Distance Learning Materials

Criminal Law

GUIDANCE TEXT

2009 2010
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2009 2010
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Criminal Law INTRODUCTION

Topics to be studied: • Introduction to criminal law, the appeals process and the burden of proof

1.

OBJECTIVES

By the end of this study guide you should be able to: • • • • 2. Understand what we mean by ‘a crime’ and how offences are classified. Appreciated the appeals system. Explain the criminal burden of proof. Be aware of the suggestions for reform. ESSENTIAL READING 1. This study Guide 2. McAlhone and Huxley-Binns, Criminal Law – The Fundamentals, 2007, Sweet and Maxwell, Chapter One 3. Clarkson and Keating, Criminal Law – Text and Materials, 6th Edition, 2007, Sweet and Maxwell, Chapter One 3. INTRODUCTION

In the criminal law we are concerned only with whether D (the accused) is liable for any offence and, if so, which. It is not a study of procedure, evidence, or sentencing. This question of liability is often complex and the criminal law has been proven to be a difficult area for both students and the judiciary. Thus, even though academic criminal law may not be quite what you expected, we hope and believe that you will find it interesting and enjoyable. This guidance text seeks only to direct your reading – you MUST perform the wider reading directed in order to fully understand the substantive issues. 3.1 What is a crime?

A crime has historically been understood as a wrong against society; conduct that has been recognised as too important to leave to the private citizen wronged to bring civil proceedings. It is then important to define which offences will be subject to regulation by the civil courts and which will be subject to denunciation by the State. As the sociologist Howard Becker set out "Deviance is not a quality of the act the person commits, but rather a consequence of the application by others of rules and sanctions to an offender. The deviant is one to whom that label has successfully been applied; deviant behaviour is behaviour that people so label." (Outsiders: Studies in the Sociology of Deviance, New York, Free Press, 1963, p.9). However, conduct that one individual may subjectively conceive as deviant another may not. The State must then establish the boundaries of criminality and writers have been forced to abandon the search for the ‘nature’ of a crime and to fall back on definitions based on the type of legal proceedings which may follow from the act. In other words, an act is a crime if it ‘is capable of being followed by criminal proceedings, having one of the types of outcome (punishment, etc.) known to follow these proceedings’ (Professor Glanville Williams, 8 CLP 107, p. 123).

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It is therefore a case of the State deciding that certain conduct ought to be criminal because it is the State takes it upon itself to discourage such conduct. In one way, the wheels of change run slowly and it is inevitable that conduct that is no longer considered to be in this category remains criminal, however new criminal offences abound and more than 3,000 offences have been created in the past 10 years (although some were merely enacted to up-date existing provisions). There are a number of reasons the rules governing criminal liability should be clear and certain, primarily in order to enable people to ascertain in advance whether any conduct will or will not involve criminal liability. Unfortunately, as we shall see, this is commonly far from the case. Moreover, the substantive rules of criminal liability define the apparatus of the criminal justice, specifically the interference with personal liberty by way of search and arrest etc. and the power of the courts to convict and sentence. The social control mechanism which is the criminal justice system is founded upon the rules prescribing what a crime is.

CASE BOOK ACTIVITY

Please read Text and Materials from the introduction to Chapter One up to (but not including) the extract by J Kaplan. From your reading is there any conduct (a) which is not criminal which you would like to see made criminal and (b) which is criminal which you think should be decriminalised?

As you will have read, defining criminality is not a moral exercise. As The Wolfenden Committee Homosexual Offences and Prostitution ((1957) Cmnd 247) concluded the criminal law should not be used to impose society’s current moral standards on non-conformist individuals (even assuming these standards are readily ascertainable). This probably represents the prevailing view of the judiciary now. The truth is that whilst there might be a large measure of agreement about the central core of any criminal law, the issue of whether conduct on the periphery should be criminal often involves balancing a number of competing considerations and interests, and is ultimately a matter of social, moral, economic and political judgement. 3.2 Classification of offences

Offences are classified as summary, indictable or triable either way. Summary offences are those less serious crimes which can only be tried in the magistrates’ court without a jury such as common assault, battery, and drink-driving offences. Indictable offences are more serious offences which can be tried in the Crown Court with a judge and jury. Some indictable offences such as murder and manslaughter can only be tried on indictment and this is the sense in which we use the term ‘indictable’ above.

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Criminal Law INTRODUCTION

Offences triable either way are (unsurprisingly) offences that can be tried in either the magistrates’ court or the Crown Court, dependant upon their seriousness. For example theft can range from theft of a chocolate bar to theft of the crown jewels - and is triable either way – summarily in the first case, but on indictment in the second case. Where an offence is triable either way, the magistrates decide whether it should be tried summarily or on indictment, although the accused may elect to be tried on indictment before a jury where the magistrates rule in favour of summary trial. The old distinction between felonies (serious offences) and misdemeanours (less serious offences) was abolished by the Criminal Justice Act 1967, but you will still occasionally come across those terms. 4. APPEALS TEXT BOOK ACTIVITY

Please read Criminal Law – the Fundamentals ‘Structure of the courts and appeals against conviction or acquittal’ to familiarise yourself with the appeals system.

In many of the appeal cases in this syllabus it has been for the Court of Appeal to decide whether the trial judge’s explanation of the law to the jury was correct; as if D may have been prejudiced by an error of the trial judge in explaining the law to the jury, the Court of Appeal must give D the benefit of any doubt and, if the jury might have returned a different verdict, the court must quash the conviction. The rules of substantive law are largely set by appeal cases and much of this text will be devoted to such cases. In the majority of decisions relevant to us, the appeal is at least partly on the ground that the trial judge has got the law wrong in his direction to the jury. It is possible for the Attorney-General to ‘refer’ the case to the Court of Appeal for a ruling on the point of law decided by the Crown Court against the prosecution. Whatever the Court of Appeal’s view on the point of law, D’s acquittal cannot be overturned under this procedure. When D appeals against conviction from the Crown Court he will now appeal on the grounds the conviction was unsafe and may be on a point of law, fact or both. You may be familiar with the rule of ‘double jeopardy’, where a defendant could not be tried for the same crime twice. However, this rule has been partially abolished and if the defendant had been charged with a qualifying offence a retrial may take place if new persuasive evidence comes to light (Criminal Justice Act 2003 s. 75 and s.76). 5. BURDEN OF PROOF

It is a fundamental principle of English law, reinforced by Article 6(2) of the European Convention of Human Rights, that a person is innocent until proved guilty. This means that the legal burden of proof is placed squarely on the prosecution. It must prove ‘beyond reasonable doubt’ that D committed the crime charged (Woolmington v DPP [1935] All ER Rep 1, HL).

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CASE BOOK ACTIVITY

Read the extract from the case of Woolmington [1935] All ER Rep 1 (HL) in Text and Materials. What were the facts of the case? What was wrong in law with the direction which had been given by the trial judge? What is the ‘golden thread’ referred to by Lord Sankey? What exceptions to the ‘golden thread’ were recognised by Lord Sankey?

At trial, the prosecution will first present its case and assuming the prosecution has made out a prima facie case, the defence presents its case. At the close of evidence each side in turn makes a closing address to the court. The trial judge then has to sum up for the jury. He must review the evidence for them, summarising each side’s case, pointing out discrepancies and weak points and focusing the jury on the crucial issues to be determined on the facts. He must also direct them on any relevant law.

TEXT BOOK ACTIVITY

How would the prosecution be able to prove what was going on in D’s head when the gun went off? Please read ‘Burdon and Standard of Proof’ in Criminal Law - the Fundamentals. Which two defences impose a reverse burden of proof?

5.1

Proof of specific issues

In satisfying their legal burden in serious crimes, one of the standard requirements for the prosecution is to prove that D had a particular state of mind at the time of performing the prohibited conduct. This is the mens rea for the crime. The difficulty lies in how it can be proved beyond reasonable doubt what D was thinking at the time of the act as clearly we cannot look inside D’s head. What the jury must do if it wishes to convict in cases where D has not admitted to the requisite intention or foresight (realisation) is to infer that intention or foresight from proof of what actually happened, what D did and the surrounding circumstances. This rule is enshrined in s. 8 of the Criminal Justice Act 1967 (see chapter 3 of the guidance text).
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Criminal Law INTRODUCTION

However, the position is more complicated if D admits to performing the acts but claims he has a defence. It would be ridiculously onerous for the prosecution if it had to deal with and eliminate every possible defence which D might have raised and the law does not require it to do so. An evidential burden is placed on D to put forward some credible evidence to support his claimed defence. Only if he does this will the prosecution then have the legal burden of disproving this defence. 5.2 Reverse proof burdens

As you will have read there are defences where the burden upon D is even higher, where he bears the legal burden of persuading the court that, more probably than not, he satisfies the conditions for the claimed defence. The primary defences that exemplify this approach for your purposes are insanity and diminished responsibility and these will be dealt with in the guidance text at the appropriate chapters. The House of Lords has considered reverse proof burdens in a number of cases and all agree that placing a burden of proof on D is prima facie a contravention of the presumption of innocence guaranteed by Article 6(2) of the European Convention on Human Rights, but that some inroads are permissible. Such inroads must be confined within “reasonable limits”, be “objectively justified” and comply with the “principle of proportionality.” (Lord Steyn in Lambert [2001] UKHL 37). Where any inroad is unreasonable, unjustifiable or disproportionate, the judiciary should invoke s.3(1) of the Human Rights Act 1998 to “read down” the statutory provision so that when it said “prove”, it did not mean ‘prove on the balance of probabilities’ but only “giving sufficient evidence.” Thus an apparently clear imposition of a burden of proof on D is interpreted as a mere evidential burden so as to make the legislative provision comply with Article 6(2). 6. REFORM OF THE CRIMINAL LAW

As you begin your study of the criminal law you will identify inconstancy and confusion – even in key concepts such as intention. The reasons for this are often laudable, as the judiciary seek to stretch legal concepts in order to acquit defendants who have morally justifiable motivations or convict those who are ‘villains’. However this approach has caused incoherency and inconsistency. 6.1 The Law Commission

Consequently, the Law Commission has been at the forefront of the push for reform and its output of material on criminal law in recent years has been phenomenal. We will be referring to the Law Commission’s proposals in throughout this text, and so it is appropriate at this point to explain in general terms something about the work of the Commission. At the centre of the Law Commission’s endeavours is a proposal for a comprehensive criminal code to replace much of the existing law. A criminal code exists in many common law jurisdictions and although our most up to date version was published by the Law Commission as The Report and Draft Criminal Code Bill for England and Wales in 1989 (Law Com. No. 177) a criminal code has been mooted for nearly 200 years.

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In addition to these generalised reports, the Commission has also produced a number of reports and consultation papers on specific topics, such as the defence of intoxication (1995), involuntary manslaughter (1996) and homicide (2005-2006). The procedure is that the Commission in the first instance issues a consultation paper discussing the existing law, indicating its preliminary views on changes and inviting comments from readers. Following consideration of these comments, it issues a report containing its final recommendations, which can differ quite dramatically from the initial consultation paper. These reports and papers often contain more lucid expositions of the current law and its anomalies and it is extremely instructive to read these sections of them. Some of the Commission’s Reports have stirred the Home Office into action, for example in the recently passed Sexual Offences Act 2003 and Fraud Act 2006. 6.2 The Human Rights Act

The Human Rights Act 1998 incorporated the provisions of the European Convention on Human Rights into domestic law, paving the way for accused persons to argue that current interpretations of penal laws contravene rights enshrined in the Convention. Resultantly the courts are charged with reinterpreting existing principles and statutory provisions so as to accord with Convention rights or, in the case of statutory provisions, to precipitate legislative amendment by declaring them incompatible with the Convention. We will address specific articles when they arise. Study Checklist Please check you can now • • • • Understand what we mean by ‘a crime’ and how offences are classified. Understand the process of criminal appeals. Explain the criminal burden of proof. Be aware of vehicles for reform.

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Criminal Law ACTUS REUS

Topics to be studied: • • • Actus reus Omissions Causation

1.

OBJECTIVES

By the end of this study guide you should be able to: • • • Analyse the general concept of actus reus and its constituent elements; Identify the bases on which the law imposes criminal liability for omissions; Describe the principles governing causation in the criminal law and apply them to any given fact situation. ESSENTIAL READING 1. This study guide 2. McAlhone and Huxley-Binns, Criminal Law – The Fundamentals, 2007, Sweet and Maxwell, Chapter Two 3. Clarkson and Keating, Criminal Law – Text and Materials, 6th Edition, 2007, Sweet and Maxwell, Chapter Two and Chapter Four A number of issues will be addressed in this chapter and it is integral that you perform the directed reading to FULLY understand the legal principles. The more problematic legal principles will be addressed in a little more detail but please remember that this text only seeks to guide you through the recommended textbook and the text and materials. 3. INTRODUCTION

2.

Two basic building blocks are required to establish liability for most of the crimes which are considered in this guidance text; actus reus and mens rea. Liability for most mainstream criminal offences requires that: (a) D caused the prohibited conduct (actus reus); (b) with the relevant state of mind or fault element (mens rea); (c) in circumstances where no defence is available (absence of defence). All ingredients must be present to establish criminal liability. The criminal law is not concerned with evil thoughts and criminal liability will not be imposed until the D has carried out the physical conduct prohibited by the particular offence. It is this physical conduct that we call the actus reus of an offence.

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TEXT BOOK ACTIVITY

Please read Criminal Law – The Fundamentals from the beginning of chapter two up to ‘Omissions’ for an introduction to this area and complete the following; The actus reus of most crimes comprises one or more of the following elements: (a) (b) (c)

Please be aware that difficulties commonly arise in identifying the actus reus of an offence, not only for students but for the judiciary! As the Law Commission have suggested in its draft Criminal Code Bill (Law Com. No. 177) it may be more helpful for you to think of the actus reus as comprising the external elements of an offence, namely those elements of the offence that are not concerned with the mental element. Such conduct consists usually of some act or acts on the part of D which produces any necessary consequence or result and/or takes place in any necessary circumstances. Exceptionally the conduct can consist of a failure or omission to act by D, e.g. willful neglect of a child. Even more exceptionally, in a very limited number of cases the actus reus may not require any conduct by D at all. This is where the offence simply requires proof of a defined state of affairs without regard for conduct or consequences. Some of our most well-known crimes require that D causes a particular prohibited consequence or result. Crimes which do require the production of a proscribed consequence are known as ‘result crimes’. Murder is an obvious example because D must cause the death of another person. The offence does not define the nature of D’s conduct required (it can be by way of drowning, stabbing, shooting etc) only that it must cause the forbidden result, in this case the death of another person. An offence may also dictate that certain circumstances must be present for an offence to be complete; the most obvious example of this is the offence of bigamy that requires D already be married.

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ACTIVITY

Section 1 of the Theft Act 1968 sets out the offence of theft is committed when a person ‘…dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it…’ • • Is this a conduct crime or a result crime? In respect of the actus reus, which words describe the conduct which is the central feature of the crime; which, if any, describe circumstances that must be present; and which, if any, describe consequences that must be produced?

If you cannot answer this question please read Criminal Law - The Fundamentals from the ‘Introduction’ though to ‘Omissions’ for a discussion of the principles discussed thus far.

The actus reus of theft is ‘appropriates property belonging to another’; the mens rea (D’s required state of mind) is ‘dishonestly’ and ‘with the intention of permanently depriving the other of it’. The conduct which is the central feature of the crime is ‘appropriates property’ and an essential circumstance which must be present is that the property ‘belongs to another’. Nothing needs to result from D’s act of taking the property (e.g. the owner does not need actually to be deprived of his property) and therefore theft is a conduct crime. No crime can be committed unless all the elements of the actus reus are present, including any prescribed circumstances. For example in the case of White [1910] 2 K.B 124 (a causation case discussed in more detail below) D put poison in his mothers drink, but before she consumed the drink she died of a heart attack. While here we have both an intention to kill (the mens rea of murder) and the death of a human (the prohibited result) however an essential element of the actus reus is that D causes death and it cannot be said here that D caused her death. 3.1 Voluntary Conduct

As you will have read voluntary conduct is exactly as it sounds. D’s muscular movements must be willed by D. If they are not so willed they are regarded as involuntary and D does not perform the actus reus. However, the concept of ‘involuntariness’ is exceedingly narrow. An expression which is often used to denote involuntary conduct in this sense is ‘automatism’.

