it to manslau%hter" 'e cannot say he %ot himself into such a stupid state
that he +as incapable of an intent to 1ill[The +ic1edness of his mind before he %ot
drun1 is enou%h to condemn him, coupled +ith the act +hich he intended to do and
did do"E
3er ,ord Dennin% in Malla%her
Voluntary into*ication and basic intent oences
 .here the oence char%ed is one of basic intent then into*ication is not a
defence"
 This is because )oluntarily %ettin% into*icated is considered a rec1less course
of conduct and rec1lessness is enou%h to constitute the necessary mens rea
for crimes of basic intent"
D33 ) Ma<e+s1i (@PSS)
#acts of the case
The defendant had ta1en both alcohol and dru%s" 9n a )ery into*icated state he then
attac1ed people in a pub and also the police o4cers +ho +ere tryin% to arrest him"
'e +as con)icted of T oences of assault occasionin% A&' and T of assaultin% a
police o4cer in the e*ecution of his duty"
3rinciple of the case
The '7, upheld all these con)ictions" 'is into*icated state +as not a defence as: Fit
is a rec#less course of conduct and rec#lessness is enough to constitute the
necessary $ens 3ea.G
Drun1en Mista1e
 9f the defendant is mista1en about a 1ey fact because he is drun1, then it
depends on +hat the mista1e +as about as to +hether he has a defence or
not"
 .here the mista1e is about somethin% +hich means that the defendant did
not ha)e the mens rea for the oence then for a speci;c intent oence he
has a defence"
 'o+e)er, +here the oence is one of basic intent then the defendant has not
%ot a defence"
R ) ,ipman (@PSG)
#acts of the case
The defendant and his %irlfriend had ta1en the dru% ,2D before fallin% asleep at her
:at" ,2D causes hallucinations" The defendant thou%ht that he +as at the centre of
the earth and bein% attac1ed by sna1es" .hen he a+o1e he found his %irlfriend +as
dead" 'e had stran%led her and stued a sheet into her mouth belie)in% she +as a
sna1e attac1in% him" 'is con)iction for manslau%hter +as upheld"
3rinciple of the case
The defendant did not ha)e the speci;c intention for murder as he thou%ht he +as
1illin% a sna1e" 'o+e)er, he +as %uilty of manslau%hter because he had )oluntarily
ta1en the dru% ,2D" This +as a rec1less course of conduct and so he +as %uilty of
manslau%hter"
R ) 7!Mrady (@PQS)
#acts of the case
The defendant and the )ictim, +ho +as a friend, had been drin1in% hea)ily- they
fell asleep in the defendant!s :at" The defendant claimed that he a+o1e to ;nd
the )ictim hittin% him" The defendant pic1ed up a %lass ashtray and hit the
)ictim +ith it, the defendant then +ent bac1 to sleep" .hen he +o1e he found
that the )ictim +as dead" The defendant +as char%ed +ith murder but +as
con)icted of manslau%hter"
3rinciple of the case
This +as upheld by the 87A"
R ) 'atton (FGGH)
#acts of the case
The defendant had drun1 o)er FG pints of beer" 'e and the )ictim (another man)
+ent bac1 to the defendant!s :at" 9n the mornin% the defendant claimed he found
the )ictim dead from in<uries caused by a sled%ehammer" The defendant said he
couldn!t really remember +hat had happened but thou%ht the )ictim had hit him
+ith a H foot lon% stic1 and he had defended the attac1" The defendant +as
con)icted of murder"
3rinciple of the case
The 87A held that a drun1en mista1e about the amount of force re$uired in self5
defence +as not a defence"
To celebrate the end of A le)els, =na and 6atasha +ent out to a ni%ht club, +here
they +ere <oined by =na?s boyfriend, 3edro, and 6atasha?s former boyfriend, Tyrone"
3edro +as in a bad mood because he thou%ht he mi%ht ha)e failed one of his
e*ams, +hile Tyrone +as still miserable follo+in% his brea15up +ith 6atasha" 9n an
eort to cheer them up, =na oered to buy a round of drin1s" Tyrone +as ta1in%
medication for his hay fe)er and had been +arned by his doctor to a)oid alcohol, so
he as1ed for oran%e <uice" 3edro, +ho had already drun1 se)eral cans of beer before
comin% to the club, settled for half a pint of la%er" Decidin% that drastic measures
+ere called for, =na surreptitiously added a lar%e amount of )od1a to both their
%lasses" 3edro became a%%ressi)ely drun1, and loudly accused Tyrone of fancyin%
=na" =na told him to 1eep his )oice do+n, +hereupon 3edro slapped her and
shouted that he +ould ;%ht anyone +ho ob<ected" 2e)eral people bac1ed a+ay in
alarm, fearin% for their personal safety" 9n his an%er, 3edro thre+ a %lass at Tyrone,
but missed and his 6atasha" The %lass shattered, cuttin% her face" &y no+ Tyrone
+as e*periencin% the combined eect of the medication and the )od1a, and
thin1in% that he +as protectin% 6atasha, he punched 3edro, brea1in% his <a+"
8onsider the potential criminal liability of Tyrone and 3edro, includin% any defences
+hich may be a)ailable to them" JFHK
/e3nitions *AOF 9no&le+(e re6ire+,
Llements of assault and battery at common la+- 8riminal >ustice Act @PQQ, s" TP"
A%%ra)ated assaults: 7ences A%ainst the 3erson Act @QA@, ss" WS, FG, @Q"
9nto*ication: distinction bet+een crimes of basic and speci;c intent"
Mista1en use of force in pre)ention of crime: 8riminal >ustice and 9mmi%ration Act
FGGQ s"SA
9nto*icated mista1e 8riminal >ustice and 9mmi%ration Act FGGQ s"SA
A%%lication
8edroH
O$ences:
May be %uilty of a technical assault on the other people nearby (intentionally or
rec1lessly causin% them to apprehend immediate unla+ful personal )iolence: 2agan
% $8!, appro)ed by ', in Sa%age and 8armenter. .ords alone can constitute
assault: 7reland.
