LICENCE DROIT 2ème ANNÉE

Faculté de Droit
UNIVERSITÉ DE MONTPELLIER

GENERAL PRINCIPLES OF CRIMINAL LIABILITY

Introduction

The aim of this part is to outline the general principles of criminal law and to consider those
principles in the context of certain offences, in particular those relating to the protection of persons
and property.

There is a close relationship between crimes and torts, in that many crimes are also torts (assault
is a good example), but some are not, and there are torts which do not have a counterpart in
criminal law.

It is therefore impossible to define crime by reference to the act which has been performed.

However, the purposes of civil and criminal law differ - so that if, for example, A negligently caused
a collision between his car and B's, A would be prosecuted and punished for reckless driving, or
some other appropriate offence, and B would seek compensation for his injuries by means of a civil
action in negligence. Two characteristics of a crime emerge from this example.

First of all the prosecution: the action is usually brought by the Crown Prosecution Service on
behalf of the Crown and the case will be heard in the criminal courts (magistrates' court or Crown
Court).

The CPS, unlike the plaintiff in a civil action, has no direct interest in the outcome of a criminal
prosecution.

In the US, it is generally the State or the District Attorney who decides to prosecute an alleged
offender.

The second aspect is that of sanctions - the main purpose of bringing a criminal, case is to punish
the wrongdoer.

Although the civil courts recognise the concept of punitive damages (the courts in the United
States are much more willing to award punitive damages than their English counterparts),
punishment goes to the root of criminal law and indeed forms the basis of some of the definitions of
a crime.

There are a number of different ways in which criminal offences may be classified. The most
important now are by source of the offence, by mode of trial and by relationship with the law of
arrest

Reform

The Criminal Law Act 1977 reduced the existing five categories of offence to three - indictable
offences, offences triable either way and summary offences - and the law is now contained in Part
1 of the Magistrates' Courts Act 1980.

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Summary offences :

• Tried by magistrates;
• All summary offences are statutory;
• Maximum custodial sentence usually 6 months.

Offences triable either way

• May be tried either by magistrates in magistrates' court or by judge and jury in Crown Court;
• Certain restrictions on mode of trial – eg criminal damage in relation to value of property;
• Includes offences which range from quite trivial to very serious - eg theft, assault; rape,
murder, manslaughter.
• Accused who chooses trial by magistrates may be sent to Crown Court for sentencing.

Indictable offences

• Tried in Crown Court by judge and jury;

• Trial follows committal proceedings;
• Four classes of indictable offence enables case to be sent to most suitable centre to be
tried by appropriate judge;
• Sentence may be mandatory life for murder) but judge usually has discretion, sometimes up
to statutory maximum.

The elements of a crime

First, it is important to note that in English law a person is presumed to be innocent until proved
guilty.

In order to prove that the accused is guilty of any criminal offence, the prosecution must prove
(burden of proof) “beyond reasonable doubt” (standard of proof) that the accused committed the
act in question and did so with whatever state of mind is required for the particular offence.

The standard of proof in respect of civil cases is “on the balance of probabilities”

The “conduct” is known as the actus reus and the state of mind of the accused at the time of the
offence is known as the mens rea.

Stated like that, the concepts appear to be quite simple, but not only are the actus reus and mens
rea different for each crime, but it is also difficult to reconcile some of the cases, decide precisely
what constitutes the actus reus and the mens rea and analyse the relationship of these elements of
a crime with certain defences, for example automatism.

The general maxim is actus non facit reum, nisi mens sit rea - an act does not make a person
guilty unless the mind is equally blameworthy.

Actus reus

This is sometimes described at the “guilty act” but, although a useful form of shorthand, this may
he confusing since the actus reus may be a state of affairs, the legally relevant surrounding circum-
stances (for example, in rape the fact that the woman does not consent to the sexual intercourse is
part of the actus reus) or, sometimes, an omission, for example where a person who is under a
duty to act in particular circumstances fails to do so.

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“State of affairs” crimes

Sometimes the actus reus may be a state of affairs rather than an act or omission on the part of
the accused.

Re v Larsonneur (1933) is a good example.

In this case a Frenchwoman was arrested as an illegal immigrant in Ireland and brought back to
the UK, where she was charged with being an alien (ie a foreigner) illegally in the UK.

It was sufficient to secure a conviction that she was a foreigner in the UK who had not been given
permission to be here, notwithstanding the fact that she had not chosen to enter the UK.

“Result” crimes / “Conduct” crimes

The courts have distinguished between `conduct' and 'result' crimes.

In certain crimes, a particular result must be achieved before the crime can be charged.

The classic examples are those offences collectively known as homicide, where the death of the
victim must result - this is incorporated into the definition of murder above.

There are a number of problems relating to result crimes - one is the question of unlawfulness. In
murder the death must be brought about unlawfully, and this, too, is part of the actus reus.

The issue of causation can also raise difficult problems : the result must be caused by the conduct
of the accused.

Conduct crimes : the Actus Reus is the prohibited act itself, even if no harm results.

For example : dangerous driving. It is the fact of driving dangerously that is going to be sanctioned,
even if no harm is caused.