ACTIVITY

From your reading can you think of any situations where D’s action will not be ‘willed’?

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Goff LJ in Bell [1984] 3 All ER 842 provided a list of circumstances in which D’s conduct will not be willed; including being attacked by a swarm of bees, being affected by a sudden blinding pain and vehicular failure such as a tire blow out. To these rather dramatic examples we may add more common incidences such as; a) b) c) d) suffering a blow to the head medication for the physical conditions of epilepsy and diabetes administration of anaesthetic hypnosis

As a caveat to this principle, if D is at fault in getting himself into the situation, for example, if D falls asleep whilst driving, he can still be convicted of careless and dangerous driving, even though he is not conscious when the car goes out of control, because he ought to have stopped driving when he became drowsy. 4. OMISSIONS

A number of offences can be ‘committed’ by omission. By omission we mean the failure to act in circumstances under which you are under a duty to act.

CASE BOOK ACTIVITY

Can you think of a crime based upon an omission to do something? Should there be a general duty to act? Please read Text and Materials ‘A General Duty to Act’ to (but not including) ‘R v Stone and Dobinson’.

The cases discussed below provide a number of examples of positive duties to act; however you will have undoubtedly found it more difficult to think of offences committed by way of an omission than by way of an act. This is due to a number of reasons, both practical and in terms of preserving individual autonomy. In practical terms it is easier for the law to focus on positive acts that cause harm and which are committed by identifiable individuals. In terms of personal freedom, to place a positive duty to act upon persons has historically been conceived as an interference with personal autonomy. Consequently in order to ascribe responsibility to an individual for a failure to act, the law must define the situation as one where D was obliged to act. D will only be liable if the law imposes a duty on him to act. The key question is then when will the law impose a duty to act?

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4.1

When Will Liability for Omissions Arise?

Our starting point is that the offence itself must be one capable of being committed by way of an omission. Certain offences expressly preclude liability by omission, for example the offence of attempt under the Criminal Attempts Act 1981 (discussed below). Other offences are not so clear.

ACTIVITY

In Fagan v MPC [1968] 3 All ER 442, DC. After a disagreement with a policeman D parked his car on the officer’s foot. When the officer requested he remove the car from his foot, D refused. It was accepted that the initial parking on the foot was accidental. However upon request D refused to remove the car. Do you consider the refusal to move the car an omission to act or a positive act?

Because of doubts over whether it was possible to assault or batter someone by an omission, the court took the view that driving the car onto the foot and leaving it there was a continuous act. A better solution to this situation is addressed below. 4.2 Imposing a Duty to Act

The general position is that there is no duty to act. The law must then decide as a matter of policy when there is a good reason to depart from this general principle and the exceptions to this general rule are addressed below. 4.2.1 SPECIFIC STATUTORY PROVISION Numerous statutory offences impose liability for not doing something. Many minor driving offences impose liability for omissions, for example, failing to display a vehicle tax disc, failing to stop after or report an accident and failing to conform to a traffic signal. Outside of motoring offences that we may consider more serious can be committed by way of omission, for example the wilful neglect of a child. 4.2.2 COMMON LAW DUTY Law students are commonly informed they may walk past a drowning child without affecting a rescue or watch a blind man walk over a cliff without shouting a warning. These rather dramatic examples illustrate the common law stance which emphasises personal autonomy and freedom at the expense of a wider view of social responsibility. The law fixes liability only on those who have a duty to act and confines the scope of liability by a narrow interpretation of the notion of duty in this context.

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ACTIVITY

From your reading can you think of any general situations where the common law might want to impose a duty to act?

We will now turn to the circumstances in which the law has imposed a duty to act. • Contractual Duty

Doctors commonly have to decide whether to discontinue treatment for patients who are in a persistent vegetative state. We can say these doctors have assumed responsibility for their patents care and thus have a duty to continue care. Two questions arise from these circumstances; • • What is the legal position then for these doctors when they withdraw treatment? Is such withdrawal of treatment an act or an omission?

TEXT BOOK ACTIVITY

For the answer to these questions please read Criminal Law – The Fundamentals ‘Contractual Duty and ‘Duty arising out of a public office’.

As you will have read the issue above was explored in the civil case of Airedale NHS Trust v Bland [1993] 1 All ER 821. In this case the House of Lords held the doctors were not obliged to continue such treatment and care (or to institute it, in appropriate cases) where ‘responsible and competent medical opinion’ took the view that it was not in the patient’s ‘best interests’ to continue the treatment and care. This discontinuance of treatment was treated as an omission to act.

ACTIVITY

What would be the legal position if a malicious stranger crept into the hospital and removed the feeding tube causing death?

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The House of Lords stated that in these circumstances the removal of the feeding tube would be an act! Where the failure by D to fulfil a contractual duty to act endangers lives the criminal law also imposes a duty to act. The classic example is found in Pittwood (1902) 19 TLR 37 where D was employed by a railway company to operate a level crossing. He omitted to shut the gate before a train was due with the result that P was killed by a train on the crossing. D was convicted of manslaughter, his contractual obligation to close the gate to safeguard the public having spawned a criminal law duty to the public. • Public Office

The common law has recognised a duty arising from the position of being in public office (Dytham [1979] QB 722). This exception again overlaps with that of contract duty. • Blood or other close relationship

An obvious situation where the law imposes a duty to act is where there is a relationship of parent or guardian and dependant child. Failing to feed or get medical assistance for a child who consequently dies could be either murder or manslaughter depending on whether the parent intended the child to die. In Gibbins and Proctor (1919) 13 CR. APP. R. 134 Gibbins and his common law wife failed to feed Gibbins’ 7-year-old daughter who died. Both parties were charged with murder and it was accepted that Gibbins owed a duty by virtue of being the girl’s father, the stepmother was held to have assumed a de facto parental relationship, but it seems more likely she was liable by virtue of an assumption of responsibility addressed below.

CASE BOOK ACTIVITY

Please read Text and Materials from ‘Duty to Act’, up to (but not including) ‘Where responsibility has been assumed’. From the cases mentioned in this extract here can you list the relationships that give rise to a duty to act?

As you can see, the case law gives little guidance as to what other relationships would give rise to a responsibility; situations such as ‘live in lovers’, brother and sister and separated spouses have not been attended to by the courts. Moreover, the duty placed upon a parent for his or her child does not specify at what age one stops being a child. However, many of these more distant relationships would be caught by our next category. • Assumption of responsibility

If a duty does not arise from the fact of blood or other close relationship, it may be assumed by D’s conduct towards the victim. In many cases in which liability has been found D has takes it upon himself to look after a person unable to care for themselves.
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TEXT BOOK ACTIVITY

Please read Criminal Law – The Fundamentals ‘Assumption of responsibility’ paying particular attention to the principles applied in Stone and Dobinson [1977] 2 All ER 341, CA. For further discussion please read the extract and commentary upon Stone and Dobinson in Text and Materials. If your elderly infirm aunt called to say she was seriously ill would you incur liability if you a) ignored the call and did nothing to help and she consequently died. b) out of the kindness of your heart, took her in and made an attempt to care but failed to call for medical help when she when she became seriously ill and died.

This case suggests the best course of action would have been to have done nothing at all! We would, however, make the point that, it would have been comparatively easy to discharge the responsibility once it had been assumed, by alerting the medical authorities or the local authority’s social services department. The case of Smith [1979] Crim LR 251 suggests you could be released from this duty to act if the person to whom the duty is owed requested D did nothing more, such as summoning medical help. In such cases P must however have full capacity to make such a decision. Instan (1874) 13 Cox CC 75 illustrates the close relationship between incidences of contract and assumption of responsibility. It could be argued that the contract cases (above) are merely instances of an assumption of responsibility by D and the contract is merely evidence of the scope of that responsibility. • Where D creates a dangerous situation

CASE BOOK ACTIVITY

Please read Miller [1983] 1 All ER 978, HL in Text and Materials and the commentary following the case and Criminal Law – The Fundamentals ‘Creation of a dangerous situation’. Was D liable for arson (causing criminal damage by fire)? Yes/No. If yes, on what basis?

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We can formulate the principle applied here thus: Where D inadvertently, without fault, creates by his own conduct a dangerous situation, he will be liable if, on becoming aware of what has happened, he fails to take reasonable steps to eliminate or minimise the danger he has created. The House of Lords in Miller held that D had a duty to take steps reasonably available to him to prevent further damage and was therefore guilty of arson. It would be up to the court to decide what steps are reasonable in any given situation but they would certainly not include any actions putting himself at significant risk D only has to do what is reasonable, e.g. calling the fire brigade.

ACTIVITY

How did the Court of Appeal reason a dangerous situation was created in; DPP v Santa-Bermudez [2004] Crim LR 471 and Khan and Khan [1998] Crim LR 830?

From this legal principle it follows that Fagan (above) should have been convicted on the basis that he had, albeit inadvertently, created the dangerous situation and he was therefore under a duty to act to counteract it when he realised what had happened. His omission to do so with the appropriate mens rea made him therefore liable.

ACTIVITY

Please consolidate your knowledge of omissions by completing the chart below

Omissions – Imposing a duty to act Exception Statutory Case examples Legal Principles

Contractual Duty

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Public Office

Blood or other close relationships

Assumption of responsibility

Creation of a dangerous situation

5.

CAUSATION

Our starting point here is that the law proceeds on the assumption that people are independent actors who are the authors of their own effects in the world. Here we are once again concerning with the accused being criminally culpable. 5.1 Legal Principles

CASE BOOK ACTIVITY

Read the extract from Pagett (1983) 76 Cr App R 279, CA in Text and Materials. What principles of law can you find?

When the issue of causation arises it is for the jury to decide whether the prosecution has established the necessary causal link between D’s conduct and the proscribed result, although it is the trial judge’s duty to direct the jury on the legal principles (Pagett (1983) 76 Cr App R 279, CA). First, we must establish a chain of causation, that is, we must find a link between D’s acts and the consequence. The test to establish the chain of causation has two limbs: (a) D’s conduct must in fact cause the prohibited consequence; and (b) D’s conduct must in law cause that consequence. Both must be satisfied before the harmful consequence will legally be attributed to D’s act.

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5.1.1 FACTUAL CAUSATION

TEXT BOOK ACTIVITY

Please read Criminal Law The Fundamentals from ‘Establishing the Chain of Causation up to (but not including) ‘Breaking the Chain of Causation’. What do we mean by ‘significant cause’?

The test which is often used is called the ‘but for’ test. If the result would not have occurred in the way it did but for D’s conduct, then D has in fact caused that result. For example White (above) illustrates that D’s acts were not a factual cause of death – his mother would have died in the same way whether he had acted or not. The lack of an actus reus prevented D’s conviction for murder itself though he was convicted of attempted murder. 5.1.2 LEGAL CAUSATION Cause in fact is only the first stage, as a principle it could attribute results to too broad a class of people. Imagine D stamps on P’s foot in anger and P then has to catch a bus to the hospital, a bus that is involved in a road accident where P is killed.

CASE BOOK ACTIVITY

Why do you think this second stage is necessary? Why does the criminal law not treat proof of factual causation as establishing that D caused the consequence? Refer to Text and Materials ‘Causation – Introduction’ from the commentary upon the Welansky case up to (but not including) ‘Approaches to Causation’ for a discussion of these issues.

In the example above it will hardly be fair to hold that D caused P’s death in these circumstances. We are then concerned here with attributing moral responsibility. A value judgement or policy decision is being made as to whether or not it is right to ascribe that consequence to D’s act. The point is that any action a person performs may have infinite consequences and many actors may be ‘to blame’; there comes a point where the law will say that it is not fair to legally attribute the harmful consequences to D’s acts. © 2009 Nottingham Law School Page 17

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How then do the courts decide whether D’s act is or is not a legal cause of the relevant consequence? Unfortunately, there is no overriding principle, although there are a number of guidelines and it is these we must go on to address.

TEXT BOOK ACTIVITY

Please check your knowledge of legal causation so far by answering the following questions. Substantial cause was defined by Kimsey as….? Must the actions by D be the only cause? What is the position if 3rd parties contribute to the result?

5.1.3 BREAKING THE CHAIN OF CAUSATION The chain of causation may be broken by a novus actus interveniens (an intervening act). This act must be ‘free, deliberate and informed’ and (broadly speaking) abnormal. Acts that are foreseeable or are compelled by, for example, pressure (see below) will not break the chain of causation. (See Hart and Honore Causation in the Law OUP 1985). These concepts are subject to interpretation in light of policy considerations and as we shall see this has lead to some rather surprising results, particularly in the field of medical intervention and the taking of illegal drugs (the drug cases are addressed further at the chapter dealing with involuntary manslaughter.)

ACTIVITY

If you assaulted D and left him on the beach at low tide would the chain of causation be broken if D died as a result of the tide coming in? D died as a result of a lightening strike? Please refer to the principles above and the relevant portion in your textbook in answering this question.

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5.1.3.1 Interventions by a third party The general principle is, then, that a subsequent, voluntary act of another will absolve D from any further causal responsibility. However, there are a number of important exceptions which qualify this general rule.

TEXT BOOK ACTIVITY

Please read Criminal law – The Fundamentals from ‘Breaking the Chain of Causation to ‘Reform’. The following discussion excludes the facts of many of the ‘exception cases’ and thus it is integral you read both the textbook chapter and those cases indicated at the case book activities.

As you will have read, a number of events may break the chain of causation and the legal principles are addressed in more detail below (excepting the drug cases which will be addressed further at the chapter addressing involuntary manslaughter). Exception 1: Conduct of a third party Firstly, the courts are apparently willing to depart from the general principles where they judge that the ‘purpose and scope’ of the offence charged shows an intention to make D responsible for deliberate acts of third parties (or natural events). In Empress Car Co. (Abertillery) Ltd. v National Rivers Authority [1998] 1 All ER 481 HL the House of Lords held the issue turned on whether the third party’s act: . . . should be regarded as a normal fact of life or something extraordinary. If it was in the general run of things a matter of ordinary occurrence, it will not negative the causal effect of the defendant’s acts, even if it was not foreseeable that it would happen to that particular defendant or take that particular form. If it can be regarded as something extraordinary, it will be open to the justices to hold that the defendant did not cause the pollution. . . . The distinction between ordinary and extraordinary is one of fact and degree to which the justices must apply their common sense and knowledge of what happens in the area. Lord Hoffman held that the same principles applied in the case of a natural event, e.g. a storm damaging the tank as opposed to an act of another. The fallacy in Lord Hoffman’s argument was in the equation of voluntary human acts with natural events. It has never been necessary for the free, deliberate and informed acts of a human third party to be ‘extraordinary’ or unforeseeable in order to break the chain of causation. Happily this principle has now been recognised as one restricted to cases concerning pollution or environmental crime by their Lordships in Kennedy (No. 2) [2007] UKHL 38 – discussed at chapter five. Although the general principle is, then, that a subsequent, voluntary act of another will absolve D from any further causal responsibility you must be sure the third party intervention is voluntary.

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ACTIVITY

From your reading of the case facts in Pagett, why did the Court of Appeal hold the police shooting was not a voluntary intervention by a third party?

A third party’s act cannot be ‘free’ if it was brought about by intimidation, pressure or misapprehension created by D’s conduct. In Pagett the police shooting was not a ‘free’ act and was a reasonably foreseeable outcome of D’s conduct. Exception 2: Conduct of the Victim The ‘escape’ cases, where D’s threatening conduct causes the victim to kill or injure himself whilst attempting to escape (e.g. by jumping out of a building or a moving car), exemplify situations where the victim’s reaction is not a ‘free’ act but induced by pressure from D.

CASE BOOK ACTIVITY

From Text and Materials read the extracts from R v Roberts (1971) 56 Cr App R 95 and Williams [1992] 2 All ER 183, CA (including the commentary upon the case). Did the reaction of the victim in R v Roberts break the chain of causation?