The slap to =na is a battery, +hich may be char%ed as common assault under 8>A
@PQQ, s"TP, or as assault occasionin% actual bodily harm under 7A3A @QA@, s"WS, if
hurt or in<ury is su4cient to interfere +ith the health or comfort of the )ictim: $iller.
Mens rea: intention or !unningham rec1lessness as to battery: foresi%ht of actual
bodily harm not necessary: Sa%age and 8armenter.
The in<ury to 6atasha 5 3edro may be char%ed +ith the oence under s"FG or s"@Q,
or s"WS if the cut is minor" (=nder the police char%in% standards, a minor cut +ould
normally come under s"WS, but may be char%ed as s"FG if the +ound is serious, e"%",
dis;%urin%")" 'is intent to hit Tyrone +ould be transferred (transferred malice) to
6atasha"
/efences
9nto*ication 5 3edro?s into*ication may be held to be )oluntary, as he 1ne+ he +as
drin1in% alcohol, althou%h not its stren%th: "llan. 9f so, then he cannot adduce
e)idence of into*ication to sho+ he lac1ed mens rea for assault, battery or the
oence under ss"WS or FG- he could do so, ho+e)er, if he +ere char%ed under s"@Q
as this is a speci;c intent crime" 9f in)oluntarily into*icated, he can use this as a
defence to any of these char%es: $a,ews#i"
8yrone
.hat does he doV 5 3unches 3edro brea1in% his >a+"
May be char%ed +ith maliciously causin% %rie)ous bodily harm under s"@Q or
maliciously in:ictin% %rie)ous bodily harm under s" FG" De;ne both"
2ection @Q re$uires speci;c intent, i"e" D must intend to +ound (cut or brea1 the
continuity of the s1in ( Lisenho+er) or cause M&' (really serious harm (D33 )
2mithR2aunders) or foresee it as a )irtually certain conse$uence of his actions"
2ection FG re$uires intention or !unningham rec1lessness to +ound or in:ict M&'
but D +ill be liable if he foresa+ some harm, albeit a lesser de%ree of harm than
that +hich +as caused: $owatt, a4rmed in Sa%age and 8armenter" 8onclude +hich
oence is most li1ely in the circumstance"
/efences
9nto*ication 5 Tyrone?s into*ication is in)oluntary, so he can adduce e)idence of
into*ication to ne%ati)e mens rea +hether the oence is one of basic (s"FG) or
speci;c intent (s"@Q) ($a,ews#i)" 'o+e)er, if he is pro)ed to ha)e formed the
necessary intent, he +ill be con)icted and the in)oluntary into*ication +ill be a
miti%atin% factor in his sentence: 1ingston:Hardie. .
Defence of reasonable force in defence of oneself or another, or to pre)ent
commission of a crime: 8riminal >ustice and 9mmi%ration Act FGGQ
Althou%h mista1en belief caused throu%h the defendant!s )oluntary into*ication
cannot %i)e a defence of self defence, defence of another or pre)ention of crime
(s"SA(H)), Tyrone is in)oluntarily into*icated and so may be able to rely on this
defence"
9f D mista1enly belie)es it is necessary to use force in the circumstances, his
mista1e as to the circumstances need only be %enuine and not necessarily
reasonable 5 Williams (4ladstone), Scarlett O s"SA(T) of the 8>9A FGGQ" Tyrone ou%ht
to be ac$uitted if the <ury belie)e that he honestly thou%ht it +as necessary to
punch 3edro to protect 6atasha, and that a punch +as reasonable force in the
circumstances"

/ress
There are t+o defences of duress and the principles relatin% to these defences are
identical
 Duress by threats is whereH
The defendant is threatened (+ith death or serious in<ury) by another to
commit a speci;c criminal oence" 8ole (@PPW)
 Duress by circumstances is whereH
– The defendant is threatened by the circumstances 3ommell (@PPH)
The threatsD
'o+ serious must the threat beV
 5the imminent peril of death or serious in,ury II is an essential element’ "bdul9
Hussain (;<<<)
 &eed not be the sole reason why the defendant committed the o6ence.
Jalderrama Jega (;<?K)
3 % Jalderrama Jega (;<?K)
#acts of the case
The defendant ille%ally imported cocaine and claimed he did this as a result of
death threats from a ma;a or%anisation as +ell as threats to disclose his
homose*uality and ;nancial pressures"
3rinciple of the case
4el+ t'at t'e ;r# &ere allo&e+ to loo9 at t'e cmlati"e t'reats !t if t'e
t'reat of +eat' 'a+ not !een ma+e t'e ot'er reasons col+ not !e
se+ for t'e +efence of /ress<
.ho must the threats be a%ainstV
R ) 8on+ay @PQQ
9n this case threats +ere allo+ed to a passen%er in the defendant!s car"
8onse$uently this limitation includes threats to other people"
Additionally,
 Threats to a defendant!s spouse +ould su4ce"
 There ha)e been su%%estions in the draft criminal code that it should also
include threats to a complete stran%er"
R ) .ri%ht FGGG
3rinciple of the case
The 8ourt of Appeal stated that the threat must be directed a%ainst the defendant,
a member of his immediate family, or a ‘person for +hose safety the defendant
+ould reasonably re%ard himself as responsible!" (This case +as appro)ed by the
'ouse of ,ords by an obiter statement in 'asan FGGH)
'o+ imminent must the threat beV
Abdul5'ussain @PPP (
3rinciple of the case
9n this case the 8ourt of appeal ruled that, imminent does not mean immediate"
This principle +as con;rmed in the case of R ) 2a; O 7thers FGGW
'o+e)er, in the case of 'asan FGGH the 'ouse of ,ords ruled that the threat must
be immediate or almost immediate"
,ord &in%ham stated that the correct test +as["
‘9t should be made clear to <uries that if the retribution threatened a%ainst the
defendant or his family or a person for +hom he reasonably feels responsible is
not such as he reasonably e*pects to follo+ immediately or almost immediately
on his failure to comply +ith the threat, there may be little if any room for doubt
that he could ha)e ta1en e)asi)e action, +hether by %oin% to the police or in
some other +ay, to a)oid committin% the crime +ith +hich he is char%ed!"