Omissions

In general, the criminal law requires a positive act, and a failure to act will usually only amount to
an offence if the law recognises a duty to act in the particular circumstances. It is usually no crime,
for example, to stand and watch someone drown - but it would be if the bystander were the parent
of the child who was drowning. There are important exceptions to this general rule, and in some
cases the law is not at all clear. Most of the cases dealing with omissions to act involve murder or
manslaughter, but there are certain statutory offences where the actus reus is a failure to do
something, for example failure to report an, accident is an offence under s.170 of the Road Traffic
Act 1988.

Duty to act

It has been held in a number of cases that if a person voluntarily undertakes a certain duty and
then fails to perform that duty, then that may amount to an offence.

In Instan (1893) a niece failed to look after her aunt resulting in the death of the aunt - she was
found guilty of manslaughter. A more modern example is Stone and Dabanson (1977).

One reason for the reluctance to extend criminal liability to omissions is the reluctance of English
law to widen the scope of criminal liability beyond currently acceptable limits.

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This reluctance was reinforced by the Court of Appeal in R v Khan and Khan (1998), where it was
held that there is no separate category of manslaughter called manslaughter by omission.

In order for a person to be convicted of manslaughter where the death was caused by an omission
it must be shown that the omission amounted to a breach of duty, and that the requirements of
either constructive manslaughter or manslaughter by gross negligence are satisfied.

In Khan the defendants had supplied a 15-year-old girl prostitute with a quantity of heroin.

It was probably the first time the girl had taken the drug, and she took about twice as much as an
experienced user would have taken. She became ill and went into a coma. It was obvious that she
was in need of medical attention, but the defendants failed to get assistance and left the girl alone
in the flat.

When they returned the following day they found her dead. It was shown that she would have
survived if she had had medical assistance at any time prior to her death.

The defendants were charged with murder and with supplying a controlled drug.

At the trial, the judge withdrew the charge of murder from the jury on the basis that there was no
evidence that the defendants had intended to kill or cause grievous bodily harm to the girl, but he
left to the jury the possibility that the defendants might be convicted of manslaughter 'by omission'
since they had failed to get medical assistance when the girl became ill.

The defendants were convicted of supplying a controlled drug and of manslaughter. One of them
appealed against the manslaughter conviction.

The Court of Appeal quashed the conviction for manslaughter, holding that before a person can be
convicted of manslaughter by omission there must be a pre-existing duty to act and in this case the
existence of such a duty towards the girl had not been considered by the jury and the jury had not
been given any direction by the judge in relation to such a duty.

The judge should have asked the jury to consider whether in the circumstances the defendants
owed a duty to the girl, whether they were in breach of that duty; whether the breach of duty had
caused the death and whether the breach of duty amounted to gross negligence.

A person who fails to perform a contractual duty may be guilty of an offence, as in Pittwood
(1902).

Pittwood was employed to open a gate at a railway crossing to allow traffic through. On one
occasion, he opened the gate for road traffic, and omitted to close it again. The victim was killed
when he drove his car through the gate and Pittwood was convicted of manslaughter. Note that the
contractual duty need not be owed to the victim.

A further situation is where a person fails to perform a duty imposed by law.

The liability of a parent may be analysed in this way. Parents have a duty to protect their children
from harm, so may commit an offence if they neglect them.

Causation

In result crimes the act must cause the result. There must be a connection between the act and the
result.

There is a distinction to be drawn between factual causation and causation in law.

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The 'but for' test is sometimes used to establish factual causation : it must be shown that death
would not have resulted but for the defendant's conduct.

Application of this test only could lead to unjust results, so legal causation must also be
established.

This generally means that the conduct leading to the death must also be blameworthy.

Difficult questions of where the line should be drawn arise. The extremes are clear - A invites B to
dinner, on the way B is run over by a bus. Although B would not have been killed if A had not
invited him to dinner, it would be absurd to suggest that A is guilty of any offence.

At the other end of the spectrum, A points a gun at B with intention to kill him and does kill him by
pulling the trigger; A's conduct has clearly caused B's death and both factual and legal causation
could be proved.

It may happen that the issue of causation is complicated by some intervening act (novas actus
interveniens): supposing that A stabs B, B is taken to hospital and dies as a result of the bad
treatment which he receives there? (see the facts of Smith and Jordan).

Mens rea

In general, public policy demands that a person should not be guilty of a criminal offence unless
the prosecution can prove fault.

This idea of fault resides in the state of mind of the accused when he or she commits the prohibited
act. It is important to note that the actual mental state required varies from one crime to another
and may indeed be the factor which distinguishes one crime from another.

For example, in both murder and manslaughter the actus reus is causing the death of a human
being, but while manslaughter can be committed by gross negligence, intention to kill or to cause
grievous bodily harm must be proved for murder.

An exception to the principle stated above is the concept of strict liability, where no mens rea need
be proved in relation to one or more elements of the actus reus.

Mens rea is literally translated as the 'guilty mind' - but this is unhelpful because it says nothing of
what actually constitutes the guilty mind.

Further, it is not a question of moral guilt, or whether the accused knows that what he or she is
doing is wrong, but of whether the conduct in question was undertaken voluntarily.

So usually mens rea will be constituted by intention, knowledge or recklessness with respect to all
the elements of the offence.

Motive and mens rea are by no means the same thing.