The rule is that, as long as P’s reaction was understandable in the circumstances, i.e. not unexpected, D will be responsible. If the reaction was not reasonably foreseeable, i.e. unexpected or ‘daft’, it will break the chain of causation and D will be held not to have caused the resulting death. As it was put in Williams, the question is ‘whether the deceased’s reaction in jumping from the moving car was within the range of responses which might be expected from a victim placed in the situation in which he was. The jury should bear in mind any particular characteristic of the victim and the fact that in the agony of the moment he may act without thought and deliberation’. In Roberts the victim’s response was not held to be ‘daft’ in the circumstances. Furthermore if the victim is drunk or mentally ill, this must be taken into account in judging the range of responses to be expected to D’s attack (Corbett [1996] Crim LR 594.) Presumably this would only apply to characteristics which are either known to D or about which he ought to have known (a reasonable person test – see Marjoram [2000] Crim LR 372, CA) since only these would be reasonably foreseeable in the circumstances.

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The ‘take your victim as you find him’ rule You will be familiar with this rule from civil law. This rule means that owing to some pre-existing abnormality or condition, P suffers greater harm than would have been otherwise anticipated. Providing D’s acts caused the full extent of the injuries, even though they were not reasonably foreseeable, D will be held liable.

CASE BOOK ACTIVITY

Please read Blaue [1975] 3 All ER 446 in Text and Materials. How did the Court of Appeal extend the rule that you must take your victims physical condition as you find it? Does this principle conflict with any of those you have read so far?

In Blaue the Court of Appeal extended this rule to include not only physical peculiarities of the victim, but also the mental outlook and beliefs of the victim. In fact, as we shall see shortly, this decision is probably better explained on another ground. Does this principle conflict with the principle that an unreasonable reaction will break the chain of causation? Yes, if D must take the victim’s psychological condition as he finds it, then it is D’s hard luck that he happens to have picked on an exceptionally nervous person who is prone to jump out of fast-moving cars.

ACTIVITY

From your reading which other legal principle could be used in order to argue the D in Blaue continued to be legally responsible for the victim’s death?

Exception 3: Medical Treatment Intervention by doctors would seem to constitute ‘free, deliberate and informed’ conduct and should therefore break the chain of causation.

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CASE BOOK ACTIVITY

Please read Smith [1959] 2 All ER 193 Texts and Materials. According to Lord Parker C.J. in what circumstances will D be relieved of liability? How may the principles expressed in Smith preserve the chain of causation in Blaue?

Where there is no doubt that D has caused some initial injury e.g. by a direct attack the question is whether he is also responsible for the death (or more serious injury) which ultimately occurs e.g. after bad medical treatment for the initial injury. The rule that D is responsible for the death if the initial injury is still a ‘substantial and operating cause’ at the moment of death illustrates the possibility of there being two or more persons acting independently (D and the doctor) who are both legal causers of the same death. Blaue may then be explained in the following terms. If P, for whatever reason, refuses to undergo medical treatment which would have prevented the death, the wound will be a substantial and operating cause of death and D will be held to have caused that death. Moreover, the discontinuance of medical treatment which ends in death, e.g. switching off a ventilator, will not break the chain of causation between D’s acts and the death (Malcherek [1981] 2 All ER 422, CA). In an even more dramatic example, if P’s wounds are properly treated and then re-open, whether accidentally or even by P’s own, deliberate act, and P does nothing to staunch the blood, D will be held to have caused the death if the initial wounding is still a substantial and operating cause of death (Dear [1996] Crim LR 595, CA). You can see from this it is uncommon for medical intervention, even negligent medical intervention, to break the chain of causation. One case in which it was held the wound had become ‘merely part of the history’ was Jordan (1956) 40 Cr App R 152, CA in which the original wound caused by D had almost healed when P died because the hospital had continued to administer an antibiotic to P to which he had already shown himself intolerant. Here the treatment was “palpably wrong” and the wound had healed.

CASE BOOK ACTIVITY

Read the leading case of Cheshire [1991] 3 All ER 670 in Texts and Materials. What key statement of law does the Court of Appeal make in this case? If you cannot identify the key legal principle here please refer back to Criminal Law – The Fundamentals ‘Negligent medical treatment’.

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Our attention must then turn to those circumstances in which D’s act is no longer a substantial and operating cause. In these circumstances can D still be said to be the cause of death?

ACTIVITY

Compare the principles expressed in Cheshire with your knowledge of Jordan, how may we distinguish Jordan from Cheshire?

Unless, in the words of Cheshire the intervening act was ‘so independent of’ D’s acts and ‘so potent in causing death’ that D’s acts became ‘insignificant’ the chain of causation will be preserved, even though the initial wound is no longer a substantial and operating cause at the moment of death. In Cheshire, it is clear that the court viewed the consequences flowing from the medical treatment of the victim as being directly caused by D’s initial acts. The court would (perhaps worryingly for us!) regard negligent medical treatment in the modern health service as within the range of normal or rather reasonably foreseeable risks arising from hospitalisation. In contrast in the case of Jordan the treatment was both potent in causing death and independent of D’s acts, although some academics still argue Jordan was wrongly decided. D’s responsibility is even clearer where P is killed not by the wound, but by an unexpected reaction whilst undergoing proper medical treatment for the wound, e.g. allergy to anaesthetic (see the ‘take your victim’ rule above and also Malcherek [1981] 73 Cr App R 173, CA). 5.2 Reform The Law Commission’s Draft Criminal Code Bill 1989 does little to clarify the law, using the same elastic concepts as the case law. Clause 17 reads: (1) Subject to subsections (2) and (3), a person causes a result which is an element of an offence when a. he does an act which makes a more than negligible contribution to its occurrence; or b. he omits to do an act which might prevent its occurrence and which he is under a duty to do according to the law relating to the offence. (2) A person does not cause a result where, after he does such an act or makes such an omission, an act or event occurs a. which is the immediate and sufficient cause of the result; b. which he did not foresee, and c. which could not in the circumstances reasonably have been foreseen.

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ACTIVITY

Please consolidate you knowledge of these principles by completing the following chart.

Exceptions Exception 1: Conduct of a third party

Case examples

Legal Principles

Exception 2: Conduct of the victim - including the egg shell skull rule

Exception 3: Medical Treatment

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TEXT BOOK ACTIVITY

Please finish Chapter Two of Criminal law -The Fundamentals paying particular attention to the diagram at the end of the chapter.

6.

INCOMPLETE ACTUS REUS

Although the law is reluctant to intervene until the full actus reus of the crime has been completed an attempt to commit an offence demonstrates both dangerousness and intent (in the everyday sense). The problem lies in determining how far along the line towards the commission of the substantive offence D must go before he is regarded as having performed the actus reus of an attempted crime. Section 1(1) of the Criminal Attempts Act sets out ‘If, with intent to commit an offence to which this section applies, a person does an act which is more than merely preparatory to the commission of the offence, he is guilty of attempting to commit the offence.’ Whether what D has done is ‘more than merely preparatory’ is a question of fact for the jury, although the judge can rule that the acts in question are not reasonably capable in law of amounting to an attempt (s. 4(3)). The first point we can make is that the reference to acts in s. 1(1) means that it is presumably not possible to be guilty of attempting to commit a crime of omission. The second point is that the act(s) must be ‘more than merely preparatory’.

CASE BOOK ACTIVITY

Please read the extracts from Rowley (1992) 94 Cr Ap R. 95, CA and Jones [1990] 1 WLR 1057, CA in Text and Materials Where the D’s acts here ‘more than preparatory’?

It is clear from these cases that D had to have gone very close to the last act before there would even be sufficient evidence for a jury to be able to conclude that acts were ‘more than merely preparatory’. In Rowley the notes only sort to ‘engineer a preliminary meeting’ and in Jones the court noted the obtaining of the gun, shortening it and putting on a disguise were only preparatory acts.

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7.

COINCIDENCE OF MENS REA AND ACTUS REUS

As you will have already read it is a general rule of liability that the mens rea or fault element prescribed by the crime charged must coincide with the performance of the actus reus. However the courts have shown willingness to, perhaps unnecessarily, treat this principle a little loosely. The best example of judicial creativity in this field is illustrated by the case of Thabo Meli [1954] 1 All ER 373, PC.

CASE BOOK ACTIVITY

Please read Thabo Meli [1954] 1 All ER 373, PC in Text and Materials. Can you identify the problem with the coincidence of actus reus and mens rea in this case? What solution did the court find? Can you think of an alternative solution based upon principles discussed earlier in the guidance text?

The Privy Council held ‘it was impossible to divide up what was really one series of acts in this way. There is no doubt that the accused set out to do all these acts in order to achieve their plan, and as parts of their plan . . .’. Here the Privy Council hold that it is enough that D has the mens rea at any time during the ‘series of acts’ which led to death. This reasoning was also adopted in the case of Church [1965] 2 All ER 72, CCA where D, with the mens rea for murder, beat a woman unconscious and, in a panic and thinking she was dead, threw her into a river. At the time she was alive but died from drowning. The court held that the jury could have convicted of murder ‘if [it] regarded the appellant’s behaviour from the moment he first struck her to the moment when he threw her into the river as a series of acts designed to cause death . . .’. This seemed to extend the principle in Thabo Meli to a case where there was no planned series of acts and the disposal was thought of only after the initial attack (see also Le Brun [1991] 4 All ER 673, CA). However, remember that in light of the causation discussion above that the conduct need not be the only cause of death; can we not say that the accused’s act of knocking D unconscious, which was accompanied by the mens rea for murder, was a substantial cause of death? The act of rolling D off the cliff could not be regarded as breaking the chain of causation. It was then perhaps unnecessary to adopt the ‘continuing transaction’ analysis. In Le Brun the court recognised that an alternative way of solving the problem was the causation analysis. In its view it could not ‘be said that the actions of the appellant in dragging the victim away with the intention of evading liability broke the chain which linked the initial blow with the death’.

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ACTIVITY

What is the position in the converse case where, when D performs the initial act causing the harm, he does not have the mens rea, but when he learns of the true situation, he does have the mens rea? You have already encountered this situation earlier in the chapter. Refer back to check your answer.

Again, it is not necessary to create an exception to the coincidence principle, as long as we rely on the principle enunciated by the House of Lords in Miller (above) which founds liability on D’s intentional omission to counteract the dangerous situation he has inadvertently created. Clause 31 of the draft Criminal Law Bill 1993 prefers the idea of a ‘continuing actus reus’, but achieves much the same result as the Miller principle (Law Com. No. 218). Study Checklist Please check you can now • • • • Understand the general concept of actus reus and its constituent elements; identify the bases on which the law imposes criminal liability for omissions; describe the factual and legal principles governing causation in the criminal law and apply them to any given fact situation; appreciate how the chain of causation may be preserved.

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Topics to be studied: • • Mens rea Strict Liability

1.

OBJECTIVES

By the end of this chapter you should be able to: • • • • • • 2. Identify and describe the basic concepts of mens rea; Analyse the concept of intention and understand its relationship with motive and subjective recklessness; Explain the difficulties and uncertainties surrounding the mens rea of murder; Analyse recklessness and it from negligence; Identify when the doctrine of transferred malice applies in a given fact situation; Explain the nature of strict liability. ESSENTIAL READING 1. This study Guide 2. McAlhone and Huxley-Binns, Criminal Law – The Fundamentals, 2007, Sweet and Maxwell, Chapter Three 3. Clarkson and Keating, Criminal Law – Text and Materials, 6th Edition, 2007, Sweet and Maxwell, Chapter Two and Chapter Five

In this chapter you will be directed to read a number of cases. It is very important that you take the time to perform this reading and answer the set questions as the principles discussed here provide the backbone for the offences you will go on to study. 3. INTRODUCTION

If you cannot remember the distinction between the actus reus and the mens rea of an offence please return to the introduction of the actus reus chapter to refresh your memory. Mens rea is one of the most important concepts in criminal law supplying the element of culpability for an offence. Here we are then concerned with the state of mind of the defendant at the time the actus reus was committed. Before we look at mens rea concepts in detail, it might be useful to have an overview of the most frequently used states of mind and fault elements in the form of the following diagram.

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Figure 1 Mens rea in relation to doing an act or omitting to act and/or producing a consequence SUBJECTIVE (D’s own view – depends on what the court finds D was thinking) Subjective (Cunningham) INTENTION D’s aim or purpose is to do the act or produce the consequence forbidden RECKLESSNESS D consciously takes the risk of the prohibited act or consequence i.e. he realises it might happen OBJECTIVE (Depends on the court’s view of how D ought to have behaved in the situation not on D’s state of mind) Objective (Caldwell) RECKLESSNESS (effectively abolished by G) D gives no thought to an obvious risk of the prohibited act or consequence resulting NEGLIGENCE

Ordinary Negligence Gross Negligence D falls short of the standard expected of the ordinary, prudent person

D falls seriously short of the standard expected of the ordinary, prudent person

Extreme Carelessness ‘Grey area’ known as oblique intention

Average Carelessness

This diagram is merely indicative and the definitions given are far from being comprehensive. You should find it a useful aide-mémoire and we would recommend you to refer back to it, whenever you become confused about the basic mens rea concepts and the relationships between them.

Subjectivity There are two subjective states of mind to consider here – intention and subjective recklessness. Some crimes can be satisfied only by proof of intention, making it necessary to know where intention ends and recklessness begins. We hope the following diagram will make the general idea clearer.

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Figure 2

Subjective mens rea

Subjective recklessness D is aware he might do the prohibited act/cause the prohibited result

Intention D is aware he might do the prohibited act/cause the prohibited result and he aims to do it

The grey area sometimes called oblique intention which, in effect is intention even though D does not aim to do the prohibited act/cause the prohibited result.

4. 4.1

INTENTION Direct intention

Although intention appears to a fairly straightforward concept, the courts have struggled to define its limits, despite a number of recent attempts by the House of Lords. The difficulties and uncertainties surrounding the definition of intention generally stem from the issue of how far, if at all, intention stretches beyond the core notion of direct intention (the core of our diagram 2) and into ‘non-purpose’ (the grey area of diagram 2) Non-purpose intention has often been referred to as ‘oblique intention’ or ‘indirect intention’.

ACTIVITY

Please write down any synonyms you can think of for ‘intention’?

Possible synonyms you have identified include, desire, aim or purpose. In Mohan the Court of Appeal, said that intention meant: ‘a decision [by D] to bring about . . . the commission of the offence which it is alleged D attempted to commit, no matter whether D desired that consequence of his act or not’. It follows that where D undoubtedly intends to kill i.e. it is his purpose or aim to kill; this is ‘direct intent’.

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ACTIVITY

If D takes a pot-shot at P aiming to kill him, does he intend to kill even though he is a rotten shot and P is outside the normal range for D’s gun? Please read Criminal Law – The Fundamentals, ‘Intention’ and ‘direct intent’.

As Smith and Hogan state “If D has resolved to kill P and he fires a loaded gun at him with the object of doing so, he intends to kill. It is immaterial that he is aware that he is a poor shot, that P is nearly out of range, and that his chances of success are small. It is sufficient that killing is his object or purpose, that he wants to kill, that he acts in order to kill.” (Criminal Law (8th ed., 1996), p.57.) It is integral that you understand that this is a subjective test.

CASE BOOK ACTIVITY

Please read Director of Public Prosecutions v Smith [1961] A.C 290, HL AND the commentary following the case in Text and Materials. What does section 8 of the Criminal Justice Act 1967 set out?

4.2 Oblique Intention Oblique intention is where D foresees a consequence as almost certain to occur as a result of his conduct. Here, D’s primary purpose can, at least theoretically be achieved, without producing the forbidden result. Two key concepts have concerned the law here. (a) The first is how much foresight of a result amounts to intention. For example, if D foresees a result as possible, that is clearly not the same as intending it; but what about where he foresees the result as probable, highly probably or virtually certain? How much foresight equals intention? This is addressed below. (b) Once we know how much foresight equals intent, then we must ask whether intent is a matter of fact or law. This issue is one which is addressed below and in more detail at the section headed ‘Foresight and Intention - What is the relationship?’

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At this point we should state that the judge should avoid directing the jury as to the meaning of intention unless he feels the jury is unable to return a verdict without assistance.