7pportunities to escapeR 3olice protection
3 % 4ill ;<AD
#acts of the case
The defendant +as threatened +ith )iolence unless he stole a lorry" 'o+e)er,
before he committed the oence there +as a period of time +here he could ha)e
raised the alarm"
3rinciple of the case
As he had a safe a)enue of escape, he had had time to raise the alarm, he could not
rely on the defence of duress"
'udson and Taylor @PS@
#acts of the case
9n this case t+o teena%e %irls lied on oath about a )iolent attac1 as they had been
threatened +ith death if they %a)e e)idence" 9n the per<ury trial the prosecution said
that they could ha)e sou%ht police custody"
3rinciple of the case
The 87A said that in some cases the police could not pro)ide the necessary
protection and that the a%e of the defendants should be considered to%ether +ith
the circumstances of the threats"
'o+e)er the decision in this case +as criticised in 'asan FGGH" 3lease read part of
,ord &in%ham!s <ud%ment abo)eD
2elf (induced duress
A defendant +ill be denied the defence of duress if they ha)e )oluntarily placed
themsel)es in a situation +here they ris1 bein% threatened +ith )iolence in
order to commit a crime"
2harp @PQS
#acts of the case
9n this case the defendants had attempted the armed robbery of a post o4ce +hich
resulted in the death of the sub5postmaster" 2harp!s defence +as that he had
been threatened +ith ha)in% his head blo+n o if he did not cooperate" The trial
<ud%e +ithdre+ the defence from the <ury" 2harp +as con)icted of manslau%hter
and robbery"
3rinciple of the case
The 8ourt of Appeal upheld the con)ictions statin% that if the follo+in% +ere
satis;ed then the defence +ould be denied:
• The defendant must ‘)oluntarily <oin a criminal or%anisation or %an%
• they must ha)e 1no+led%e of its nature
• they must ha)e 1no+n that pressure mi%ht be out on him to commit an
oence
• they must ha)e been an acti)e member of the %an% +hen pressure +as put
on him
'asan FGGH
#acts of the case
The defendant +as a dri)er and minder for a prostitute" 'e had been threatened by
her boyfriend (a )iolent %an%sterRdru% dealer) to carry out a bur%lary" The defendant
committed an armed bur%lary and at trial pleaded duress" 'e +as con)icted"
The 8ourt of Appeal $uashed his con)icted but it +as re5instated by the 'ouse of
,ords
3rinciple of the case
The House of Lords stated that the defence of duress is denied when the
defendant foresaw (or should have foreseen) the risk of being subjected to ANY
compulsion b threats of violence!
8onse$uently, the defendant no lon%er has to <oin an or%ani/ationR%an% but should
be in)ol)ed in criminal enterprise" 9n 'asan FGGH this +as in)ol)ement +ith a
prostitute" 'o+e)er, another condition in 2harp @PQS +as that the defendant must
ha)e ‘1no+led%e of its nature!"
2hepherd @PQS
#acts of the case
The defendant +as a member of an or%ani/ed %an% of shoplifters but they +ere
non5)iolent" 'o+e)er, +hen he tried to lea)e the %an% they threaten him and his
family +ith )iolence if he did not continue" 'e +as char%ed and con)icted of theft"
The trial <ud%e had +ithdra+n the defence of duress from the <ury"
3rinciple of the case
The 8ourt of Appeal $uashed his con)iction statin% that
‘8ommon sense must reco%nise that there are certain 1inds of criminal enterprises
the <oinin% of +hich, in the absence of any 1no+led%e of propensity to )iolence
on the part of one member, +ould not lead another to suspect that a decision to
thin1 better of the +hole aair mi%ht lead him into serious trouble" The lo%ic
+hich appears to underlie the la+ of duress +ould su%%est that if trouble did
une*pectedly materialise, and if it put the defendant into a dilemma in +hich
a reasonable man mi%ht ha)e chosen to act as he did, the concession to human
frailty should not be denied to him" " " ",> Mustill
Resistin% the threatsD
The threatRs made must be one that the ordinary man +ould not ha)e resisted"
Mraham @PQF de)eloped a t+o part test
The ;rst $uestion (sub<ecti)e) is:5 +as the defendant, or may he ha)e been,
compelled to act as he did because, as a result of +hat he reasonably belie)ed
had been said or done, he had %ood cause to fear that if he did not act as
directed he +ould suer death or be caused serious physical in<uryV
The second $uestion (ob<ecti)e) is:5 +ould a sober person of reasonable
;rmness, sharin% the characteristics of the defendant, ha)e responded in the
same +ay as the defendant didV
The second part of the test re$uires a reasonable man to respond in the same +ayD
&o+en @PPA
3rinciple of the case
'his case listed accepted characteristics of a reasonable man. 'hese include
@" A%e ( youn% and old people can be susceptible to threats"
F" 3re%nancy ( fear of unborn child"
T" 2erious physical disability ( cannot protect oneself"
W" Reco%nised mental or psychiatric disorder"
H" 2e*
Scope of the defence
Menerally duress can be used for all crimes &=T it cannot be used for murder (
3 % Howe (;<?=)
8rinciple of the case
"s 7 can (nd no fair and certain basis upon which to di6erentiate between
participants to a murder and as 7 am (rmly con%inced that the law should not
be e-tended to the #iller, 7 would depart from the decision of this House in D33
for 6orthern 9reland % ,ynch LL;<=KM "! AKDM and declare the law to be that
duress is not a%ailable as a defence to a charge of murder, or to attempted
murder. 7 add attempted murder because it is to be remembered that the
prosecution ha%e to pro%e an e%en more e%il intent to con%ict of attempted
murder than in actual murder. 0ord 4riNths
3 % 4otts (;<<;)
'his case followed the obiter dicta statement in Howe (see abo%e) and stated that
duress cannot be used for attempted murder.