A doctor who administers a lethal dose of a drug to a terminally ill patient is, in the present state of
the law, guilty of murder and a mother who steals bread to feed her starving children is guilty of
theft.

Types of mens rea

Intention

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Certain offences may be committed either intentionally or recklessly, while for others proof of
intention will be required.

It is for the jury to decide whether the accused had the necessary mens rea, and the judges have
been reluctant to lay down definitions of what is meant by the term intention.

It is possible to intend something to happen without necessarily desiring it.

This is referred to as oblique intent.

This was reinforced in Moloney (1985).

The House of Lords considered the meaning of intention in relation to the crime of murder in this
case and, although their Lordships did not say what intention is, they were prepared to indicate
what it is not. They confirmed that it is distinct from both desire and from motive (a person's reason
for doing a certain thing).

It was held in Maloney that foresight of consequences does not necessarily constitute intention.

The accused and his stepfather had been drinking heavily after a party. The evidence showed that
they had laughed and talked until the early hours of the morning.

The stepfather then challenged the accused to see who was quicker at loading a gun.

The accused won and pointed the gun at the stepfather, who taunted.him, saying that he would not
pull the trigger.

Moloney pulled the trigger and killed his stepfather. He telephoned the police and said `I have just
murdered my stepfather'. At his trial he said that he did not intend to kill - he just pulled the trigger.

The trial judge directed the jury that they must convict the accused of murder if they were satisfied
that he had intended to kill his stepfather or to cause him really serious harm and that a person
intended tire consequence of his act if :

(a) he desired it to happen or

(b) he foresaw that it would probably happen whether he desired it or not.

The jury convicted the accused and the appeal eventually reached the House of Lords which held
that foresight of the probability of death resulting from an act did not amount to intention and the
appellant was guilty of manslaughter.

The decision was followed in Hancock and Shankland (1986), where striking miners dropped a
concrete block off a motorway bridge onto the motorway, intending to stop striking miners going to
work. A taxi driver taking miners to work was killed and the defendants were convicted of murder.

The House of Lords upheld the decision of the Court of Appeal to substitute a conviction of
manslaughter.

The law on intention remains open to criticism because it is unclear and it is left to the jury to
decide whether foresight of a certain consequence is evidence of intention or not.

Recklessness

In general terms recklessness means taking an unjustifiable risk.

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It is thus wider than intention and is the mental element required for a great many crimes; it is
therefore important that it should be clearly defined and that its legal meaning should be easily
understood by ordinary people. Unfortunately this is not the case.

Since Metropolitan Police Commissioner v Caldwell (1982) was decided by the House of Lords the
term recklessness carries two different meanings, one subjective and one objective, and some
offences require proof of subjective recklessness, while others require proof of objective
recklessness.

Subjective recklessness (Cunningham- type recklessness)

The use of the terms subjective and objective has been criticised, but the words are still widely
used by judges and academic writers.

When the subjective standard is applied, the accused's mens rea is judged by reference to his own
actual mental state at the time the crime was committed.

Sometimes this type of recklessness is referred to as Cunningham type recklessness, because it

was defined in that case (1957) as applying where :

“the accused has foreseen that the particular kind of harm might be done and yet has gone on to
take the risk of it” (emphasis added).

Of course, the risk taken must be unjustifiable (unreasonable in the circumstances) in order to give
rise to criminal liability.

A first-aid worker would know there is a risk involved in moving a person who has been involved in
a serious accident, but the risk would be justified if the casualty was trapped in a burning motorcar.

Subjective recklessness is required for any offence where the term 'maliciously' is used in the
definition.

Objective recklessness (Caldwell-type recklessness)

Until Caldwell was decided, recklessness was limited to its subjective meaning, because it was felt
(and still is by some people) that the notion of fault in criminal law should be judged only
subjectively, that is by the mental state of the accused himself.

But this idea was overturned by the House of Lords in Caldwell.

The accused bore a grudge against the owner of an hotel. In a state of intoxication, he set fire to
the hotel and was charged under s 1(i) and s 1(3) of the Criminal Damage Act 1971.

In a model direction Lord Diplock said that the accused was guilty if:

“he does an act which in fact creates an obvious risk that property will be destroyed or damaged
and when he does the act he either has not given any thought to the possibility of there being any
such risk or has recognised that there was some risk involved and has nonetheless gone on to do
it.”

There are two ways in which the prosecution can prove Caldwell recklessness:

• where the accused does an act which in fact creates an obvious risk . . . and when he does
the act he has not given any thought to the possibility of there being such risk;
• where the accused does an act which in fact creates an obvious risk and has recognised
that there was a risk involved but has nonetheless gone on to do the act.

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While the second formulation is very like Cunningham recklessness, the first is very much wider
since it involves a situation where an obvious risk (ie a risk obvious to the reasonable person,
although not necessarily to the accused) is created, but the accused has not given any thought to
the risk.

In situations where the accused recognised that there was a risk and has nonetheless gone on to
do the act, there is no need for the objective test to be applied, because the risk was apparent to
the accused himself.

Recklessness as defined in Caldwell has been criticised on a number of points.

First, it has been argued that the objective element - where the jury must decide whether an
obvious risk existed before they can decide whether the accused had failed to give any thought to
the risk - should not play such an important part in determining guilt in criminal law.