CASE/TEXT BOOK ACTIVITY

You should now explore point (a) ‘how much foresight of a result amounts to intention’ by looking at the historical key cases in chronological order in Text and Materials and Criminal Law – The Fundamentals. Please bear in mind the leading case is now Woollin [1998] 4 All ER 103 which is addressed below.

Case

Brief facts

What state of mind was found to satisfy the mens rea for murder?

Hyam v DPP [1974] 2 All ER 41, HL

Moloney [1985] 1 All ER 1025

Hancock and Shankland [1986] 1 All ER 646

Nedrick [1986] 3 All ER 1

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The leading case - Woollin [1998] 4 All ER 103

CASE BOOK ACTIVITY

Read the speech of Lord Steyn in Woollin in Text and Materials. This speech is of utmost importance in understanding the current legal position regarding oblique intention – ensure you read the passage carefully and check you thoroughly understand the principles expressed in this case.

In Woollin Lord Steyn confirmed the Nedrick direction that the prosecution must prove foresight of virtual certainty subject to one slight change, that the jury should be directed they were not “entitled to find…unless” - instead of the Nedrick formulation of “entitled to infer…unless”. 4.2.1 FORESIGHT AND INTENTION – WHAT IS THE RELATIONSHIP? WE MUST NOW RETURN TO POINT (B) ABOVE, whether foresight of a consequence as a virtually certain is a matter of fact or law. Students commonly struggle with this concept and it is worth taking the time to appraise this area very carefully.

TEXT BOOK ACTIVITY

Text Book Activity Begins’ up to (but not including) Re A at the ‘Common Forms of Mens Rea’ chapter.

As you will have read the Court of Appeal in Nedrick took a restrictive view as to when it was permissible for the jury to draw the inference of intention from foresight: . . . the jury [is] not entitled to infer the necessary intention unless [it] feel[s] sure that death or serious bodily harm was a virtual certainty (barring some unforeseen intervention) as a result of the accused’s actions and that the accused appreciated such was the case. Where a man realises that it is for all practical purposes inevitable that his actions will result in death or serious harm, the inference may be irresistible that he intended that result, however little he may have desired or wished it to happen. The decision is one for the jury to be reached upon a consideration of all the evidence. Lord Lane CJ came close to saying that realisation by D that the harmful consequence is virtually certain is a species of intention in stating ‘the inference may be irresistible’. However, he could not say that it was intention because the House of Lords in Hancock had categorically stated that it was not intention.
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In Woollin the House initially appeared to take the step denied to the Court of Appeal in Nedrick and rule that where D foresees a consequence as virtually certain, he intends that consequence. On that view, intention extends beyond aim or purpose and would include foresight of virtual certainty (but nothing less than virtual certainty). Such foresight would no longer be merely evidence from which a jury might infer intention: it would amount to intention (a definitional interpretation – see Text and Materials below at the case book activity)

ACTIVITY

Is this then the definitive statement of law from this case? Are any statements made that potentially conflict with the principle that that foresight amounts to intention?

In the concluding part of the Woollin judgment, the House appear to have reverted to a slightly modified Nedrick test; stating the jury would not be entitled to find the necessary intent unless they felt sure the prohibited consequence was virtually certain to result from D’s actions and that D appreciated this was the case. If it is a form of intention as was set out earlier in the judgment and the jury find that D did foresee the consequence as virtually certain to result, they must find intention and it therefore misleading to talk about ‘being entitled to find’ it. That implies a discretion which, according to the earlier part of the judgment, they do not have. This issue is addressed further below. Consequently, an ambiguity remains, one that has been addressed in two later cases; Matthews and Alleyne [2003] EWCA Crim 192 and Re A (Children) [2001] 2 WLR 480. 4.2.2 THE POST WOOLLIN CASES Before we look at the post Woollin cases it is worth considering why the courts may wish to give the jury discretion in this area.

ACTIVITY

Can you think of any policy reason why the House of Lords have not obliged juries to find intention where they were satisfied that D, whilst not aiming to kill, foresaw death as virtually certain ? Read the article by R.A Duff ‘Intention, Agency and Criminal Liability’ and the following cases of Matthews and Alleyne [2003] EWCA Crim 192 and Re A (Children) [2001] 2 WLR 480 in Text and Materials.

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Is foresight of a result as a virtual certainty the same as intention as a matter of law? Or might it be as a question of fact?

In answer to the first question, it may well be the case that the House wanted to give the jury an area of discretion in non-purpose cases so as to allow them not to find intention in ‘deserving’ cases. This is especially true of what some writers call ‘double effect’ cases where D has a legitimate primary purpose but realises the virtual inevitability of the illegitimate sideeffects of his actions. The difficulty with this approach is that it is uncertain. Individuals may not know what a particular jury would adjudge to be morally acceptable. It may then be better to admit that the intention is present and to articulate a defence to liability based on necessity or a special doctor’s defence. In answer to the second question you will hopefully have identified a conflict in the law. In Re A the majority of the court held that Woollin meant that the doctors performing the operation would intend to kill, whereas in Matthews and Alleyne [2003] EWCA Crim 192 (without referring to Re A), the Court of Appeal rejected the idea that the law had ‘reached a definition of intent in murder in terms of appreciation of virtual certainty.’ The Court did not ‘regard Woollin as yet reaching or laying down a substantive rule of law’ but in an admirable statement of reality thought that ‘once what is required is an appreciation of virtual certainty of death, and not some lesser foresight of merely probable consequences, there is very little to choose between a rule of evidence and one of substantive law.’

TEXT BOOK ACTIVITY

Please read reading Criminal Law - The Fundamentals from the discussion regarding Re A and Matthews and Alleyne to ‘Unresolved Issues’ and complete the table below.

Case Hyam

Evidential or Substantive? Please include any critique directed at the decision.

Moloney

Hancock and Shanklin

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Nedrick

Woollin

Mathews and Alleyne

Re A

The intention cases above have all concerned the offence of murder. Thus the question arises as to whether they set out a definition of intention that applies across the criminal law. Walker and Hayles (1990) 90 Cr App R 226, CA applied the cases to a charge of attempt (admittedly it was attempted murder) and they have also been applied to s. 18 of the Offences Against the Person Act 1861 in Bryson [1985] Crim LR 669, CA. Consequently it would appear that the comments in those cases also apply to intention in the law generally. Although then the House of Lords in Woollin (now the leading case on intention) entered the caveat that ‘intent’ does not necessarily have ‘precisely the same meaning in every context in the criminal law’ we would suggest that it will only be in exceptional situations that the courts will depart from the Woollin view of intent whatever the offence in question. 5. INTENT AND ATTEMPTS Under s. 1(1) of the Criminal Attempts Act, D must intend to commit the offence alleged to have been attempted.

CASE BOOK ACTIVITY

Read the commentary upon the mens rea for an attempt in Text and Materials at chapter 5 and the extract from Mohan [1976] QB 1, CA that follows. Direct intent seems to encompass more than a single purpose or aim. How is it defined?

The answer is that intent does not encompass mere foresight of a possibility, of a type of recklessness, but does include undesired consequences of a deliberate act; ‘proof of specific intent, a decision to bring about, insofar as it lies within D’s power, the commission of the offence which it is alleged the accused attempted to commit, no matter whether the accused desired that consequence of his act or not’. A person can be convicted of an attempted crime only where it is his intention to commit the full offence.

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CASE BOOK ACTIVITY

Section 1(2) provides that a person can be guilty of attempt ‘even though the facts are such that the commission of the offence is impossible’. What about the situation contemplated where, unknown to D, the prevailing circumstances make it impossible for him to complete the offence that he is intending to commit? Please read Shivpuri [1986] 2 All ER 334 at chapter 5 of Text and Materials

We may therefore summarise the law on impossibility as follows. As long as D intended to commit the offence in question and had done an act which was more than merely preparatory to the offence he intended to commit, even though, unknown to him, it could not be committed, he would be guilty of attempt no matter why it was impossible to commit. 6. INTENTION AND MOTIVE

It is a basic principle of English law that motive is generally irrelevant to criminal liability. For example, if D intends to kill, he has the mens rea for murder whether or not he feels or would be regarded by people generally as morally blameworthy. Desire is also irrelevant here. You may intend to kill even though you fervently wish V did not have to die. Mohan [1975] 2 All ER 193 says that a decision to kill is intention ‘no matter whether D desired that consequence of his act or not’. There are two primary reasons why the law should want to exclude issues surrounding motive from the question of criminal liability. • First and most important, it would undermine the law’s claim to define what is legally wrong. Acceptance that a ‘good’ motive could avoid legal wrongness would enable alternative views of right and wrong to compete with the criminal law’s right to impose social order and raise issues of subjective morality. The second reason is to preserve the law’s individualist conception of responsibility. Each person is a distinct individual, acting in isolation from his social context and held accountable and responsible for his actions. To allow an examination of why D acted as he did in deciding whether he is blameworthy would introduce difficult considerations of the extent to which legal responsibility is negated by the social context and mores in which D lives and operates.

Equally, it is generally unnecessary to show that D knew he was committing a crime because such a state of mind will be no part of that required by the definition of the offence. If D knows he is or may be committing the actus reus of the crime, there is no need to prove that he realised that such conduct constituted a criminal offence. Nonetheless, there are certainly cases where a good motive has led the courts to the view that the ingredients of the offence were not established where it is inconceivable that they would have so held had D’s motive been bad for example see the cases of Steane [1947] KB 997 and Gillick v West Norfolk Area Health Page 38

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Authority [1985] 3 All ER 402 in Criminal Law - The Fundamentals at chapter eleven for a similar line of reasoning. 7. MOTIVE AND DEFENCES

A final, important note on motive, however, is that it might be an essential consideration in the elements of a number of the general defences to criminal liability. Thus, D will avoid criminal liability for violence inflicted in using reasonable force in self-defence or the prevention of crime. His reason for acting (i.e. his motive) must be self-defence or the prevention of crime. Similarly if D’s motive for committing the ‘crime’ is threats of serious violence if he does not, this could give him the defence of duress by threats. A laudable motive may open the way for the defence of necessity (or, at least, duress of circumstances) to be invoked. 8. 8.1 OTHER ‘FORMS’ OF INTENTION Further intent

‘Further’ and ‘ulterior’ intent are terms which are synonymous and can be used interchangeably. They arise where a crime is so defined that the mens rea includes an intention to produce a consequence which goes beyond (is ulterior to) the physical conduct required by the actus reus of the crime. The classic example of ulterior intent is to be found in s. 9(1)(a) of the Theft Act 1968 which broadly sets out that a person is guilty of burglary if he enters any building or part of a building as a trespasser with intent to commit any such offence as: theft, criminal damage or grievous bodily harm. The offence is one of ulterior intent because it must be proved that at the time of entering the building or part of the building the defendant intended to committ theft, to cause criminal damage or inflict grievous bodily harm. 8.2 Specific intent

The term specific intent will be used in this guidance text and your text book to mean an offence for which voluntary intoxication may be a defence and will be dealt with at the relevant chapter. 9. RECKLESSNESS

In essence, recklessness means unjustifiable risk-taking, i.e. actions involve a risk of the prohibited conduct or consequence occurring and it is unreasonable in the circumstances to take that risk. For many crimes proof of either intention or recklessness will secure a conviction (for example s.20 OAPA and s.47 OAPA). Therefore if a person is reckless as to the prohibited consequence that will often be enough. The only way to find out if proof of recklessness is enough for a conviction in any particular case is to examine the definition of the offence charged.

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ACTIVITY

What do you understand by the term recklessness? Try to think of some examples of reckless behaviour.

9.1

Unjustifiable risk

In both types of recklessness, subjective or objective, the risk of the proscribed consequence which D is taking must be an unjustifiable risk. It must be unreasonable to run the risk of the harmful consequence.

ACTIVITY

If P has been injured by D engaging in conduct which D had realised, before engaging in it, might cause injury to others, can you explain why we might not regard him as reckless in relation to causing injury?

Many of our everyday activities involve the risk of, say, injuring another or damaging property. It is an objective not a subjective question. It is not whether D thinks that it is unjustifiable but whether the court decides that it is unacceptable. In making that judgment the court will balance the social utility of the activity against the probability of the harmful consequence occurring coupled with the seriousness or gravity of that consequence if it does ensue, e.g. an ambulance driver on his way to an emergency would receive more latitude than someone who is late for a concert.

ACTIVITY

Once the risk has been judged to have been (objectively) unjustifiable, the next question is to consider the perspective from which we judge the risk. (a) If we judge the risk from whether D foresaw it or not, is that a subjective or objective test? (b) If we judge the risk according to whether a reasonable person would have foreseen it, is that a subjective or objective test?
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9.2

Subjective Recklessness

At this point, to refresh your knowledge, please reappraise the subjective mens rea chart above. The key element in subjective recklessness is that D must know that he is taking a risk of the forbidden consequence occurring. He knows it might happen but he carries on regardless deliberately taking the risk. If the court decides the risk was unjustifiable, D is subjectively reckless in regard to it. Subjective recklessness suffices for a number of offences including 20 and 47 of the Offences Against the Person Act 1861, the offence of common assault and since G [2003] UKHL 50 criminal damage.

CASE BOOK ACTIVITY

1. Read the extract from the case of Cunningham [1957] 2 All ER 412 in Text and Materials. What does the word ‘malicious’ in section 23 Offences against the Person Act 1861 mean according to the Court of Appeal? 2. Read Stephenson [1979] 2 All ER 1198 in Text and Materials. If D does not foresee a risk, can we say he was subjectively reckless or not?

You can hopefully see, then, that if D does not foresee a risk D cannot be said to be subjectively reckless. Subjective recklessness is not satisfied on the basis of what D should have foreseen, but what he did foresee.

ACTIVITY

Suppose you see an old car tyre on top of a cliff and you decide to roll it over the cliff edge on to the beach below. If it strikes and injures someone on the beach, what would determine whether you (a) intended to injure or (b) were subjectively reckless as to injury?

If you were hoping (or aiming) to injure someone, you would intend it. Intention can also be found from the fact that D realised that injury was virtually certain (Woollin). If you knew that people were packed on the beach below, this might be feasible. In terms of subjective recklessness, the prosecution would have to show two things:

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(a) that you were aware of the risk of injury; and (b) that it was unreasonable in those circumstances for you to take that risk. You need to recognise injury was a possibility, however slight (Chief Constable of Avon v Shimmen (1986) 84 Cr App R 7, DC; DPP v A [2001] Crim LR 140, DC). If, however, the possibility of injuring never occurred to you, subjective recklessness would be ruled out. 9.2.1 RECKLESSNESS AND WILFUL BLINDNESS If D is willfully blind, he suspects that facts or circumstances exists but deliberately refrains from enquiring further in case he learns the unpalatable truth. In the ordinary case, the courts will read the term ‘knowingly’ as embracing wilful blindness, which is sometimes referred to as knowledge of the second degree.

ACTIVITY

In Westminster City Council v Croyalgrange Ltd [1986] 2 All ER 353, HL, D was charged with the offence of ‘knowingly’ permitting his premises to be used as a sex establishment without a licence. In the light of the discussion above, what do you think would suffice as the mens rea for this offence?

Where ‘knowingly’ appears, it will normally be construed as applying to all the elements necessary for the actus reus, not just one or some of them. Therefore in the Croyalgrange case, D had to ‘know’ that the premises were being used as a sex establishment and that there was no licence. ‘Know’ was, as usual, construed to include not only actual knowledge of these two facts but also wilful blindness as to them (a form of subjective recklessness). 9.3 Objective recklessness

As we have stated it is likely that the House of Lords’ decision in G has effectively abolished objective recklessness. However it held an importance place in the criminal law and you must understand both its rise and its demise.

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CASE BOOK ACTIVITY

Please read Metropolitan Police Commissioner v Caldwell [1981] 1 All ER 961 in Text and Materials. What model direction did Lord Diplock set out in this case? ‘A person is reckless as to whether or not any property would be destroyed or damaged if:

1)

2) Which of these elements is essentially subjective recklessness? Concentrating on element 2 of Lord Diplock’s statement, in what way does this differ from subjective recklessness? How did Lord Diplock justify reading recklessness in the Criminal Damage Act as objective recklessness?