'his has been hea%ily criticised by academics and the 0aw !ommission has
recommended it be a%ailable for all crimes.
Speci(c .6ence:&e-us
'he threats must be in order to ma#e him carry out a speci(c o6ence.
3 % !ole ;<<@
8rinciple of the case
7n our ,udgment it is plain that the defence of duress by threats can only apply
when the o6ence charged (the o6ence which the accused asserts he was
constrained to commit) is the %ery o6ence which was nominated by the
person ma#ing the threat, i.e. when the accused was re)uired by the threat to
commit the o6ence charged. 7t is plain . . . that the appellant on the present
appeal cannot see# to rely upon the defence of duress by threatsH his money
lenders had not stipulated that he should put himself in funds by committing
robberies/ they nominated neither that, nor indeed any other o6ence, as the
means by which he should e)uip himself to meet their demands.
'his only applies to duress by threats.
Duress of 8ircumstances
&asic rules 0 same as for duress by threats &=T it is the circumstances that
threatened death or serious personal in<ury unless the crime is committed"
The defence ori%inated recently 5 R ) .iller @PQA
R ) .iller @PQA
#acts of the case
'e dro)e his car do+n a narro+ alley and +as surrounded by a %an% of youths
threatenin% )iolence" To %et a+ay from them he dro)e on the pa)ement and then
reported the incident to the police" 'e +as con)icted of rec1less dri)in%D
3rinciple of the case
87A said that the <ury could consider if he dro)e under duress
R ) 8on+ay @PQP
#acts of the case
T, a passen%er in D!s car, had been attac1ed and shot at a fe+ +ee1s earlier" T+o
men came runnin% to+ards their par1ed car" =n1no+n to D and T, they +ere plain
clothes policemen see1in% to e*ecute an arrest +arrant on T" D, claimin% to fear
that T +as about to be 1illed, dro)e o in a rec1less manner pursued by the
policemen in their car" D +as con)icted of the no+ replaced oence of rec1less
dri)in% after the trial <ud%e refused to lea)e a defence of necessity to the <ury"
3rinciple of the case
.77,# >: " " " .e ha)e also seen the ,a+ 8ommission!s report on the 8odi;cation of
the 8riminal ,a+ (,a+ 8om" 6o" @WT (@PQH)), +hich too1 the )ie+ that necessity
should remain as a defence at common la+, in so far as it is one already" 9t appears
that it is still not clear +hether there is a %eneral defence of necessity or, if there is,
+hat are the circumstances in +hich it is a)ailable"
.e conclude that necessity can only be a defence to a char%e of rec1less dri)in%
+here the facts establish ‘duress of circumstances!, as in 3 ) Willer J@PQSK As the
learned editors point out in 2mith and 'o%an !riminal 0aw (Ath edn, @PQQ) p" FFH,
to admit a defence of ‘duress of circumstances! is a lo%ical conse$uence of the
e*istence of the defence of duress as that term is ordinarily understood, i"e" ‘do this
or else!" This approach does no more than reco%nise that duress is an e*ample of
necessity" .hether ‘duress of circumstances! is called ‘duress! or ‘necessity! does
not matter" .hat is important is that, +hate)er it is called, it is sub<ect to the same
limitations as the ‘do this or else! species of duress" " " "9t follo+s that a defence of
‘duress of circumstances! is a)ailable only if from an ob<ecti)e standpoint the
defendant can be said to be actin% in order to a)oid a threat of death or serious
in<ury" Althou%h it is unli1ely that the outcome of the <ury!s deliberations +ould ha)e
been any dierent, they should ha)e been directed as to the possibility that they
could ;nd the appellant not %uilty because of duress of circumstances, althou%h
they +ere other+ise satis;ed that he had dri)en rec1lessly" " " "
R ) Martin @PQP
#acts of the case
'is +ife threatened to commit suicide unless he dro)e her son to +or1 (other+ise
he +ould ha)e lost his <ob)" 'e did so but at the time +as dis$uali;ed from dri)in%"
3rinciple of the case
Duress of circumstances +as allo+ed ho+e)er the court %a)e further instruction as
to +hen the defence +ould be allo+ed"""""
‘["";rst, Ln%lish la+ does, in e*treme circumstances, reco%nise a defence of
necessity" Most commonly this defence arises as duress, that is pressure on the
accused!s +ill from the +ron%ful threats or )iolence of another" L$ually ho+e)er it
can arise from other ob<ecti)e dan%ers threatenin% the accused or others" Arisin%
thus it is con)eniently called ‘duress of circumstances!" 2econd, the defence is
a)ailable only if, from an ob<ecti)e standpoint, the accused can be said to be actin%
reasonably and proportionately in order to a)oid a threat of death or serious in<ury"
Third, assumin% the defence to be open to the accused on his account of the facts,
the issue should be left to the <ury, +ho should be directed to determine these t+o
$uestions: ;rst, +as the accused, or may he ha)e been, impelled to act as he did
because as a result of +hat he reasonably belie)ed to be the situation he had %ood
cause to fear that other+ise death or serious physical in<ury +ould result- second, if
so, +ould a sober person of reasonable ;rmness, sharin% the characteristics of the
accused, ha)e responded to that situation by actin% as the accused actedV 9f the
ans+er to both those $uestions +as Xes, then the <ury +ould ac$uit- the defence of
necessity +ould ha)e been established"
R ) 3ommell @PPH
#acts of the case
3olice o4cers entered D!s home at Q am one mornin% to e*ecute a search +arrant"