The courts' application of the test has also been criticized, especially in relation to Elliott v C, a 14-
year-old of subnormal intelligence who had been out all night and was exhausted and hungry,
poured white spirit on to a carpet in a shed and set it alight.

The shed was destroyed and she was charged under the Criminal Damage Act 1971.

The Divisional Court held that even though the risk would not have been obvious to her, it would
have been obvious to a 'reasonable person' and she was guilty of the offence.

In Reid the House of Lords suggested that there may be situations where, even if there was an
obvious risk, the accused's conduct could be justified if the accused lacked the capacity to
appreciate the risk.

However, this slight qualification of the Caldwell definition is likely to be applied in a very limited
way and indeed the examples given in Reid were concerned with sudden loss of capacity, as in the
case of a sudden heart attack.

Another aspect of Caldwell recklessness which often attracts criticism is the so-called lacuna (or
loophole).

Caldwell imposes liability on those who either realise there is a risk and continue with the act in
question, or where there is an obvious risk, those who give no thought to the risk in carrying he act
in question.

But there is a third possibility: those who consider whether there is a risk and come to the mistaken
conclusion that there is none.

For example : Chief Constable of Avon and Somerset Constabulary v Shimmen (1986).

Here the defendant, who had been practising martial arts, boasted that he could kick at a shop
window, but miss by a narrow margin. In fact he misjudged, kicked the window and was charged
with criminal damage. He argued that he had thought about whether there was a risk and decided
that there was none. The court, however, decided that he knew there was some risk and
nonetheless went ahead with the action of kicking the window

Gross negligence

In some cases, a person is going to cause death through extreme carelessness or incompetence.
Very often the defendants in such cases are people like doctors, electricians or ship's captains,
carrying out jobs which require special skill and care.

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The ordinary principles of the law of negligence apply to ascertain whether or not the defendant
has been in breach of a duty of care towards the victim who has died.

If such a breach of duty is established the next question is whether that breach of duty caused the
death of the victim. If so, the jury must go on to consider whether that breach of duty should be
characterised as gross negligence and therefore as a crime.

This will depend on the seriousness of the breach of duty committed by the defendant in all the
circumstances in which the defendant was placed when it occurred.
The jury will have to consider whether the extent to which the defendant's conduct departed from
the proper standard of care incumbent upon him, involving as it must have done a risk of death to
the patient, was such that it should be judged criminal.

The House of Lords decided that gross negligence should now apply in all appropriate cases of
manslaughter and no distinction is to be made for causing death by driving.

Knowledge

Some crimes require proof of knowledge on the part of the defendant, for example s 22 of the Theft
Act 1968 provides:

(1) A person handles stolen goods if ... knowing or believing them to be stolen goods he
dishonestly receives them . . .

Generally the courts will treat a person who 'turns a blind eye' as if he or she has the requisite
knowledge, but if a person is mistaken, he or she will be judged in accordance with that mistaken
belief, as long as it is reasonable.

Transferred malice

The actus reus and mens rea must be contemporaneous, but this doctrine is qualified by the
doctrine of transferred malice.

If a certain type of harm is intended against a certain person or property, but is actually committed
against another, then the accused will be guilty of the offence.

Latimer (1886) is a good example :

The accused was involved in a fight in a pub. He removed his belt and aimed a blow at his
opponent. It missed, but struck the victim, who was standing nearby. The court held that the
accused was guilty of unlawfully and maliciously wounding the victim.

For the doctrine to apply the actus reus and the mens rea must coincide - in other words both must
be appropriate for the offence charged.

In Pembliton (1876) the accused, again involved in a fight, this time outside a pub, aimed a stone
at an opponent. The stone hit and smashed a window of the pub. It was decided that he was not
guilty of malicious damage (the precursor of criminal damage) since he did not have the
appropriate mens rea for that offence.

Recently the doctrine of transferred malice was considered by the House of Lords in Attorney
General's Reference (no 3 of 1994) (reported in 1997) in the context of the crime of murder.

As described above, to succeed in a prosecution for murder, it must be proved that the victim died
as a result of an unlawful act by the accused (actus reus) and that the accused intended to kill or
cause grievous bodily harm. In this case, the accused, B, stabbed a pregnant woman, who later
gave birth to a premature child. The child died after 121 days. B, who was convicted of wounding
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the mother with intent, was charged with murder after the baby's death. He was acquitted by the
trial court and a reference was made by the Attorney General under s 36 of the Criminal Justice
Act 1972.

The House of Lords held that the foetus was neither a distinct person, nor just an adjunct to the
mother. Rather, it was a unique organism and although an intention to cause grievous bodily harm
could found a conviction for murder where the accused intended to harm the mother, the doctrine
of transferred malice would not apply to impute an intention to harm the person the foetus would
become. Therefore, it was held that B could not have the appropriate mens rea for murder of the
child.

However, B could be convicted of manslaughter resulting from an unlawful and dangerous act (see
page 242), for which it was unnecessary to prove that the act was directed against the person who
died as a result of it.

Strict liability

While most criminal offences require proof of mens sea, there are some, mostly created by statute,
which can be committed without proof of mens rea.

Many such crimes are said to be “regulatory”, in other words they are created to regulate behaviour
and there is no real moral issue and usually little stigma attached to the offence.