CASE BOOK ACTIVITY

Read Elliott v C [1983] 2 All ER 1005, DC in Text and Materials. Would the risk have been obvious to C if she had thought about it? Read the case of G [2003] UKHL 50 including the commentary upon the case and the evaluation of the law that follows. Summarise the grounds for overruling Caldwell.

Now please read Cunningham’.

Criminal

Law

The

Fundamentals

‘The

journey

to

G

via

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ACTIVITY

This is a good time to pause and take stock of your progress so far before we move on. Please revisit the grid and circle above. Are you reasonably satisfied that you can: • • • • • Define direct intent? Explain the concept of oblique intent? Define subjective recklessness? Define what objective recklessness was, and why it was so controversial? Explain why the House in G overruled Caldwell?

10.

NEGLIGENCE

Negligence is a failure by D to act in conformity with an objective standard decided on by the court looking back on what actually happened in the situation. D’s actual state of mind at the time of his actions is irrelevant. The yardstick used by the court in judging D’s conduct is how it would expect a reasonable person to have behaved in those circumstances.

TEXT BOOK ACTIVITY

Please read the section on Negligence in Criminal Law – The Fundamentals for an overview of the two forms of negligence.

11.

SOME OTHER MENS REA WORDS

Maliciously - As discussed above it is now settled that the term ‘maliciously’ imports a requirement of subjective recklessness and can be regarded as synonymous with that expression (Savage; Parmenter [1991] 4 All ER 698, HL) Wilfully - According to Lord Diplock in Sheppard [1980] 3 All ER 399, HL the term wilfully imports the mens rea of intention or recklessness; it does not merely mean to act voluntarily. Dishonestly - Dishonesty is an important constituent of many crimes against property such as theft and fraud. We shall therefore reserve our examination of it until we deal with theft.

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Awareness - A new mens rea term of “awareness of risk” was suggested by the Law Commission in its report, ‘Murder, Manslaughter and Infanticide’ (Law Com No 304, 2006), to be used in a new ladder of homicide offences of first and second degree murder. “Awareness,” would involve “conscious advertence to the risk”. 12. MISTAKE AND MENS REA

The question of whether D’s liability is affected where he makes a mistake about the situation is dealt with extensively later in this text. Whether a mistake does negate D’s mens rea can only be ascertained by identifying the precise mens rea required for the crime charged. A mistake may prevent D having the mens rea. Where the crime charged requires proof of at least subjective recklessness in relation to that part of the actus reus about which the mistake has been made, there is no need for the mistake to be reasonable.

ACTIVITY

Before the Sexual Offences Act 2003 re-defined it, the offences of rape required, among other things, proof that D knew or was subjectively reckless as to the fact that the victim was not consenting. If D had sexual intercourse with P, believing that she was consenting when she was not, would he have satisfied this mens rea requirement?

Because an unreasonable mistake will still prevent D having the necessary subjective recklessness, D lacks the necessary mens rea and cannot be convicted of rape. Thus, a finding that D did genuinely make a mistake and believed that his victim was consenting is incompatible with a finding that he knew she might not be consenting.

ACTIVITY

What kind of offences would require the mistake to be reasonable before it could possibly negative the fault element of the crime? Are there any offences where even a reasonable mistake as to a component of the actus reus could not prevent liability?

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Offences which can be satisfied by proof of an objective fault element such as negligence could not be defended by pleading an unreasonable (ordinary negligence) or grossly unreasonable (gross negligence) mistake. If the mistake is unreasonable then, far from negating your mens rea, the mistake actually supplies it because it establishes the fault element of negligence. By definition it must be negligent to make an unreasonable mistake. One final thought concerns offences of strict liability which we deal with below. This means that no fault element is required in relation to one or more elements of the actus reus. It follows that there is no mens rea or blameworthiness for the mistake to negate and so even the most reasonable mistake in the world will not avail the defendant. (Prince (1875) LR 2 CCR 154 note the doubt about Prince in B v DPP [2000] 2 WLR 452, HL below – and that the offence in question has been repealed by the Sexual Offences Act 2003). The issue of mistake is very much bound up with mens rea. There are, however, many more complex issues which it raises but these can be postponed until we address mistake later in the guidance text. 13. TRANSFERRED MALICE

In a case of ‘transferred malice’ the situation is that D aims to kill or injure X but accidentally misses and kills or injures Y instead.

CASE BOOK ACTIVITY

Please read ‘Transferred Malice’ up to (but not including) ‘Mistake’ in Text and Materials for an introduction to and criticisms of the doctrine.

Judgments in the House of Lords imply (though do not clearly express) that the doctrine of transferred malice extends only to transferring a mens rea of intention and not, for example, one of subjective recklessness. The proposed cl. 32 in the Law Commission’s draft Criminal Law Bill would allow both intention and subjective recklessness to be transferred. However, one may question whether the doctrine of transferred malice is needed as a separate doctrine at all. For example, for the offence of murder proof that D caused the victim’s death by conduct accompanied by an intention to kill would automatically satisfy the definition of the crime charged. The ‘transfer’ of intention would not be an issue.

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ACTIVITY

If you throw a stone at P intending to injure him but he ducks and the stone breaks a window in the building behind him, will your intention to injure P supply the mens rea for a charge of criminal damage to the window? Please refer to Criminal Law – The Fundamentals for the answer to this question.

14. 14.1

STRICT LIABILITY Introduction

An offence of strict liability means an offence which requires no blameworthiness on the part of D (i.e. no mens rea or even negligence) in respect of at least one element of the actus reus. Strict liability offences are not uncommon and must be contrasted with those rare offences of absolute liability. An absolute offence is an offence which, not only does not require proof of any mens rea or negligence, or even require proof that D’s conduct was voluntary but does not admit of any defence. The established absolute offences are offences where the actus reus involves proof of a ‘state of affairs’. Confusingly, the courts regularly use the term ‘absolute offence’ to mean simply ‘strict liability offence’.

CASE BOOK ACTIVITY

Please read Larsonneur (1933) 24 Cr App R 74 and Winzar v Chief Constable of Kent, The Times, 28 March 1983 in Text and Materials. In Larsonneur why was the student held liable? Other than deportation in what other circumstances would she have committed the offence?

The Court of Criminal Appeal refused to imply any requirement of culpability or voluntariness and presumably would have arrived at the same decision even if D had been kidnapped in Eire and brought to the UK by her kidnappers! Similarly in Winzar we may certainly argue it was not Winzar’s fault he was drunk in the highway. In contrast to absolute liability offences, strict liability offences, like all other offences, always need the element of voluntariness and thus may be negated by pleading any of the general defences. However, strict liability crimes will not require any other culpability in respect of one Page 47

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or more components of the actus reus( see Prince [1874–80] All ER Rep 881 in Criminal Law – The Fundamentals). 14.2 The Development of Strict Liability

CASE BOOK ACTIVITY

Please read Text and Materials from ‘Are Strict Liability Offences Justifiable’ up to (but not including) ‘Enforcement’. How are offences of strict liability justified?

Strict liability is almost exclusively confined to statutory offences. The common law offences of public nuisance and criminal libel are often said to be crimes of strict liability but the matter has yet to be definitively established. However, the House of Lords in Lemon [1979] 1 All ER 898 appears to make the common law offence of blasphemous libel a strict liability crime. 14.3 How do the courts decide on strict liability?

The courts have not been consistent in their decisions and this makes predicting what they will decide in respect of an offence which has not been the subject of a court decision a difficult exercise. Since we are almost exclusively concerned with statutory offences, the exercise is one of statutory interpretation. Theoretically, the court is simply endeavouring to ascertain the will of Parliament as expressed in the wording of the offence. If that wording expresses the mens rea for the offence clearly, e.g. by using words like ‘intentionally’, ‘recklessly’ or ‘negligently’, there is no problem. Equally, if the wording expressly provides that the offence is to be strict liability in one or more respects, there is again no problem, although it is rare for Parliament to do so. The problem comes when, as happens surprisingly often, Parliament does not provide expressly one way or the other.

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14.3.1 PRESUMPTION OF MENS REA

CASE BOOK ACTIVITY

Read Sweet v Parsley [1969] 1 All ER 347 in Text and Materials. What is the role of the judiciary when confronted with a statutory provision which is silent as to mens rea? If you cannot identify the relevant portion of the opinion please refer to the relevant section in Criminal Law - The Fundamentals.

The Privy Council in Gammon (Hong Kong) Ltd v Attorney-General of Hong Kong [1984] All ER 503 strongly reiterated the importance of this presumption. Please note the principles expressed in Gammon from Criminal Law – The Fundamentals

1)

2)

3)

4)

5)

Bringing this up to date the strength of the presumption in favour of mens rea was stressed by the House of Lords in the important decision of B v DPP [2000] 2 WLR 452.

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CASE BOOK ACTIVITY

Please carefully read B v DPP [2000] 2 WLR 452 in Text and Materials. Please make a note of the factors their Lordships stated should be taken into account when deciding whether an offence is one of strict liability.

Under the new Sexual Offences Act 2003 strict liability has been instituted in relation to age when the offence is against one under the age of 13 in order to specifically protect children under this age. – Please note this does not usurp the general presumption of mens rea for other offences expressed in B v DPP. 14.3.2 REGULATORY OFFENCES VS. TRULY CRIMINAL OFFENCES

Where the court regards an offence as regulatory (sometimes also referred to as quasicriminal), the presumption of mens rea is much weaker. It follows that one manner of assessing whether an offence is strict liability or not is to classify the offence as either truly criminal on the one hand, or regulatory on the other.

ACTIVITY

Can you suggest some examples of the sort of offences which might be termed ‘regulatory’? Please read Criminal Law – The Fundamentals ‘True Crimes’ for a discussion of the distinction between regulatory offences and truly criminal offences.

CASE BOOK ACTIVITY

Please read Muhamad [2003] 2 WLR 1050 in Text and Materials. What ‘test’ did the Court of Appeal prefer over the criminal/regulatory distinction?

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The Court of Appeal favoured a ‘seriousness’ test: ‘the more serious the offence, the greater weight to be attached to the presumption’. However, given that regulatory offences tend by and large to be ‘less serious’ offences compared with ‘truly criminal’ offences, the different approach may not matter unduly in practice. The Court also rejected the idea that the imposition of strict liability contravened Article 6 of the European Convention on Human Rights (as did Kearns [2003] 1 Cr App 7 CA). The sentence attached to an offence has also been relevant when deciding upon the seriousness of the offence (see Blake [1997] 1 All ER 963 and cf. Harrow LBC v Shah [1999] 3 All ER 302 and the Storkwain case). 14.3.3 THE STATUTORY CONTEXT As stated the court are in actuality engaged in an exercise of statutory interpretation. It is their job to give effect to the intention of Parliament as expressed in the words used to define the offence and any decision of the courts must involve a close analysis of the statutory wording, and also the contexts in which it appears.

CASE BOOK ACTIVITY

Please read the extract from Pharmaceutical Society of Great Britain v Storkwain Ltd [1985] 3 All ER 4 in Text and Materials. How may reading the offence in context reveal Parliaments intention? For further discussion see Criminal Law – The Fundamentals ‘Necessary implication to displace the presumption’.

Light may be thrown on Parliament’s intention by comparing the wording of the offence charged with the wording used for other offences in the surrounding sections or subsections of the same act. The court may also derive some assistance by examining the wording under previous enactments and comparing it with the wording for the same offence in the current statute. The same wording would confirm Parliament’s intention not to alter the position, whereas changed wording may lead the court to reassess its previous classification (cf. Smedleys Ltd v Breed [1974] 2 All ER 21, HL). The court may also reason by analogy from similarly worded offences in statutes covering different activities. For example, offences involving ‘selling’ or ‘using’ appear in many different contexts. We might also point to ‘causes’, which is generally interpreted as not importing mens rea (unless qualified in the statute by an express mens rea word). Finally, a large number of offences are phrased in terms of ‘permitting’ or ‘allowing’ something to occur. The tendency hitherto has been to regard both as implying a mens rea of knowledge (including wilful blindness) on the basis that one cannot permit something without being aware that it is or at least may be happening (James & Son Ltd v Smee [1954] 3 All ER 273, DC). On
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the other hand, the offence of ‘permitting’ a vehicle to be used whilst uninsured has been held not to require any knowledge or even negligence that the vehicle was in fact uninsured (Chief Constable of Norfolk v Fisher [1992] RTR 6, DC). 14.3.4 SOCIAL CONCERN The presumption of mens rea can be displaced if the offence is one of social concern (see Gammon). For difficulties in applying this principle see Criminal law - The Fundamentals. 14.3.5 VIGILANCE AND COMPLIANCE From your reading at the beginning of this section you will have noted that one of the primary aims of strict liability is to encourage greater vigilance, particularly in terms of regulating businesses. Thus the presumption of mens rea can only be displaced where strict liability will encourage such vigilance.

TEXT BOOK ACTIVITY

To consolidate your knowledge of these elements please complete the strict liability chapter in Criminal Law - The Fundamentals. You may find the chart below useful for revision of these elements.

Deciding upon Strict Liability

Comments and cases

Presumption of mens rea

Regulatory versus truly criminal (including seriousness)

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Sentencing provision

Statutory Context Surrounding statutory context

Historical context

Similarly worded offences

Social Concern

Vigilance and Compliance

14.4 Challenges under the European Convention on Human Rights You will see there is one issue that we have alluded to so far, yet not addressed; the challenges made under the European Convention on Human Rights to the imposition of strict liability.

ACTIVITY

From your reading do you think strict liability is contrary to Article 6 or 7 of the European Convention on Human Rights?

While it has been confirmed (see Barnfather v Islington LBC [2003] 1 WLR 2318 and R v G and the Secretary of State for the Home Department [2006] EWCA Crim 821 CA) that strict liability offences cannot be challenged as being contrary to Article 6, as 6(2) does not extend to consideration of the substance of a domestic offence, challenges under Article 7 are of more Page 53

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interest. Where Article 7 provides for clarity in the criminal law as we have seen strict liability offences are rarely clearly defined in statute and a challenge under this section may, in the future, be successful. 14.4 Can Strict Liability be Justified?

ACTIVITY

From your reading thus far briefly outline the justifications for imposing strict liability. Is the doctrine justifiable? Do the benefits outweigh the criticisms?

Study Checklist Please check you can now • • • • • • identify and describe the basic concepts of mens rea; analyse the concept of direct and oblique intention; understand its relationship with subjective recklessness; analyse the concepts of subjective and objective recklessness and distinguish recklessness from negligence; identify when the doctrine of transferred malice applies; explain the nature of strict liability and when and the justifications and criticisms of its imposition.

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Criminal Law NON-FATAL OFFENCES AGAINST THE PERSON

Topics to be studied: • • Non-Fatal Offences Against the Person Consent

1.

OBJECTIVES

By the end of this chapter you should be able to: • • • • • 2. define and analyse assault and battery; define and analyse the offences created by ss. 18, 20 and 47 of the OAPA 1861; identify the problems surrounding the mens rea of s. 47; explain the differences between ss. 18 and 20; explain the concept of ‘unlawful’ force. ESSENTIAL READING 1. This study guide 2. McAlhone and Huxley-Binns, Criminal Law – The Fundamentals, 2007, Sweet and Maxwell, Chapter Five 3. Clarkson and Keating, Criminal Law – Text and Materials, 6th Edition, 2007, Sweet and Maxwell, Chapter Three and Chapter Seven. 3. INTRODUCTION

This chapter is concerned with offences of violence falling short of killing people. You will be familiar with a number of these offences from common usage and particularly from the media – however please disregard any assumptions you have as you will find the substantive law is very different. 4. THE COMMON LAW OFFENCES - ASSAULT AND BATTERY

Here we have the ‘least serious’ offences – ones which do not require the victim to have suffered any injury. Please note that the term assault is commonly used by laypeople and lawyers alike as a ‘catch all’ term. However, at common law there are two quite distinct offences of assault (technical assault) and battery (physical assault). Although these are common law offences the penalties are now prescribed by s. 39 of the Criminal Justice Act 1988. 4.1 Technical assault

This offence is committed where D intentionally or subjectively recklessly causes the victim to apprehend immediate unlawful force to his person.