'e +as found lyin% in bed +ith a loaded %un in his ri%ht hand" 'e +as arrested and
in inter)ie+ said that durin% the ni%ht someone had come to see him carryin% the
%un +ith the intention of %oin% to shoot some people +ho had 1illed his friend" D
said that he persuaded the man to %i)e him the %un, +hich he too1 upstairs" 'e
decided to +ait until mornin% to %i)e the %un to his brother to hand to the police"
3rinciple of the case
,> Bennedy stated that [["!All the cases so far ha)e concerned road tra4c oences
but there are no %rounds for supposin% that the defence is limited to that 1ind of
case" 7n the contrary, the defence, bein% closely related to the defence of duress
by threats, appears to be %eneral, applyin% to all crimes e*cept murder, attempted
murder and some forms of treason, " " "
" " " " That leads us to the conclusion that in the present case the defence +as open
to the appellant in respect of his ac$uisition of the %un" " " " That lea)es the $uestion
as to his continued possession of the %un thereafter" " " " 9n our <ud%ment, a person
+ho has ta1en possession of a %un in circumstances +here he has the defence of
duress by circumstances must ‘desist from committin% the crime as soon as he
reasonably can!" 9n this instance the <ud%es felt that the delay had not been
unreasonable and therefore the defence should ha)e been left to the <ury"
3lease read the abo)e cases and e*plain +hy the decisions in 8on+ay, Martin and
3ommell +ere so importantV
6ecessity
6ecessity is +here the circumstances the defendant is in forces them to act in order
to pre)ent a %reater e)il" There are similarities bet+een the defence of necessity
and the defence of duress of circumstances" 'o+e)er, the traditional )ie+ is that
there is no defence of necessity"
R ) Dudley and 2tephens @QQW
#acts of the case
#ollo+in% a storm, D and 2 +ere left helplessly driftin% in an open boat o)er @,GGG
miles from land alon% +ith another and the ship!s cabin boy a%ed @S years" The
occupants had been 1ept ali)e lar%ely due to the resourcefulness of D, the ship!s
captain, but after se)en days +ithout food and ;)e +ithout +ater, D and 2 1illed the
cabin boy, +ho +as already delirious and near to death" The men feared that they
+ould all die soon +ithout food and +ater" The three sur)i)ors ate his :esh and
dran1 his blood for four days, +hereupon they +ere rescued by a passin% ship" They
+ere char%ed +ith the murder of the boy"
3rinciple of the case
'o+e)er, in
Re A (8on<oined T+ins) FGGG
#acts of the case
A hospital applied for a declaration that it could la+fully perform an operation to
separate t+o con<oined t+ins, >odie and Mary" 9f no operation +as performed both
t+ins +ould die +ithin three to si* months" 9f an operation +as performed, Mary
+ould ine)itably die +ithin a fe+ minutes but >odie +ould be able to li)e a relati)ely
normal and +orth+hile life"
3rinciple of the case
The ma<ority thou%ht that, because the doctors 1ne+ that Mary +as certain to die
from their sur%ery, they +ould intentionally 1ill her in accordance +ith the de;nition
of intention in Woollin" 'o+e)er all three <ud%es a%reed that, in the circumstances,
the doctors +ould ha)e a defence of necessity and the operation +ould be la+ful"
Nuotin% 2ir >ames 2tephen, ,> &roo1e stated that [""there are three necessary
re$uirements for the application of the doctrine of necessity:
*i, t'e act is nee+e+ to a"oi+ ine"ita!le an+ irre%ara!le e"il0

*ii, no more s'ol+ !e +one t'an is reasona!l# necessar# for t'e %r%ose
to !e ac'ie"e+0

*iii, t'e e"il inUicte+ mst not !e +is%ro%ortionate to t'e e"il a"oi+e+<
Mi)en that the principles of modern family la+ point irresistibly to the conclusion
that the interests of >odie must be preferred to the con:ictin% interests of Mary, 9
consider that all three of these re$uirements are satis;ed in this case"
6ecessity ( The debate ( 3lease note the additional cases used hereD
@" 6ecessity is +here a person commits an oence to a)oid a %reater e)il to
either themsel)es or others arisin% out of the circumstances
9n these circumstances the conduct of the accused +ould be la+ful
because it is <usti;ed
F" 'o+e)er, there has been considerable debate about +hether the defence
e*ists and if it did +hat crimes +ould it co)er"
9n Dudley and 2tephens (@QQW) ,ord 8olerid%e confused the issue by
statin% that there is no defence of necessity but then +ent on to say that in
the facts of the case there +as no necessity" Therefore implyin% that there
+as a defence but not in this case"
9n &uc1o1e (@PS@) ,ord Dennin% ar%ued that issues of necessity should be
considered in miti%ation and then +ent on to su%%est that preferably
someone in these circumstances shouldn?t be prosecuted"
T" More recently there ha)e been a number of cases to support a defence of
necessity
9n Re # @PPG ,ord Mo stated that the ?common la+ principle of necessity
could <ustify action +hich +ould other+ise be unla+ful?" (&ut this +as a ci)il
case concernin% the sterilisation of a patient suerin% from se)ere mental
health problems)
W" The cases of .iller, Martin etc appear to su%%est that necessity is eecti)ely
duress of circumstances"
This +ould mean that they +ould be applicable to the same oences" (6ot
murder or attempted murder)
This +ould also mean that necessity is no+ an e*cuse 67T a <usti;cation
H" 9n Re A FGGG it has ho+e)er been ar%ued that necessity could be a defence
to murder"
,> &roo1e said the test for necessity +as