Examples include making a false statement in relation to the sale of goods under the Trade
Descriptions Act 1968. Another category of strict liability offence is concerned with important social
issues like health and safety, for example some of the offences under the Health and Safety at
Work Act 1974.

Crimes of strict liability serve a purpose of deterrence and help to promote high standards of care
in areas of public concern. Many such crimes may be committed by corporations, where real
difficulties of proving mens rea may arise.

The most common sanction is a fine, so there is little threat to the liberty of the subject.

On the other hand strict liability is open to criticism, mainly because there is a strong tradition in
English law that a person will only be punished for a crime for which he or she can be shown to be
responsible. It is seen as unfair that in crimes of strict liability a person may be found guilty even
though he or she took reasonable care to prevent the harm from occurring.

For example in Afphacell v Woodward (1972) the defendant company was convicted of allowing
pollution to enter a river. They had installed a mechanism to prevent overflow, but the mechanism
became blocked and pollution escaped into the river.

The company had taken reasonable care, but nonetheless they were found to have caused the
pollution and the House of Lords upheld the conviction.

There are a number of reasons for imposing strict liability, particularly in respect of regulatory
offences: it is argued that because mens rea does not need to be proved, strict liability offences
are easier to enforce and that court time is saved.

Many of the offences concerned are aimed at regulating business and encouraging those who run
businesses to maintain high standards for example in food safety, pollution and other aspects of
business which affect the community. Further in such cases it is considered desirable that those
who make a profit from activities which can cause harm should pay for any harm caused, whether
it is intended or not. It is argued that the imposition of strict liability has some deterrent value.

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Contemporaneity

It is a general requirement of the criminal law that not only must the prosecution prove the
necessary actus reus and mens rea, but it must also be shown that the two elements coincided -
that is they existed at the same time.

However, there are a number of exceptions to this rule.

Consider the facts of Thabo Meli v R (1954) : the appellants struck the victim, intending to kill him.
Thinking (wrongly) that he was dead, they rolled his unconscious body over a cliff in order to make
the death look like an accident. Medical evidence showed that he died later of exposure.

In dismissing their appeal against conviction, Lord Reid said:

It is said that, while the first act was accompanied by mens rea it was not the cause of death;
but the second act, while it was the cause of death, was not accompanied by mens rea. ... It
appears to their Lordships impossible to divide up what was really one transaction in this
way.

The appellants were guilty of murder.

Fagan (1969) is another exception to the contemporaneity rule, but in this case the mens rea was
formed after the offending act was performed.

General defences

This section deals with the 'general defences' to criminal liability. Apart from diminished
responsibiIity the defences discussed here are applicable to all crimes. Diminished responsibility is
relevant only to murder and has the effect, if successfully pleaded, of reducing a charge of murder
to manslaughter. It is considered here because of its close relationship to insanity. Other defences
which are specific to particular crimes are dealt with at the appropriate place,

Defences in criminal law may be classified in a number of ways. Some relate to the actus reus of
the offence, for example consent, while others relate to the mens rea, like intoxication. This
distinction may he relevant, for example in crimes of strict liability where if no mens rea needs to be
proved it would be inappropriate to raise a defence which relates solely to the mens rea.

Another way of classifying defences is as excuses on the one hand and justifications on the other.
In the first, behaviour is excused because for some reason the accused is not to blame for his or
her conduct - examples are intoxication (although as we shall see this is only a defence to certain
crimes) and incapacity - while in justificatory defences the behaviour of the accused is justified by
some external factor, for example the fact that he or she was acting in self-defence.

Infancy

Under the Children and Young Persons Act 1933, as amended in 1963 by the Act of the same
name, a child under 10 is irrebuttably presumed to be incapable of committing any offence.

Until recently children between 10 and 13 (inclusive) could only be convicted of an offence if the
court was satisfied that the prosecution had proved 'malicious discretion', what is that the child
knew that what he or she was doing was `gravely and seriously wrong' (Gorrie (1919)).

This was usually proved by showing that the child told lies about what had happened, ran away
from the police, hid evidence of the crime, and so on. In later cases the courts have said that it did
not matter whether the child knew that what he or she was doing was morally wrong as long as it

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was seriously wrong, and in Coulbourn (1988) the Court of Appeal distinguished conduct that was
seriously wrong from `mere naughtiness or childish mischief'.

Boys under 14 were until recently irrebuttably presumed to be incapable of committing rape or
other offences involving sexual intercourse. This common law presumption was abolished by the
Sexual Offences Act 1993, and boys between 10 and 13 may now in appropriate circumstances be
charged, not only with rape and attempted rape, but also with other offences such as incest and
unlawful sexual intercourse with a girl under 16.

Insanity, diminished responsibility and automatism

These defences are dealt with together because all involve some form of mental disorder, and
there are considerable areas of overlap between them. They all have tight legal boundaries, and
should not be confused with medical conditions.

Insanity

The defence is rarely pleaded, mainly because until the Criminal Procedure (Insanity and Unfitness
to Plead) Act 1991 a person who was found not guilty on grounds of insanity was detained in a
secure hospital until the Home Secretary or a mental health review tribunal ordered release.