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TEXT BOOK ACTIVITY

Please read Criminal Law – The Fundamentals from the Introduction up to (but not including) ‘Battery’. Now please list 3 ways in which you could assault someone.

There are numerous possibilities including pointing a gun at P, waving your fist under P’s nose, riding your bicycle at P or throwing a stone at P. If in any of these cases you actually touch P, you could be committing battery as well as assault. 4.1.1 The ACTUS REUS – APPREHENDING IMMEDIATE UNLAWFUL FORCE TO THE PERSON Apprehension of immediate violence It is essential that P actually apprehends violence to himself so that if the threatening actions are unseen by P and done without his knowledge or if, say, P knows that the gun pointing at him is unloaded or an imitation, no psychic assault is committed. It is unnecessary to prove any physical contact between the defendant and the victim, contact being the hallmark of battery (physical assault). The definition requires there to be an apprehension of immediate violence and this was recently confirmed by the House of Lords in Ireland [1997] 3 WLR 534. (The consolidated appeal Ireland;Burstow is referred to extensively in this chapter and it would be valuable to take the time to read this case – perhaps as a revision exercise.)

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CASE BOOK ACTIVITY

Case Book Activity The table below identifies three key cases in which the courts have interpreted the term immediacy. Please read the extracts from Text and Materials at chapter seven, from R v Ireland up to and including the commentary upon the Stalking Consultation Paper. Please complete the table below as an aide memoir for the future. Case Ireland [1997] 3 WLR 534 Brief Facts Decision regarding Immediacy

Smith v Chief Superintendent, Woking Police Station (1983)

Constanza [1997] 2 Cr App R 492

It seems that, in order to meet an emerging social evil, known fashionably as stalking, the courts stretched the crime of assault towards a more general one of making threats of violence. As you will have read the irony is that this occurred just at the time Parliament was enacting some new bespoke offences to deal with stalking and other forms of harassment in the Protection from Harassment Act 1997. Section 4 of the 1997 Act creates an offence carrying a maximum of five years’ imprisonment of causing ‘another to fear, on at least two occasions, that violence will be used against him . . .’. No immediacy requirement here but P has to fear not just that violence may be carried out (as for assault) but that it will be carried out. Assaulting by words alone? In Ireland, for Lord Steyn, with whom the remaining judges concurred, ‘A thing said is also a thing done. There is no reason why something said should be incapable of causing an apprehension of immediate personal violence, e.g. a man accosting a woman in a dark alley saying, ‘‘Come with me or I will stab you’’.’ (see also the Court of Appeal in Constanza [1997] where an assault had taken place by letters).

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Words negativing assault

ACTIVITY

From your reading is it possible for words to negative an assault? For the answer to this question refer to the case of Tuberville v Savage (1669) 1 Mod Rep 3.

Unlawful force As an essential element of all of the non-fatal offences, this will be dealt with at the end of the chapter.

ACTIVITY

An assault is committed where D intentionally or subjectively recklessly causes the victim to apprehend immediate force to his person. To satisfy the mens rea, what does D have to intend or foresee that P might be thinking?

4.1.2 MENS REA OF AN ASSAULT The prosecution must prove either an intention to create in P the expectation of the immediate application of force to his person or, alternatively, subjective recklessness as to that, i.e. a realisation by D that P may think that D is about to apply force to P’s person (Venna [1975] 3 All ER 788). (Subjective recklessness see Spratt [1991] 2 All ER 210, CA and Parmenter [1991] 2 All ER 225, CA). 4.2 BATTERY OR PHYSICAL ASSAULT

Battery is committed where D intentionally or subjectively recklessly applies unlawful force to another. Battery is usually but not necessarily preceded by a psychic assault.

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TEXT BOOK ACTIVITY

Please read the discussion of battery in Criminal Law – The Fundamentals. What is an essential element of the offence of battery?

4.2.1 ACTUS REUS – APPLYING UNLAWFUL FORCE TO ANOTHER The House of Lords in Ireland confirmed that it is essential that there be an actual application of force by D to P so that there could be no battery where the activities of a stalker who did not touch the victim caused psychiatric harm. However, the notion of ‘force’ is extremely wide and the slightest touching will suffice (see Day (1845) 1 Cox CC 207; Thomas (1985) 81 Cr App R 3, CA). However, according to Sherriff [1969] Crim LR 260, for D merely to pull away from someone attempting to hold him is not in itself a battery. Indirect battery? Suppose someone frightened you into jumping out of a window so that force was applied to your body when you hit the ground. Would this be the actus reus of battery? Although case law establishes that, if grievous bodily harm results, this can constitute an offence under ss. 20 or 18 of the OAPA 1861 (depending on D’s mens rea), the courts have never clearly determined whether, if no injury resulted, it would constitute the offence of battery. With reference to your textbook please complete the following table with the facts and decisions reached in these cases.

Case

Brief Facts

Decision

DPP v K [1990] 1 All ER 331, DC

Haystead v Chief Constable of Derbyshire [2000] 3 All ER 89

Wilson [1983] 3 All ER 448, HL

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Battery by omission? Fagan v MPC [1968] 3 All ER 442, discussed at chapter two, expressed the view that a mere omission to act, even though it results in an application of force to P, could not constitute a battery.

ACTIVITY

The case of Fagan, DPP v K and DPP v Santa-Bermudez [2004] Crim LR 471 can all be explained by way of the Miller [1983] 1 All ER 978, HL principle. What is this principle? If you cannot remember please return to chapter two of the guidance text for the answer.

4.2.2 MENS REA OF BATTERY The prosecution must prove an intention to apply unlawful force to another or subjective recklessness as to the application of such force, i.e. realisation by D that unlawful force might be applied as a result of his actions.

ACTIVITY

Would D have the mens rea for battery if he thought he was preventing P from assaulting a third party when P was in fact effecting a lawful citizens arrest against that third party? Can we say that D here intends or is subjectively reckless as to the application of unlawful force?

The above example illustrates the facts of Williams (1984) 78 Cr App R 276, CA. This case highlighted the importance of an intention to apply unlawful force; thus because of his mistake D lacked the intention to apply unlawful force, nor did he realise that he might be applying unlawful force, and so was not guilty. This specific issue will be discussed further when we address self defence.

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5. THE STATUTORY OFFENCES If harm results from the assault or battery (actual or grievous), then there can also be an offence under the 1861 Act.

SECTION 47 OF THE OFFENCES AGAINST THE PERSON ACT 1861 Whosoever shall be convicted on indictment of any assault occasioning actual bodily harm shall be liable . . . to be imprisoned for any term not exceeding five years . . .

TEXT BOOK ACTIVITY

Please read Criminal Law – The Fundamentals from the discussion of ‘Assault occasioning actual bodily harm’ up to (but not including) ‘wounding and grievous bodily harm’.

5.1.1 ACTUS REUS – ASSAULT OCCASIONING ABH Assault Although the term assault is used in the statutory offence this has been held to include an assault and a battery (see above). Occasioning ‘Occasioning’ is synonymous with the term ‘causing’ and whether the assault can be said to have caused the harm depends on applying the normal principles of causation considered mainly in Chapter 2 in connection with actus reus.

ACTIVITY

How did D ‘occasion’ the offence in the case of Roberts (1971) 56 Cr App R 95? What kind of reaction by the victim in Roberts would have broken the chain of causation? For the answer to this question please see the discussion of the actus reus of section 47 in Criminal Law - The Fundamentals.

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Actual Bodily Harm Using your textbook please note how the following cases have defined ABH.

Case

Principle

Donovan [1934] 2 K.B 498

Brown [1993] 2 All ER 75, HL

Chan-Fook [1994] 2 All ER 552

Ireland

5.1.2 MENS REA OF S.47

ACTIVITY

What is the respective mens rea for assault and battery?

The House of Lords in the consolidated appeals of Savage; Parmenter endorsed the view in Roberts that s. 47 does not require proof of any mens rea in relation to the causing of harm. It does not matter that D neither intended nor foresaw any harm. The only mens rea needed for s. 47 is either intention or subjective recklessness as to the application of force (i.e. the mens rea for battery) or intention or subjective recklessness as to putting someone in fear of immediate force (i.e. the mens rea for psychic assault).

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ACTIVITY

What is the difference between a common assault and an offence under s. 47 OAPA?

It follows from the above that the only difference between s.47 and common assault is the requirement to cause actual bodily harm (G [2001] Crim LR 898 CA). If there is no common assault, there is no s.47 offence either (Blackburn v Bowering [1994] 3 All ER380 CA).

SECTION 20 OF THE OFFENCES AGAINST THE PERSON ACT 1861 …unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person, either with or without any weapon or instrument.

TEXT BOOK ACTIVITY

Please read Criminal Law – The Fundamentals from the discussion of ‘Wounding and grievous bodily harm’ up to (but not including) ‘Unlawful and malicious wounding’. Both alternatives are regarded in practice as more serious than the offence under s. 47, although, surprisingly, the maximum sentence is five years’ imprisonment for both s. 20 and s. 47.

ACTIVITY

In what two ways can this offence be committed? (a) (b)

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5.2.1 ACTUS REUS OF S.20 (a) Inflicting grievous bodily harm How have the courts defined grievous bodily harm in the following cases?

Case

Principle

DPP v Smith [1961] AC 290

Saunders [1985] Crim LR 230

Ireland

The non-statutory Charging Standard recommends a s. 18 or s. 20 charge only for injuries resulting in permanent disability or loss of sensory function, non-minor permanent disability or loss of blood and injuries resulting in lengthy treatment or incapacity. GBH can certainly include sexually transmitted diseases such as HIV, (Dica 2004).

ACTIVITY

In Bollom [2004] 2 Cr App R 6 the victim sustained bruises and abrasions. Is this ABH or GBH? The victim was a 17 month-old baby. Does this make any difference to your answer?

Normally these injuries amount to ABH only however the Court of Appeal held that in deciding whether injuries were grievous, they had to be considered in their real context, which included the effect of the harm on the particular victim, so what would be ABH in an adult could amount to GBH in a child so young.

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What does ‘inflict’ mean? It is important to recognise that this actus reus term has caused some difficulty and you need to be aware of the historical interpretations of the term.

CASE BOOK ACTIVITY

Read the portion of Text and Materials which discusses the actus reus of the section 20 offence and the extract from the case of R v Ireland; R v Burstow that follows and then answer the following questions. How did the Court interpret the term inflict in the case of Clarence (1888) 22 QBD 23?

Did the House of Lords find GBH could be inflicted without an assault or battery in Wilson [1983] 3 All ER 448?

In Ireland did the House hold there to be any difference between ‘cause’ in s. 18 and ‘inflict’ in s. 20? If so, what?

The conclusion we draw is that, in future, where D has caused GBH under the normal principles of causation, he will be held to have also inflicted GBH. Thus, if D infects P with AIDS through unprotected sexual intercourse, then it follows from Burstow that D inflicts GBH, even if the intercourse is consented to by P.

(b) Wounding For a wound to be suffered, both the inner and outer skin, i.e. the dermis and the epidermis, must be broken (JJC v Eisenhower [1983] 3 All ER 230).

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5.2.2 MENS REA OF S.20

ACTIVITY

Whether the actus reus is based on a wound or an infliction of GBH, the prosecution must prove that D acted ‘maliciously’. What has this term been understood to mean? For the answer to this question please see the discussion of the mens rea for a section 20 in Criminal Law – The Fundamentals.

Intention or subjective recklessness is required, but what is the consequence which D must intend or be subjectively reckless about? It was laid down in Mowatt [1967] 3 All ER 47, CA that D need only have intended or foreseen the possibility of some physical harm occurring to the victim, albeit neither serious nor a wound. This was endorsed by the Court of Appeal in Sullivan [1981] Crim LR 46 which made it clear that an intention merely to frighten did not suffice. In the light of the holding in Ireland; Burstow that actual bodily harm includes psychological illness and injury, it seems inevitable that the Mowatt principle will be extended to include intending or foreseeing some recognised psychiatric harm. 5.3 SECTION 18 OF THE OFFENCES AGAINST THE PERSON ACT 1861

…unlawfully and maliciously wound or cause any grievous bodily harm to any person by any means whatsoever with intent to do some grievous bodily harm, or with intent to resist or prevent the lawful apprehension or detainer of any person. 5.3.1 ACTUS REUS – WOUNDING OR CAUSING GRIEVOUS BODILY HARM The terms ‘wound’ and ‘grievous bodily harm’ presumably bear the same meaning as for s. 20. Causing also carries the same meaning as discussed at the actus reus chapter and should be established on the normal principles of causation although as previously intimated, the meaning of cause was traditionally held to be wider than inflict in s. 20. This is underlined by the use in s. 18 of the words ‘by any means whatsoever’. 5.3.2 MENS REA OF S.18 As the most serious of the non-fatal offences intention and intention alone suffices for the mens rea. As can be seen from the words of the section there are two alternative possibilities. The most common in practice is the intent to do grievous bodily harm (GBH). D must be proved to have the aim or purpose of causing GBH (Belfon [1976] 1 WLR 741).

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ACTIVITY

In Mowatt, the Court of Appeal said that the word ‘maliciously’ which is part of the statutory definition of s. 18 was superfluous and added nothing to the mens rea. Is this correct?

When the prosecution’s charge is based on an intention to do GBH it is clear that the word ‘maliciously’ adds nothing to the mens rea because if D intends GBH, he necessarily acts maliciously. Students typically find section 18 problematic. This is partially due to confusion over the form of charge the offence may take and you may find the examples at (a) to (d) below helpful. (a) [maliciously] causing GBH with intent to cause GBH

If the D is charged with this form of the offence the word maliciously is superfluous. If you intend to cause GBH you clearly foresee that GBH may result. (b) [maliciously] wounding with intent to cause GBH

Here maliciously is superfluous for the reasons outlined above. As with the form of the offence above if you intend to cause GBH then clearly you foresee that some physical harm will result. So maliciously here means foreseeing some physical harm (although in terms of the actus reus a wound must be suffered). The alternative mens rea of an ‘intention to resist or prevent the lawful apprehension or detainer of any person’ has been overlooked by the courts. If the prosecution is using this alternative intention as the basis of its charge, then it is clear that ‘maliciously’ would add an extra ingredient, requiring proof that D at least foresaw the risk of some harm being caused by his conduct. A person can intend to resist lawful arrest, e.g. by pushing past a policeman, without realising that his conduct might cause some harm. In such a case he would not be acting maliciously and therefore should not be convicted of the s. 18 offence, even if he causes GBH (cf. Morrison (1988) 89 Cr App R 17, CA). (c) maliciously causing GBH with intent to resist arrest

D must intend to resist arrest but he must also foresee that some physical harm will result; so maliciously here means foreseeing some physical harm. For example, D may intend to resist arrest but may not foresee that when he pushes the police officer the officer will suffer GBH from banging his head on the pavement (again in terms of the actus reus GBH must be suffered). (d) maliciously wounding with intent to resist arrest

D must intend to resist arrest but he must also foresee that some physical harm will result. For example, D may intend to resist arrest but may not foresee that when he pushes the police officer the officer will suffer a gash to his head from the pavement. (again in terms of the actus reus wounding must be suffered)
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6.

REFORM

TEXT BOOK ACTIVITY

Please read and make notes on the discussion of the proposed reform in this area of the law from Criminal Law - The Fundamentals and from the section entitled ‘evaluation’ in Text and Materials.

7.