5 Act needed to a)oid a +orse e)il-
5 6o more is done than is necessary for the purpose to be achie)ed-
5 9n all the circumstances the e)il in:icted is not disproportionate to the
e)il a)oided"
'o+e)er, this decision +as a%ain not conclusi)e and nor +as it bindin%
precedent in criminal la+"
A" 9n 2hayler FGG@ ho+e)er, ,8> .oolf stated that duress of circumstances and
necessity +ere the same thin%" This cannot be the case since the test from Re
A does not correspond to the tests for duress of circumstances" #urther
clari;cation of the la+ is therefore still needed"
2elf Defence
This defence co)ers situations +here %enerally the defendant has used force
a%ainst others in order to protect himself or others
Self defence O which is a common law defence
"llows the defendant to use reasonable force toH
a1 Defen! himself from attack
b1 ;revent an attack on another erson < R v Rose 03==91
c1 Defen! his roerty < R v 6ussey 032791
3re)ention of crime ( sT(@) 8riminal ,a+ Act @PAS)
F" person may use such force as is reasonable in the circumstances in the
pre%ention of crime, or e6ecting or assisting in the lawful arrest of o6enders or
suspected o6enders or of persons unlawfully at large.G
The 8riminal >ustice and 9mmi%ration Act FGGQ, s SA pro)ides Uclari;cationE of the
la+ of self defence"
• The section does not create a ne+ defence but does see1 to clarify the
e*istin% common la+ defence and that under s T of the 8riminal ,a+ Act
@PAS
• The section does nothin% more than reiterate the common la+ stated abo)e:
That bein% that the defendant is entitled to use such force as is ob<ecti)ely
determined to be reasonable ha)in% re%ard to the circumstances as he
sub<ecti)ely percei)es them to be"
.hat is the defence of self defenceV
The essence of self5defence is that in some circumstances, the defendant is <usti;ed
in usin% )iolence to meet un<usti;ed a%%ression a%ainst an interest +hich the la+
deems +orthy of protection" (2ee abo)e)
The la+ has to re%ulate the competin% interests of the a%%ressor and defender,
althou%h naturally the balance is in fa)our of the defender"
Althou%h self5defence is referred to as a ‘defence! ( it is really part of the
de;nitional elements of crimes of )iolence" The force must be ‘unla+ful! and if the D
uses reasonable force in self5defence, he does not apply ‘unla+ful! force and the
Actus Reus is not established"
The prosecution must dispro)e the defence"
.here e)idence of self defence e*ists it must be left to the <ury to decide (D33 )
&ailey @PPH)
=se of force
Pse of any force is not ,usti(ed if it was not necessaryQ 'he test is was it necessary
as the defendant saw the circumstances to beQ 3emember once the defence
has raised this particular defence it is for the prosecution to pro%e that the use
of force was unnecessaryQ
3 % Williams ;<?=
#acts of the case
The defendant +as on a bus +hen he sa+ +hat he thou%ht +as a man assaultin% a
youth" 9n fact it +as a man tryin% to arrest the youth for mu%%in% an old lady" The
defendant %ot o the bus and as1ed +hat +as happenin%" The man said he +as a
police o4cer but he could not sho+ the defendant his 9D" There +as a stru%%le and
the defendant in<ured the man"
3rinciple of the case
'eld that if the defendant +as labourin% under a mista1e as to the facts, he must be
<ud%ed accordin% to his mista1en )ie+ of the facts" This is so +hether the mista1e
+as reasonable or not"
The position re%ardin% pre(empti)e stri1es
9t is not necessary for there to be an attac1 in pro%ress- it is su4cient if the
defendant apprehends an attac1"
R ) &ec1ford @PQQ
3rinciple of the case
‘a man about to be attac1ed does not ha)e to +ait for his assailant to stri1e the
;rst blo+ or ;re the ;rst shot- circumstances may <ustify a pre5empti)e stri1e!
The position re%ardin% threats
R ) 8ousins @PQF
3rinciple of the case
2elf defence also applies to threats of )iolence"
The defendant can issue threats of force, e)en death, if that mi%ht pre)ent an
attac1 upon himself or pre)ent a crime from ta1in% place"
The position of a defendant preparin% for an attac1
A5M!s Ref (6o F of @PQT) (@PQW)
3rinciple of the case
.here the defendant apprehends an attac1 upon himself he may ma1e preparations
to defend himself, e)en +here that in)ol)es breaches of the la+" (The defendant
had made petrol bombs to protect himself from rioters")
A duty to retreatV
At one time, it had been thou%ht that the la+ re$uired D to retreat as far as possible
before resortin% to )iolence" 'o+e)er, this is no lon%er the test"
R ) &ird @PQH
3rinciple of the case
9n this case it +as held that insistin% that the defendant demonstrated a reluctance
to ;%ht ‘placed too %reat an obli%ation! upon the defendant"
R ) Rashford FGGH
3rinciple of the case
Allo+s for the a%%ressor to use the defence +here the )ictims retaliation is out of all
proportion to that used by the defendant"
Reasonableness of force
7nly such force may be used as is reasonable in the circumstances
The <ury must decide this $uestion from the position of +hat the
defendant sa+ and thou%ht the circumstances to beD
R ) 3almer @PS@
3rinciple of the case
‘a person defendin% himself cannot +ei%h to a nicety the e*act measure of
his["defensi)e action" 9f a <ury thou%ht that in a moment of une*pected an%uish a
person attac1ed had only done +hat he honestly and instincti)ely thou%ht +as
necessary that +ould be most potent e)idence that only reasonable defensi)e
action had been ta1en!