In most cases other than murder this was a less attractive proposition even than a determinate
prison sentence. Problems could also arise if the judge in the case considered that the defence
which had been raised amounted to insanity since the same result would follow.

The elements of the defence are contained in the M'Naghten Rules, which were laid down by the
judges of England when asked to advise the House of Lords in the M'Naghten case (1843).

In that case the accused, who was shown by the medical evidence to be suffering from certain
delusions, fired a gun at the Prime Minister, Sir Robert Peel, but killed his private secretary,
Edward Drummond. He was acquitted and when the case came before the House of Lords, the
advice of the judges was sought. The Rules have subsequently been accepted in cases of the
highest authority, and can be summarised as follows:

1. A person is presumed to be sane until the contrary is proved. As a result, the accused
bears the burden of proving insanity, on a balance of probabilities.
2. To establish a defence on the grounds of insanity it must be proved that, at the time of
committing the offence, the accused was suffering from such a defect of reason caused by
a disease of the mind, so that either :
• he did not know the nature and quality of the act he was doing, or
• if he did know that, he did not know that what he was doing was wrong.

Defect of reason

This has been held to mean a defect of reasoning power and is more than temporary
absentmindedness or confusion - see Clarke (1972).

The accused was charged with shoplifting. Her defence was that she had committed the act while
suffering from momentary confusion caused by depression brought about by diabetes. The judge
ruled that this amounted to insanity, so she changed her plea to guilty and appealed. The Court of
Appeal allowed her appeal and ruled that she should be acquitted because she lacked mens rea.

Disease of the mind

The accused's mental state must be caused by a disease of the mind - and external factors such
as violence, alcohol, drugs, or anaesthetics do not amount to a disease of the mind.
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This has led to some curious anomalies.

A diabetic who goes into a hypoglycaemic coma because he failed to take food after taking insulin
is not suffering from a disease of the mind, but if the coma is caused by the diabetes itself, then he
is.

Nature and quality of the act

The accused must not be aware of the circumstances of what he is doing or be able to foresee the
consequences of his act.

In Codere (1916) it was held that this limb of the test refers to the physical nature of the act. A.
person who chops someone's head off thinking he is chopping wood would be unaware of what he
was doing.

Did the accused know that what he was doing was wrong?

The alternative test is whether, if the accused knew what he was doing, he knew that he was doing
wrong.

The meaning of 'wrong' has caused some difficulty, but in Windde (1952) it was held that it means
legally wrong not morally wrong. The accused's wife was insane and had frequently spoken to him
about the possibility of committing suicide. He, suffering from a form of communicable mental
illness and thinking it would be better for her to die, persuaded her to take 100 aspirins. When
arrested he had said 'I suppose I will be hanged for this' - a remark which indicated that he knew
that what he had done was against the law. He was found guilty, and he was indeed hanged.

Diminished responsibility

Murder carries a mandatory sentence of life imprisonment, leaving the judge no discretion in
sentencing.

The defence of diminished responsibility (introduced in fact when the death sentence still applied)
was created to get round this problem.

The defence applies only to murder and has the effect of reducing murder to manslaughter, thus
allowing discretion in sentencing. It was introduced by the Homicide Act 1957, which provides in s
2(1):

“Where a person kills or is party to the killing of another, he shall not be convicted of murder if he
was suffering from such abnormality of mind (whether arising from a condition of arrested or
retarded development of mind or any inherent causes or induced by disease or injury) as
substantially impaired his mental responsibility for his acts or omissions in doing or being a party to
the killing. As with insanity, the accused has the burden of proving diminished responsibility on a
balance of probabilities”.

In Byrne (1960), the Court of Appeal considered the meaning of section 2(1). The appellant was,
according to the medical evidence, a sexual psychopath, who had strangled a young woman.

His early defence was diminished responsibility in that he had been unable to control his
behaviour. The trial judge had directed that s 2 of the Homicide Act did not cover an inability to
control one's actions (Irresistible impulse) and Byrne was convicted of rnurder.

He appealed and the Court of Appeal allowed his appeal, substituting a conviction of manslaughter
for murder (but leaving the sentence unchanged). The Court made several points, including :

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'Abnormality of mind' includes an inability to control one's actions. In this it differs from insanity
under the MNaghten Rules.

It means 'a state of mind so different from that of ordinary human beings that a reasonable man
could term it abnormal'.

Whether the accused was suffering from diminished responsibility is a matter for the jury, not for
medical experts. The jury must take into account all the evidence, so if there is conflicting
evidence, whether it is medical evidence or otherwise, the jury must decide what weight to give it.

It is important to note that the abnormality of mind must result from one of the specified causes,
and that while these have been quite widely interpreted, there are certain things which do not
amount to abnormality of mind. Intoxication itself will not, for example, although if it can be shown
that the brain has been permanently damaged by alcohol, or that the accused could not resist the
impulse to drink, then that may be a disease of the mind: Tandy (1989).

It was decided in Gittens (1984) that if an accused was intoxicated at the time of committing the
offence, then the jury must disregard that fact and must decide whether, in a sober state, the
accused would have been able to rely on the defence.

In Sanderson (1994) the defendant was convicted of murdering his girlfriend after hitting her 100
times with a wooden post The medical evidence was contradictory, with one expert witness, C,
saying that S was suffering from paranoid psychosis which arose from an inherent cause
exacerbated by drug abuse, and the other, B, saying that his paranoia arose from drug abuse
rather than from an inherent cause.