UNLAWFUL FORCE

To constitute the actus reus of the offences discussed above the force applied to the victim must be unlawful force. We can identify four main situations where the use of physical force could be lawful: self-defence and prevention of crime; parental chastisement; necessity; and consent. Consent will be the element that we will concentrate upon in this chapter. • Self-defence and prevention of crime

Anyone is entitled to use reasonable force in self-defence or in the prevention of crime (s. 3 of the Criminal Law Act 1967). This topic is considered in more detail under general defences. • Parental chastisement

Parents are entitled to take reasonable disciplinary measures against their children, including the use of moderate physical punishment. Clearly this does not allow the use of force which is excessive or unreasonable in nature, degree or duration (Hopley (1860) 2 F & F 202; Smith [1985] Crim LR 42.) • Necessity

Emergency situations can justify a deliberate application of force even if that would otherwise amount to a battery. This is considered more fully under general defences, but examples could include medical treatment of an unconscious patient; pushing P, frozen with fright, down the emergency chute of a blazing aeroplane (after landing!). • Consent

It is consent we will go on to address below in detail. 7.1 CONSENT

Acts are criminal only if done without the valid consent of the person affected; that is, the person who would otherwise be the ‘victim’ if he had not consented. Although consent is often referred to as a ‘defence’, it is not for the defendant to prove. Instead, it is an assertion by the defendant that the prosecution cannot satisfy its burden of proof with respect to the crime as charged. In the definition of each of the non-fatal offences, the force applied to V must be unlawful force. Any force applied by the defendant to another with the other’s consent, cannot
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be unlawful force. This means that valid consent negates the actus reus of the crime; there is no actus reus. This view prevailed in Kimber [1983] 1 WLR 1118, CA, approved by the House of Lords in B v DPP [2000] 1 All ER 833. Not all consent given by the victim will be valid, in which case the defendant will remain liable. 7.1.1 THE REALITY OF CONSENT

TEXT BOOK ACTIVITY

Please read the first portion of the consent discussion in Criminal Law - The Fundamentals from ‘Consent’ up to (but not including) ‘Consent to actual bodily harm’.

Not all frauds, lies or failures to tell the whole truth will negate consent. It all depends on the precise issue or matter to which the fraud relates. Contentious matters which have led to appeals in this area of law include fraud or deceit as to the identity of the accused and as to the nature or quality of the act. The relevant sections in your textbook summarise these areas of the law, however in order to fully comprehend the legal principles please complete the following tables. (a) Consent and Identity

Case

Brief Facts

Legal Principle

Richardson [1998] 3 WLR 1292, CA

Tabassum [2000] 2 Cr App R 328

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(b) Consent and the nature and quality of the act

Case

Brief Facts

Legal Principle

Clarence (1888) 22 QB 23

Tabassum [2000] 2 Cr App R 328

Dica [2004] 3 WLR 213

Konzani [2005] EWCA Crim 706.

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7.2

Consent to Actual Bodily Harm

CASE BOOK ACTIVITY

Carefully read the case of Brown [1994] 1 AC 212 at chapter three of Text and Materials. Would you have decided the case the same way? To what extent, according to the House, can a person consent to harm? (please ensure you make a note of this legal principle – it is integral)

How is our ability to consent limited by the law?

Do you agree with where the limits are set?

For a full discussion of these principles please read Criminal Law – The Fundamentals ‘Consent to actual bodily harm’.

A later appeal to the European Court of Human Rights was also unsuccessful (Laskey v United Kingdom (1997) 24 EHRR 39) as it was held that State interference in this aspect of private life could be justified on the basis of ‘protection of health’.

CASE BOOK ACTIVITY

For commentary upon the moral aspect of the Brown case please return to Chapter One of Criminal Law – Text and Materials and the articles written by Herbert Packer, Patrick Devlin and William Wilson at the section dealing with ‘What conduct ought to be Criminal?’

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7.2.1 Retreat from Brown

ACTIVITY

Please read Criminal Law – The Fundamentals ‘Retreat from Brown’ and answer the following questions How was Brown distinguished in Slingsby [1995] Crim LR 570?

How was Brown distinguished in Wilson [1996] 2 Cr App R 241?

Are you satisfied that the reasons given in Wilson are sustainable?

How does Dica further limit the decision in Brown?

It is important that you understand that the case of Dica was concerned with ‘normal’ sexual activity and the effect of consent when the HIV virus was passed to a sexual partner. HIV is clearly serious harm and if the principle in Brown was to be applied consent would not negate liability – even if the participants were both fully informed and consenting to sex (and consequently the risk of infection). However, Dica ‘says’ change to held consent can be a defence, in certain circumstances, even where actual bodily harm or worse is caused. Judge LJ stated: “In our judgment the impact of the authorities dealing with sexual gratification can too readily be misunderstood. It does not follow from them, and they do not suggest, that consensual acts of sexual intercourse are unlawful merely because there may be a known risk to the health of one or other participant. These participants are not intent on spreading or becoming infected with disease through sexual intercourse. They are not indulging in serious violence for the purposes of sexual gratification. They are simply prepared, knowingly, to run the risk - not the certainty - of infection, as well as all the other risks inherent in and possible consequences of sexual intercourse, such as, and despite the most careful precautions, an unintended pregnancy…” Consent in such cases must be informed consent (see Konzani [2005] EWCA Crim 706). If you cannot understand how the sexual activity in Dica was distinguished from that in Brown you may find it useful to read the case of Dica, in which their Lordships provide a summary of the consent case law.

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ACTIVITY

Why was the defence of consent unavailable in the case of Emmett (1999) The Times, 15 October 1999?

7.4

Consent in the public interest

ACTIVITY

What rules were established by The Court of Appeal in Barnes [2004] All ER (D) 338 (Dec)? For which other ‘activities’ may a person give valid consent? For answers to these question see Criminal law – The Fundamentals ‘Situations in which consent to harm is in the public interest’.

ACTIVITY

To review your knowledge of the legal principles governing consent, in each of the following situations say whether you think P’s consent should be invalid for the purposes of preventing a battery. (a) P consents to undergo a medical examination by D, who has falsely claimed to be a doctor P consents to undergo a medical examination by D, a doctor, who falsely pretends that this examination is medically necessary P consents to undergo a necessary medical examination by D, a doctor, in the presence of X, whom D falsely represents as a medical trainee but who is present for sexual gratification P consents to sexual intercourse with D, who deliberately fails to tell P that he (D) is HIV positive and has AIDS Page 73

(b)

(c)

(d)

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As previously stated, the rule is that if the apparent consent has been procured by fraud as to the identity of the accused or as to the nature of the act, it will be invalid. The question is: has P consented to (a) the act which was done (as opposed to an act fundamentally different) and (b) that act being done by the person who did it and not somebody else (cf. para. 5.20 Law Commission Report: Consent in Sex Offences). It follows that in situations (a), (b) and (d) above, the ‘consent’ would be invalid whereas in (c) it would be valid. If in (c) X took part in the examination it would be the same as (a). You may find the table at the end of this chapter useful for revision purposes. Study Checklist Please check you can now • • • Define and analyse the common law offences; Define and analyse the offences created by ss. 18, 20 and 47 of the OAPA 1861; Explain the concept of ‘unlawful’ force and analyse the leading authorities regarding consent

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Offence

Actus Reus

Mens Rea

Comments and cases

s. 18 OAPA

Unlawfully Wound Or Cause GBH

Intent to cause GBH or maliciously + with intent to resist lawful apprehension etc … Maliciously meaning…

s. 20 OAPA

Unlawfully Wound Or Inflict GBH

s. 47 OAPA

Assault (either physical or technical or both) Occasioning ABH

Mens rea as for the physical and/or technical assault

Common/ Physical Assault Battery

Application of unlawful force to victim

Intention or recklessness to apply unlawful force to the victim

Common/ Technical/ Psychic Assault

Causing the victim to apprehend immediate unlawful force (harm? violence?)

Intention or recklessness to cause the victim to apprehend immediate force (etc)

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Topics to be studied: • • • Murder Voluntary manslaughter Involuntary manslaughter

1.

OBJECTIVES

By the end of this chapter you should be able to: • • • • • • • 2. Define the basic ingredients of homicide and distinguish between murder, voluntary manslaughter and involuntary manslaughter; Explain the difficulties and uncertainties surrounding the mens rea of murder; Analyse the requirements for the defences of provocation and diminished responsibility; Describe the rules governing gross negligence manslaughter; Identify the offence of subjective reckless manslaughter; Identify the anomalies and shortcomings of unlawful act manslaughter; Comment on the proposals for the reform of the homicide laws. ESSENTIAL READING 1. This study guide 2. McAlhone and Huxley-Binns, Criminal Law – The Fundamentals, 2007, Sweet and Maxwell, Chapter Four 3. Clarkson and Keating, Criminal Law – Text and Materials, 6th Edition, 2007, Sweet and Maxwell, Chapter Eight. 3. INTRODUCTION

Although there are a number of homicide offences this guidance text concentrates upon murder and manslaughter. Both crimes share the same actus reus; the unlawful killing of a human being by a human being under the Queen’s peace.

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4.

ACTUS REUS OF MURDER

TEXT BOOK ACTIVITY

Please read Criminal Law – The Fundamentals from the introduction to homicide up to (but not including) ‘Murder’ and complete the following table.

Actus reus element

Explanation

Unlawful killing

Human Being

Causing Death

Under the Queens Peace

5.

MURDER

Having considered the actus reus of murder, we can turn immediately to the factor which distinguishes murder from manslaughter – the mens rea. 5.1 Mens rea ‘malice aforethought’

The traditional term used for the mens rea of murder is ‘malice aforethought’. However, there need be neither ‘malice’ nor ‘aforethought’. Equally there is no need to prove that the intentional killing was done with any ‘aforethought’. A spur of the moment decision to kill suffices. What then is ‘the necessary mental element’ for murder? The answer is surprisingly simple. In Moloney [1985] 1 All ER 1025 it was held it means either: (a) (b) an intention to kill; or an intention to cause grievous bodily harm (implied malice) Page 78

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5.1.2 IMPLIED MALICE

ACTIVITY

Do you recall the meaning of the term ‘grievous bodily harm’? If death unexpectedly results from an intentional causing of grievous bodily harm, do you agree it should it be murder?

Most commentators regard intention to cause grievous bodily harm as unacceptably wide for the mens rea of murder. We saw in the previous chapter that grievous bodily harm means no more than ‘really serious’ harm according to DPP v Smith [1960] 3 All ER 161, HL. Thus it does not necessitate intending to cause a life-threatening injury. If D aims to break someone’s leg, he intends to cause grievous bodily harm. It seems wrong that he should be convicted of murder if the victim dies due to unforeseen medical complications. But that is the law. 5.1.3 INTENTION Since the House of Lords’ decision in Woollin, we can state the mens rea of murder with reasonable if not complete confidence. See chapter three for the full discussion. # 6. MANSLAUGHTER

CASE BOOK ACTIVITY

Please read Criminal Law – Text and Materials ‘IV. Manslaughter’ up to (but not including) ‘(subjective) reckless manslaughter’ for a concise introduction to the forms of manslaughter.

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MANSLAUGHTER ACTIVITY Voluntary (D has the mens rea for murder) Involuntary (D does not have the mens rea for murder)

Provocation (D provoked to lose his self-control)

Diminished Responsibility (Mental Disorder)

Suicide Pacts

Gross Negligence Manslaughter

Subjective Recklessness Manslaughter

Unlawful Act also termed Constructive Manslaughter

6.1

VOLUNTARY MANSLAUGHTER

As our diagram indicates, there are three distinct sets of circumstances which can mitigate what would otherwise be murder to voluntary manslaughter. One of the main reasons for doing this is to allow the judge discretion in sentencing to reflect the reduced culpability of the accused, despite the fact that he intended to kill P or cause him serious harm. 6.1.1 DIMINISHED RESPONSIBILITY This defence was first created by the Homicide Act 1957 and is quite a straightforward defence (comparatively!). Section 2 of the Homicide Act 1957 sets out; “Where a person kills or is a 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 and omissions in doing or being a party to the killing.”

ACTIVITY

Identify the three ingredients required for a successful defence. a) b) c)

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ACTIVITY

Please read the introduction to diminished responsibility in Criminal Law – The Fundamentals up to (but not including) ‘abnormality of the mind’. When diminished responsibility is raised is the burden of proof upon the prosecution to disprove the defence or is the burden upon the defendant? Does this contravene the European Convention on Human Rights?

(a) Abnormality of mind

ACTIVITY

Read the commentary upon diminished responsibility in Text and Materials from ‘Section 2’ to the ‘Report of the Committee on Mentally Abnormal Offenders’. In the case of Byrne [1960] 3 All ER 1 how did Lord Parker CJ ‘define’ an abnormality of the mind? – please make a note of this important ‘definition’ below.

This concept of ‘abnormality of mind’ is vague and elastic and courts and juries have taken full advantage of the ability to stretch it to cover situations where D engages the sympathy of the court. For example, • • • • • Perverted sexual desires that created irresistible impulses - R v Byrne (1960) Pre-Menstrual Syndrome - Reynolds [1988] Crim LR 679 Depression - Seers (1984) 79 Cr App R 261, CA Paranoid psychosis - Sanderson (1994) 98 Cr App R 325, CA Extreme jealousy - R v Vinagre (1979)

(b) Specified causes Section 2 sets out that the abnormality must result from one of the specified causes and suitable medical evidence is needed to establish that the abnormality results from one of these specified causes (Byrne). It seems less difficult to show what does not come within ‘specified causes’. Hate, jealousy, or bad temper causing an abnormality would not, according to Fenton (1975) 61 Cr App R 261, CA (though even this is contradicted by some first instance decisions – Miller, The Times, 16 May 1972 and Asher, The Times, 9 June 1981, cf. Vinagre (1979) 69 Cr App R 104, CA (jealousy); and Coles (1980) 144 JPN 528 (rage))

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Alcohol and abnormality Where alcohol is one of the causes of the abnormality, the jury must ignore the effects of that and consider whether the other cause brought about an abnormality which substantially impaired the mental responsibility (Gittens [1984] 3 All ER 252 approved by the House of Lords in Dietschmann [2003] UKHL 10). It appears from Dietschmann that the above rules do not apply where D suffers from alcohol dependence syndrome (chronic alcoholism) because that is recognised as a disease. If it causes permanent injury to the brain, that would certainly be an abnormality of mind (Tandy (1988) 87 Cr App R 45). Alternatively, if the alcoholic’s craving for a first drink is irresistible, he may have a defence, because he would not be ‘responsible’ for his intoxication which would therefore be ‘involuntary’ (Tandy; Inseal [1992] Crim LR 35, CA). (c) Substantial impairment of responsibility The abnormality must have substantially impaired the defendant’s mental responsibility for his acts. This phrase is just as vague and elastic as ‘abnormality of the mind’ allowing the jury a large measure of discretion. 6.2 PROVOCATION

Our second defence is that of provocation

ACTIVITY

What have the courts determined the jury should take into account when determining whether there has been a substantial impairment? For the answer to this question please read the ‘substantial impairment of responsibility’ section in Criminal law - The Fundamentals paying particular attention to the following cases: Byrne Lloyd [1967] 1 All ER 107 Mitchell [1995] Crim LR 506

The defence applies only to a charge of murder and is only a partial defence, reducing the crime from murder to manslaughter. Remember provocation is raised as a defence when D has committed the actus reus of murder with the requite mens rea.

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ACTIVITY

A number of key ingredients will be addressed in the following section and it is worth giving some thought to these issues at this point and returning to them at the end of the discussion to ensure you have identified the relevant legal principles. Issues to consider: How much provocation would be needed for the defence to be successful? On what basis would you judge the defendant? Subjectively or objectively? How would you assess the level of his reaction? If objectively which (if any) of the defendants characteristics should be taken into account? Does his reaction have to be proportionate? Would you permit the defence to be successful because of provoking words, or would you permit it only because of provocative acts? Is there a difference? What if the defendant was unusually prone to anger, jealousy or rage?

The essence of provocation is that D kills someone in the heat of the moment, having momentarily lost his self-control. However, to prevent the defence unduly favouring those who are prone to lose their self-control at the slightest provocation, D’s loss of self-control is judged against the yardstick of how an ordinary, average person might have reacted in the same situation. The law regards it as fair to excuse D’s lack of self-restraint and lethal reaction only if the average person might have done as D did in the same circumstances. Provocation is a common law defence and, as such, the definition has to be gleaned from an examination of the case law. Nonetheless, very significant changes to the common law formulation were wrought by s. 3 of the Homicide Act 1957. Although not a comprehensive definition, s. 3 is undoubtedly the starting point for any study of the defence: “Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self-control, the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury, and in determining that question the jury shall take into account everything both done and said according to the effect which in their opinion, it would have on a reasonable man.”

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ACTIVITY

From this statutory definition can you identify the three basic elements which make up provocation? a. b. c. If you have not managed to identify the elements please read ‘the nature of the defence’ in Criminal Law - The Fundamentals.