R ) .hyte @PQS 5 con;rmed 3almer @PS@
3rinciple of the case
‘The belief need not be reasonable but the amount of force needed must be
reasonable, <ud%es ob<ecti)ely on the facts as the defendant belie)ed them to be!"
R ) 7+ino @PPA
3rinciple of the case
‘The essential elements of self defence are clear enou%h" The <ury ha)e to decide
+hether the D honestly belie)ed that the circumstances +ere such as re$uired him
to use force to defend himself from attac1 or threatened attac1" 9n this respect the
D must be <ud%ed in accordance +ith his honest belief, e)en thou%h that belief may
ha)e been mista1en" &ut the <ury must then decide +hether the force used +as
reasonable in the circumstances as he belie)ed them to be!

Rele)ance of the D!s characteristics
9n Martin (FGGF) it +as ruled that psychiatric e)idence relatin% to the defendant!s
perception of his circumstances +as not admissible" This +as a policy decision
potentially based on a :ood%ates ar%ument"

9n 8anns (FGGH) the 87A follo+ed Martin (FGGF) statin% that ‘+hen decidin%
+hether the D had used reasonable force in self defence it +as not appropriate to
ta1e into account +hether the D +as suerin% from some psychiatric condition
+hich may ha)e produced delusional beliefs that he +as about to be attac1ed"
'o+e)er, the court did state that there may be e*ceptional circumstances +hen this
e)idence may be ta1en into consideration and s SA(Q) 8>9A FGGQ allo+s for other
matters to be ta1en into account +hich may lead to rene+ed ar%ument about +hich
of the defendant!s characteristics are rele)antV
L*cessi)e force
R ) 8le%% (@PPH)
#acts of the case
The defendant, a &ritish soldier, shot dead a <oyrider in the rear of a car +hich failed
to stop +hen ordered to do so by soldiers in 6orthern 9reland" 9t +as accepted that
the defendant feared for the life of a fello+ soldier +hen he ;red three shots at the
car" 'o+e)er, the Wth and fatal shot +as ;red into the rear of the car after it had
passed all the soldiers +ho +ere therefore no lon%er in any dan%er" 'e could not
ha)e ;red the fatal shot in self5defence or in defence of a collea%ue"
3rinciple of the case
The '7, upheld the defendant!s con)iction for murder, holdin% that there is no
‘half5+ay house! bet+een murder and manslau%hter" There is no rule that a
defendant +ho has used a %reater de%ree of force than +as necessary in the
circumstances should be found %uilty of manslau%hter rather than murder"
R ) Martin (Anthony) (FGG@)
#acts of the case
The D shot and 1illed #reddie &arras (a%e @A) and seriously +ounded &rendan
#earon (a%e TG) +hen he disco)ered them bur%lin% his isolated 6orfol1 farmhouse"
&arras +as shot in the bac1 and in his le%s and #earon +as also shot in the bac1 of
both le%s" The <ury re<ected the defendant!s plea of self5defence on the %round that
he had used e*cessi)e force" 9ndeed, the e)idence su%%ested that the defendant
had lain in +ait for them and shot at them at short ran%e +ith the intention either of
1illin% or seriously in<urin% them" The defendant +as con)icted of murder"
3rinciple of the case
7n appeal, fresh e)idence that the defendant +as suerin% from a paranoid
personality disorder resulted in a successful plea of diminished responsibility"
Reform
The all or nothin% position +ith re%ards to this defence has led to criticism"
Australian courts ha)e in the past (not no+) said that a ;ndin% of e*cessi)e force
should lead to a partial defence"
The 8riminal ,a+ Re)ision 8ommittee stated that a ;ndin% of e*cessi)e force should
lead to a partial defence"
The Draft 8riminal 8ode also stated that a ;ndin% of e*cessi)e force should lead to
a partial defence"
After 8le%% @PPH a re)ie+ too1 place that found that in a fe+ cases a ;ndin% of
e*cessi)e force leadin% to a partial defence +ould ha)e been helpful" 'o+e)er, this
report concluded that it +ould be di4cult to chan%e the la+ in this area +ithout a
full re)ie+ of the la+ on murder"
This re)ie+ has no+ ta1en place and it also recommends a ;ndin% of e*cessi)e
force should lead to a partial defence" 'o+e)er, the defence +ould come under a
rede;ned defence of pro)ocation"
Mista1e
A defence +here the defendant ma1es a mista1e about a fact
Mista1e
 To be a defence a mista1e must be a mista1e about a fact"
 The mista1e must ha)e the eect that if the facts had been as the defendant
belie)ed them to be, it +ould mean either:
@" There +as no mens rea for the oence
e"%" 9f A pic1s up a coat from a stand as he is lea)in% a restaurant in the
mista1en belief that it is his o+n coat, he does not ha)e the Mens Rea re$uired
for theft as he is not dishonest"
F" The defendant +ould ha)e been able to rely on another defence
e"%" 9f &, in the mista1en belief that the )ictim is pointin% a %un at him, thro+s a
stone at the )ictim and 1noc1s him out, & can plead he should be <ud%ed on the
basis that his action +as in self5defence"
9n these situations, pro)ided that the defendant %enuinely made a mista1e, there is
a defence" This is so e)en if the mista1e is unreasonable:
D33 ) Mor%an and 7thers (@PSA)
#acts of the case
The defendant, +ho +as a senior o4cer in the RA#, in)ited three <unior o4cers to