The judge directed the jury to decide which expert evidence they preferred. In answer to a question
from the jury as to whether paranoid psychosis induced by drugs came within s 2(1) as being
'induced by disease or injury', the judge said that where abnormality was alleged to have arisen
from taking intoxicating substances the defence had to show disease or injury to the brain. The jury
accepted the evidence of B and S was convicted.

He appealed.

Allowing the appeal, the Court of Appeal held that paranoid psychosis was a mental illness which
could as a matter of law come within s 2(1). Abnormality of mind could be caused by 'any inherent
cause', which covered functional mental illness as well as physical injury or disease of the body.

The abnormality of mind must have substantially impaired the accused's 'mental responsibility' for
his or her acts or omissions. The impairment need not be total, and it is for the jury to decide
whether the impairment is sufficient.

Automatism

The basis of automatism is that the accused did not carry out the actus reus of the offence
voluntarily, of his own free will. For this reason it is sometimes treated rather differently from a
defence in that the accused is held not to have committed the act-us reus at all because his or her
action was not willed. It is open to criticism on other grounds as well - the boundaries of the
defence are unclear and its relationship with insanity gives rise to the sort of anomaly which is
indefensible in the criminal law.

The defence will apply when the act done by the accused was involuntary in the sense that it was
beyond his or her control. There is much uncertainty surrounding the precise extent of the defence.

It is clear that if the lack of control was brought about by some external cause - the example of a
swarm of bees suddenly attacking the driver of a vehicle was given in Hill v. Baxter (1958) - that
will amount to automatism as long as the lack of control is total.
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If the actions of the accused are purposeful, as the court held in Broom v Perkins (1987), then the
defence will not apply.

In that case the accused, who was a diabetic, caused a collision with another car on his way home
from work. He could not remember the journey and the evidence showed that he had driven
erratically and that he seemed not to be in possession of all his faculties. The Divisional Court, in
an appeal by way of case stated, held that automatism did not afford a defence in these circum-
stances, because his actions in driving the car were voluntary. It is difficult to reconcile this case
with Charlson (1955).

The accused hit his son with a mallet and threw him out of the window. He was charged with
inflictng grievous bodily harm. He was suffering from a brain tumour and the judge directed the jury
that insanity did not apply, but that they could acquit him on the basis of automatism. He was
acquitted.

What can amount to automatism? The cases refer to 'confusion, delusions and strokes', loss of
consciousness caused by concussion, hypoglycaemia, semi-consciousness where the mind has
no control over the actions or situations where the muscles move without the control of the mind as
with 'spasms, reflex actions and convulsions'.

It was thought for a long time that acts done while sleepwalking came within the defence, but in
Burgess (1991) the Court of Appeal said this amounted to insanity, as it was not caused by an
external factor. The distinction between external and internal causes appears to have influenced
the courts in recent cases.

It was established in Quick (1973) that a person who was in a hypoglycaemic state as a result of
taking insulin and then failing to eat could plead automatism.

In such a state, Quick, who was a nurse in a mental home, had assaulted a patient, and the Court
of Appeal ruled that the defence should have been left to the jury.

However the more recent case of Hennessy distinguishes the situation where a diabetic had failed
to take either food or insulin as prescribed, and in a hyperglycaemic state had taken a car without
consent. It was held that the defence of automatism was not available to him since the
hyperglycaemia (high blood sugar) was caused by the disease, not by any external factor, and the
only defence available was insanity!

In contrast, in Quick the hypoglycaemia (low blood sugar) was caused by the external factor of
taking the insulin.

These cases illustrate the difficulty of drawing the line between insanity and non-insane
automatism. Remember that if automatism is accepted as a defence the accused is acquitted,
whereas with insanity the accused is found to be not guilty by reason of insanity and may be
detained in a mental institution for an indefinite period.

Nonetheless, the internal/external distinction was accepted in Sullivan (1984) where it was held
that a person who had kicked a friend in the head while recovering from an epileptic fit could plead
only insanity as a defence.

Duress

Duress is narrowly defined to include only those situations where a person commits the actus reus
of an offence because threats of death or serious physical violence, either against the person
concerned or against some other person, have been made. It is, in a sense, a concession to
human weakness - one It was held that in these circumstances the defence was not available.

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Only threats of death or serious physical violence will be taken into consideration - a threat to
property or to reveal information which may be damaging to a person is not enough.

In R v Cole (1994) the Court of Appeal held that duress could only by used where the threats
related to the particular offence charged. In this case Cole was charged with robbing two building
societies. His defence was inability to repay moneylenders who had threatened him, his girlfriend
and child. In this case the threat related to the debt, not to the robbery.

Necessity

There is generally no defence of necessity in English law. For example a woman who steals bread
to feed her starving children is guilty of theft. This position was established in Dudley and Stephens
(1584).

Following a shipwreck, four men had been adrift in a small boat for several days without food or
water. They were dying of thirst and starvation and there was no immediate prospect of being
saved. Two of them killed the weakest, a cabin boy, in order to save their own lives. Shortly
afterwards they were rescued and on their return to England they were charged with murder. The
court refused to accept a defence of necessity, but their sentence was commuted to six months'
imprisonment.