come to his house to ha)e se* +ith his +ife" The three $ueried this, but said they
+ere persuaded by the defendant that his +ife did +ant to ha)e se* +ith them" 'e
told them that she +ould pretend to refuse in order to stimulate her o+n
e*citement" 2o, the men had se* +ith the +ife, despite the fact that she screamed
and called for her son to call the police" The <ud%e told the <ury that their belief in
the +ife!s consent had to be based on reasonable %rounds" They +ere con)icted"
3rinciple of the case
The 87A held that the <ud%e had misdirected the <ury as the belief in consent had to
be %enuine but need not be reasonable" 'o+e)er, the 87A upheld their con)ictions
as they thou%ht a <ury correctly directed +ould still ha)e con)icted"
R ) .illiams (@PQS)
#acts of the case
The defendant +as on the bus +hen he sa+ +hat he thou%ht +as a man assaultin%
a youth" 9n fact it +as a man tryin% to arrest the youth for mu%%in% an old lady" The
defendant %ot o the bus and as1ed +hat +as happenin%" The man said he +as a
police o4cer arrestin% the youth, but +hen the defendant as1ed him to produce his
police 9D card he could not do so" There +as a stru%%le bet+een the defendant and
the man in +hich the man +as in<ured" The defendant +as con)icted of assault"
3rinciple of the case
The 87A $uashed his con)iction because the <ury should ha)e been told that if they
thou%ht the mista1e +as %enuine they should <ud%e the defendant accordin% to his
mista1en )ie+ of the facts, re%ardless of +hether this mista1e +as reasonable or
unreasonable"
Mista1e and 2elf5defence
L*cessi)e force
9f the <ury accept the defendant!s mista1e meant that he %enuinely thou%ht he +as
actin% in self defence or usin% force in the pre)ention of crime, then the <ury ha)e to
decide +hether the amount of force used +as reasonable in those circumstances as
the defendant belie)ed them to be" 9f the amount of force +as unreasonable in
those circumstances then the defendant has no defence"
R ) &ec1ford (@PQQ)
#acts of a case
The defendant +as accused of murder but pleaded honest mista1en belief in the
need to act in self5defence"
3rinciple of the case
The 3ri)y 8ouncil appro)ed both Mor%an and .illiams"
,ord Mri4ths said that: F7f then a genuine mista#en belief, albeit without reasonable
grounds, is a defence to rape because it negati%es the necessary intention, so also
must genuine belief in facts which if true would ,ustify self9defence be a defence to
a crime of personal %iolence because the belief negates the intent to act
unlawfully.G
Drun1en Mista1e
 9f the defendant is mista1en about a 1ey fact because he is drun1, then it
depends on +hat the mista1e +as about as to +hether he has a defence or
not"
 .here the mista1e is about somethin% +hich means that the defendant did
not ha)e the Mens Rea for the oence then for a speci;c intent oence he
has a defence"
 'o+e)er, +here the oence is one of basic intent then the defendant has not
%ot a defence"
R ) ,ipman (@PSG)
#acts of the case
The defendant and his %irlfriend had ta1en the dru% ,2D before fallin% asleep at her
:at" ,2D causes hallucinations" The defendant thou%ht that he +as at the centre of
the earth and bein% attac1ed by sna1es" .hen he a+o1e he found his %irlfriend +as
dead" 'e had stran%led her and stued a sheet into her mouth belie)in% she +as a
sna1e attac1in% him" 'is con)iction for manslau%hter +as upheld"
3rinciple of the case
The defendant did not ha)e the speci;c intention for murder as he thou%ht he +as
1illin% a sna1e" 'o+e)er, he +as %uilty of manslau%hter because he had )oluntarily
ta1en the dru% ,2D" This +as a rec1less course of conduct and so he +as %uilty of
manslau%hter"
R ) 7!Mrady (@PQS)
#acts of the case
The defendant and the )ictim, +ho +as a friend, had been drin1in% hea)ily- they fell
asleep in the defendant!s :at" The defendant claimed that he a+o1e to ;nd the
)ictim hittin% him" The defendant pic1ed up a %lass ashtray and hit the )ictim +ith
it, the defendant then +ent bac1 to sleep" .hen he +o1e he found that the )ictim
+as dead" The defendant +as char%ed +ith murder but +as con)icted of
manslau%hter"
3rinciple of the case
This +as upheld by the 87A"
R ) 'atton (FGGH)
#acts of the case
The defendant had drun1 o)er FG pints of beer" 'e and the )ictim (another man)
+ent bac1 to the defendant!s :at" 9n the mornin% the defendant claimed he found
the )ictim dead from in<uries caused by a sled%ehammer" The defendant said he
couldn!t really remember +hat had happened but thou%ht the )ictim had hit him
+ith a H foot lon% stic1 and he had defended the attac1" The defendant +as
con)icted of murder"
3rinciple of the case
The 87A held that a drun1en mista1e about the amount of force re$uired in self5
defence +as not a defence"
Mista1es of ,a+
9t is no defence for the defendant +ho causes the actus reus of an oence +ith the
mens rea to say that he did not 1no+ the actus reus +as an oence, i%norance of
the la+ bein% no e*cuse"
R ) Lsop (@QTA)
The defendant, from 9ra$, +as con)icted of bu%%ery" 9t +as le%al in 9ra$ and the
defendant assumed it +as la+ful in Ln%land" 'is i%norance of the Ln%lish la+ +as
no defence"