Duress of circumstance

There is some recent authority for this defence. The case which established the defence is
Conway (1989), where the accused was acquitted on a charge of reckless driving because he
thought two men who approached his car were about to kill his passengers.

This case was followed by Martin (1989) in which the accused, who was disqualified from driving,
drove his stepson to work because his wife threatened to kill herself if he did not. The Court of
Appeal held in this case that duress of circumstance will provide a defence if the accused fears
death or serious bodily injury and a person of reasonable firmness sharing the characteristics of
the accused, would have acted as he or she did. Martin was acquitted.

This is a developing area of law. It is not yet certain, for example, what crimes it will apply to, or
whether in some circumstances the accused will be required to choose the lesser of two evils.

Mistake

English law distinguishes between mistakes of law and mistakes of fact. The former never afford a
defence to a criminal offence (everyone is presumed to know the law and ignorance of the law is
no defence).

A person may even be convicted if he or she commits an offence having been informed by a
lawyer that the conduct in question was lawful.

A mistake of fact, however, may be a defence. Mistake is usually described as a defence, although
the logic of this is questionable since it actually prevents the accused from forming the necessary
mens rea.

In the early case of Tolson (1889) it was held that the mistake must be reasonable, but since the
important case of DPP v Morgan (1976) it is clear that an honest mistake is sufficient.

The facts of that case were these. One of the accused invited three other men to have sexual
intercourse with his wife. He told them that even if she appeared to be protesting or screaming, this
did not signify lack of consent. They were charged with rape and pleaded mistake (that is, they
said they were under the impression that the woman was consenting to the intercourse).

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The trial judge directed the jury that the mistake must be reasonable to afford a defence and the
men were convicted. The appeal reached the House of Lords, which held that a mistake did not
have to be reasonable as long as it was honest. However, the conviction stood, since their
Lordships held no reasonable jury would have believed that the men honestly thought that the
woman was consenting.

Mistake combined with other defences

Drunkenness

If drunkenness induces a mistake, then as a matter of policy; the courts will not take the
drunkenness into account, but there are exceptions.

Self-defence

If person who mistakenly believes that he or she is acting in self-defence will be able to plead
mistake as a defence.

In Williams (1934) the accused, believing that a person was being attacked, went to the rescue. In
fact the person was being lawfully arrested and Williams was charged with assault occasioning
actual bodily harm. He was acquitted on the basis that he did not intend to use unlawful force.

Duress

Mistake has no application in the law relating to duress - a person who pleads duress must have
reasonable grounds to believe that he is being threatened.

Intoxication

The law here is difficult and confused, partly because policy considerations have influenced the
decisions in this area. However some points are clearly established:

The rules apply to alcohol and other drugs which have the effect of making the user aggressive or
unpredictable in his or her behaviour.

It was held in Hardie (1984) that a sedative drug does not fall into the same category, so a person
is not automatically reckless in taking a drug such as valium - it is a matter for the jury to decide.

Only self-induced or voluntary intoxication comes within the rules - so a person whose drink is
spiked or a person who is taking prescribed drugs will be treated differently (and in appropriate
circumstances may be able to plead automatism).

A different argument was accepted by the Court of Appeal in R v Kingston (1993), in which it was
held that in circumstances where a drink or drug was surreptitiously given to an accused and this
had the effect of making him lose his self-control and form an intent which without the drink or drug
he would not have formed, this involuntary intoxication was capable of negativing the mens rea
required for the offence.

However, on appeal, the House of Lords rejected this approach and held that involuntary
intoxication does not provide a defence to a person who was proved to have the necessary
criminal intent when he or she committed the offence, although it may be relevant in relation to
sentencing.

Drunkenness is only a defence if it prevents the accused from forming the necessary mens rea - so
if a person is drunk enough to be less inhibited, but still able to form the intention to kill, then he or
she will be guilty of murder.
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It was held in Attorney General for Northern inland v Gallagher (1963) that a person who forms the
intent to kill and then takes a quantity of alcohol (or drugs) in order to give him 'Dutch courage'
before committing the actus reus is guilty of murder.

Self-defence

Section 3(1) of the Criminal Law Act 1967 provides:

A person may use such force as is reasonable in the circumstances in the prevention of crime, or
in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons
unlawfully at large.

At common law, a person is entitled to use force to protect himself and self-defence includes the
protection of others as well as the protection of property.

The use of force in these circumstances will be lawful, but under s 3 and at common law the degree
of force must be reasonable in the circumstances.

This does not mean that the force must be exactly proportional to the threat - that would be
impossible to measure - but the question of reasonableness is one for the jury.

It was held in Williams (above) that if the accused used force because of a mistake of fact, he has
a defence on the facts as he believed them to be and the mistake does not need to be reasonable.

Consent

Although consent is not really a defence, it requires some mention here.

It is often relevant in crimes involving the protection of the person or of property and is generally a
denial of the actus reus. In some crimes (like rape, for example) lack of consent on the part of the
victim is part of the definition of the offence, while in others it is implied in the term 'unlawfully' - for
example in criminal damage the property must be destroyed or damaged 'without lawful excuse'
and the consent of the owner of the property would give a lawful excuse.

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