(a) Provocative Conduct According to s. 3 the provocative conduct may be ‘things done or things said or both together’. This was enacted to overrule the case of Holmes v DPP [1946] 2 All ER 124, HL which appeared to hold that words of abuse were incapable of constituting provocative conduct for the purposes of the defence.

CASE BOOK ACTIVITY

Please read the extract from the case of Doughty (1986) 83 Cr App R 319, CA in Text and Materials. Did the ‘action’ of the victim amount to provocation in this case?

Provocation and third parties At common law, one could only take into account ‘acts done by the dead man to the accused’ (see Duffy [1949] 1 All ER 932).

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ACTIVITY

This imposed two limitations. Can you identify them?

The first was that any provocative conduct from anyone other than the deceased victim had to be ignored. Davies [1975] 1 All ER 890, CA confirms that this rule is implicitly abolished by s. 3. Secondly, Pearson [1992] Crim LR 193 holds that the rule that provocative conduct by the deceased victim which was directed at someone other than the accused had to be ignored has also been impliedly overturned by s. 3. (b)The subjective limb: actual loss of self-control by d

TEXT BOOK ACTIVITY

Please read ‘The subjective test - the defendant must lose his self-control’ in Criminal Law – The Fundamentals. What is an actual loss of self-control? Please pay particular attention to the definition given in Duffy [1949] 1 All ER 932.

This is an entirely subjective test: did the accused actually lose his self-control? If D did not lose his self-control, the defence fails, even if a reasonable person would have (cf. Cocker [1989] Crim LR 740). Whether D did lose his self-control is a question of fact for the jury, which must take into account all the circumstances. The issue of provocation will only be left to be decided by the jury, if the judge is satisfied that there is, in the words of s. 3, ‘evidence on which the jury can find that the person charged was provoked . . . to lose his self-control . . .’. If, therefore, he is satisfied that on the evidence given, no reasonable jury could possibly conclude that the accused lost his self-control, he must withdraw the issue from the jury and the defence fails.

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ACTIVITY

Does this mean that no account can be taken of past incidents of provocation as, for example, in the case of battered wives, because ‘reason has had time to resume its seat’ after those incidents? For this answer to this question please see the case of Humphreys [1995] 4 All ER 1008, CA.

CASE BOOK ACTIVITY

Read the short extract from the case of Ahluwalia [1992] 4 All ER 889 CA in Text and Materials. You will see below that her appeal on the ‘cooling off’ period was dismissed. Explain why the appeal was unsuccessful on this ground.

Here, the court managed to find the ‘compassionate’ way out which it had failed to find in Thornton by holding that there was evidence that D might have been suffering from diminished responsibility (due to endogenous depression – not battered wife syndrome), a defence which, through no fault of hers, was not raised at the trial. A retrial was therefore ordered and that resulted in a finding of manslaughter on the ground of diminished responsibility. (c) The objective limb Section 3 makes it clear that the provocative conduct had to be such as might cause a reasonable person to lose their self-control and do as the accused did. How a reasonable person might have reacted provides the standard against which D’s actions are judged. As Lord Goff put it: ‘The function of the test is only to introduce, as a matter of policy, a standard of self-control which has to be complied with if provocation is to be established in law.’ (Morhall [1995] 3 All ER 659, HL). The nature of the reasonable person The primary difficulty for the courts in this area has been the question of what characteristics may be afforded to the reasonable person when deciding whether he would have acted as the D did.

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Prior to s. 3, the courts insisted that the reasonable person was ‘normal’ or ‘average’ in every way and did not possess any special characteristics which D had, even if the provocation was directed at these ‘special’ characteristics. Thus, in Bedder v DPP [1954] 2 All ER 801, HL, the reasonable man could not be invested with D’s sexual impotence, even though the prostitute he killed had taunted him about his inability to perform sex with her.

TEXT BOOK ACTIVITY

Please read Criminal Law – The Fundamentals from ‘The objective test’ up to (but not including) ‘Proportionality’.

You will have gleaned from your reading that this has been a contentious area of the law and it is now worth taking the time to carefully go through the case law to appraise the conflicts that have emerged and establish the current legal principle.

ACTIVITY

Read the extract from the case of DPP v Camplin [1978] 2 All ER 168 in Text and Materials. Is Bedder still good law? What characteristics does the reasonable person possess?

The House of Lords in Camplin held that s. 3 impliedly overruled the principle laid down in Bedder so that if similar circumstances arose again, the reasonable man would be invested with D’s impotence. According to Camplin, the reasonable person was someone ‘having the power of self-control to be expected of an ordinary person of the sex and age of the accused but in other respects sharing such of the accused’s characteristics as . . . would affect the gravity of the provocation on him . . .’.

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ACTIVITY

Does this mean that the reasonable person should be given all of D’s characteristics? Why would this be impossible without undermining the whole basis of the present defence? What bottom line characteristic(s) should the reasonable person possess in every case?

To maintain this objective yardstick, there was always one objective characteristic which the reasonable man should possess in every case: he should always possess the average degree of self-control so that he can never be invested with the accused’s ‘exceptional excitability… or pugnacity or ill-temper’ (per Lord Simon in Camplin). Equally, the reasonable man would never become temporarily excitable through the effect of alcohol. Morhall confirmed that the reasonable person is always sober, even if D’s self-control is impaired by alcohol or drugs.

CASE BOOK ACTIVITY

Read the extract from Morhall [1995] 3 All ER 659, HL in Text and Materials, paying particular attention to the paragraph starting “At all events it follows that, in a case such as the present, a distinction may have to be drawn between two different situations”. What are the two situations to which Lord Goff is referring?

The issue identified by Lord Goff is that there is a difference between characteristics which affect the gravity of the provocation and characteristics which affect D’s general level of self control. Characteristics affecting the gravity of the provocation What we are looking at here is any characteristic of the defendant’s which is the butt of the taunt, or which makes the provocative conduct even more provocative in its affect on D. See for example Morhall where D’s addiction to glue-sniffing was relevant because the victim nagged and taunted him about that very trait and his inability to kick his habit.

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Characteristics affecting D’s general level of self-control This is the aspect that has caused conflict between the Privy Council and the House of Lords. The central issue has been whether a characteristic be taken into account if it merely made D more prone to be provoked in general, for example, where D is suffering from some kind of brain injury that affords him a lower level of self control than the average person.

CASE BOOK ACTIVITY

Read the extracts of the cases of Luc Thiet Thuan v R [1996] 2 All ER 1033 and Smith (Morgan) [2000] 4 All ER 289 in Text and Materials. What characteristics did the Privy Council suggest could be attributed to the reasonable man? What characteristics did the House of Lords suggest could be attributed to the reasonable man? The cases clearly conflict. In your opinion, which is right? Why?

Although Smith was astonishingly wide, deciding that aspects of the D relevant to the loss of the self control could be considered, every characteristic was not to be left to the jury to make what they will of it. The trial judge had to direct the jury to ignore emotional traits ‘such as jealousy and obsession’ or a ‘tendency to violent rages or childish tantrums.’ These were regarded as ‘defects in character rather than an excuse . . . In deciding what should count as a sufficient excuse, they [the jury] have to apply what they consider to be appropriate standards of behaviour; on the one hand making allowances for human nature and the power of the emotions but, on the other hand, not allowing someone to rely upon his own violent disposition.’ No criteria were suggested for identifying which characteristics cannot be taken into account by the jury.

CASE BOOK ACTIVITY

Does this mean that if D had a volatile and explosive personality, this would be given to the reasonable person? Was anything left of the objective test by the Morgan Smith decision? For the answer to this see Weller [2003] EWCA Crim 815 CA in the discussion of the objective test in Criminal Law - The Fundamentals.

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The law according to Luc has prevailed. Read Attorney General for Jersey v Holley [2005] UKPC 23, [2005] 3 WLR 29 in Text and Materials and the commentary that follows the case. What is the decision of the Privy Council in this case? What is the status of the House of Lords’ judgment in Smith (Morgan) now?

When Holley was first reported, academic debate centered around the authority of the decision. The Privy Council was, on the whole, praised for its decisive stance against Smith (Morgan) and in favour of the preferred Luc, but as the Privy Council’s decisions are not binding, the strength of the decision in the court hierarchy was in doubt. On the other hand, nine members of the House of Lords presided in Holley; the decision could not have more authority of terms of judicial seniority. The status of the decision in Holley was queried in R v Mohammed (Faqir) [2005] EWCA Crim 1880 where Scott Baker LJ at the Court of Appeal said: “Although Holley is a decision of the Privy Council, and Morgan Smith a decision of the House of Lords, neither side [in the case] has suggested that the law of England and Wales is other than set out in the majority opinion given by Lord Nicholls in Holley and we have no difficulty in proceeding on that basis.” A five-strong Court of Appeal went further in James[2006] EWCA Crim 14 holding that, because in Holley all nine members of the Privy Council were Lords of Appeal in Ordinary, six of whom agreed (and those six constituted half of the Law Lords at the time) and all nine agreed that the decision had definitively clarified the law (notwithstanding the dissents on what the law should be), the inferior courts were bound to prefer that Privy Council decision over an earlier conflicting decision of the House of Lords. In effect, Holley has overruled Smith (Morgan). 6.1.2 OTHER FACTORS

TEXT BOOK ACTIVITY

If you have not done so already please read the discussion of the objective test in Criminal Law - The Fundamentals.

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History and circumstances To appreciate the gravity of provocative conduct, you must view it in its context. A relatively innocuous remark or action may take on an entirely different colour according to whether it is viewed in isolation or in context. Thus ‘last straw’ provocations can revive past provocations. An example is provided by Horrex [1999] Crim LR 500, CA where the provocation (violence and threats by the victim against G) had to be viewed in the light of D’s very close relationship to G whom he regarded as a mother figure. That was central to judging the seriousness of the provocation on him and whether his loss of self-control ought in fairness to be excused. Must the retaliation be reasonably proportionate to the provocation?

ACTIVITY

Can anyone, even a reasonable person, who has lost their self-control, keep their retaliation proportionate to the gravity of the provocation?

It is now clear that s. 3, in leaving the reasonable man issue entirely to the jury, has relegated this invariable legal rule into becoming simply one factor which the jury must take into account in deciding if the reasonable man would have done as D did (see Brown [1972] 2 All ER 1328, CA and DPP v Camplin). This is hardly a surprising development given that s. 3 expressly states that provocation can be by words alone. If the provocation is simply words of abuse, then any killing in response to those words is seriously disproportionate to the provocation. Nonetheless, a seriously disproportionate retaliation will clearly make it more difficult for the jury to say that a reasonable man would have done as D did. Self-induced provocation The Court of Appeal in the subsequent case of Johnson [1989] 2 All ER 839 held that the fact that the provocation was self-induced could not prevent the issue being left with the jury and was simply one factor for the jury to consider in deciding whether a reasonable man would have done as D did.

ACTIVITY

Now please return to the activity at the beginning of the provocation discussion to ensure you can answer the questions set out by reference to the relevant legal principles.

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6.1.3 SUICIDE PACTS Please read the relevant section in your textbook. Suicide pacts are not examinable. 7. INVOLUNTARY MANSLAUGHTER

Involuntary manslaughter is confined to unlawful homicides which are committed without malice aforethought. In Andrews v DPP [1937] AC 576 the dilemma was described by Lord Atkin (at p. 581): . . . of all crimes manslaughter appears to afford most difficulties of definition, for it concerns homicide in so many and so varying conditions . . . the law . . . recognises murder on the one hand based mainly, though not exclusively, on an intention to kill, and manslaughter on the other hand, based mainly, though not exclusively, on the absence of intent to kill, but with the presence of an element of unlawfulness which is the elusive factor. There are probably three circumstances where the element of unlawfulness is present: (a) killing by gross negligence; (b) unlawful act manslaughter (constructive manslaughter) (c) killing with subjective recklessness 7.1 KILLING BY GROSS NEGLIGENCE

For this form of manslaughter the law seems to require gross negligence on the part of D as to death or (possibly) grievous bodily harm for a conviction, i.e. D had failed to guard against a very obvious risk of death or GBH. In Bateman (1925) 19 Cr App R 8 Lord Hewart made the famous statement that criminal ‘negligence of the accused went beyond a mere matter of compensation between subjects, and showed such a disregard for the life and safety of others as to amount to a crime against the state, and conduct deserving punishment’. 7.1.1 The Present Law

ACTIVITY

Read the extract from Adomako in Text and Materials and identify the requirements laid down for gross negligence manslaughter. a)

b)

c)

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To put these principles into context please read Criminal Law – The Fundamentals ‘the current law’ and complete the following chart.

Case

Brief Facts

Decision

Adomako

Prentice and Sullman [1993] 4 All ER 935

Holloway

(a) Duty of care

ACTIVITY

How does the court decide whether a duty of care is owed by D to P? You should have gleaned this from your reading of Adomako.

The law of torts determines if a duty is owed to the victim. A test based on tortious duty in relation to positive acts, in practice, adds nothing to the basic requirement of gross negligence because, in tort (but not in criminal law), the duty to take care to avoid injury by a positive act to anyone in the vicinity is so wide-ranging.

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TEXT BOOK ACTIVITY

In Wacker [2003] Crim LR 108 how did the D try to defend a charge of gross negligent manslaughter? Who decides whether a duty of care is owed to the victim, the judge or the jury? For the answers to these questions please see Criminal Law – The Fundamentals ‘D owed V a duty of care’ continuing on to read ‘The breach involves a risk of death’

(b) Breach causes death The causation requirement is straightforward and dealt with in accordance with principles explained at chapter two. (c) Grossly negligent breach The central issue is (unsurprisingly) whether D’s conduct is bad enough to be designated grossly negligent. This is an objective test since D’s conduct is to be judged against an external standard. An integral question that has not been adequately answered by the courts is the meaning of gross negligence. Turning to Adomako for their Lordships’ view of the meaning of ‘gross negligence’, we find remarkably little of substance. Whether D is grossly negligent: will depend on the seriousness of the breach . . . 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 . . . was such that it should be judged criminal . . . This is necessarily a question of degree and an attempt to specify that degree more closely is . . . likely to achieve only a spurious precision. The essence of the matter, which is supremely a jury question, is whether, having regard to the risk of death involved, the conduct of the defendant was so bad in all the circumstances as to amount in their judgment to a criminal act or omission. In R v Misra [2004] EWCA Crim 2375, two doctors were convicted of manslaughter by gross negligence after their patient died from toxic shock syndrome, which could have been treated with a dose of antibiotics. The Court of Appeal confirmed that the risk to which the victim must be exposed is a risk of death and nothing less.

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TEXT BOOK ACTIVITY

Can D’s state of mind be taken into account when this objective assessment is being made? For the answer to this question please read the remainder of the discussion of gross negligence manslaughter in Criminal Law – The Fundamentals.

Conclusion Ultimately, the test for gross negligence is an elastic standard which is not capable of exact definition because of the vast range of fact situations with which it has to deal. However, this does not justify the almost complete absence of guidance on the meaning of gross negligence in Adomako and you should spend some time considering the challenges made to the doctrine set out in your textbook. 7.2 UNLAWFUL ACT MANSLAUGHTER

TEXT BOOK ACTIVITY

Read the extract from the case of DPP v Newbury [1976] 2 All ER 365, HL in Text and Materials. State the elements of the offence of manslaughter when committed by an unlawful act. a) b) c) d) If you cannot answer this question please refer to Criminal Law – The Fundamentals ‘Constructive manslaughter’

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(a) Intentionally doing an act It is most important to realise that ‘intentionally’ refers to the doing of the act, not to the harmful consequences which flow from the act. As such, it really adds nothing to the notion of doing an act since the very notion of acting implies that the movements are deliberate.

ACTIVITY

What was the intentional act performed by the D’s in Newbury? By stating that an act must be performed which manner of committing the actus reus is excluded from unlawful act manslaughter?

Intentional omissions are excluded from the definition (see Lowe). This has been a contentious point - can you see any moral distinction between these types of conduct – is it any worse to kill a child by striking it (a positive act) than by starving it (an omission)? (b) The act is unlawful The intention act which forms the basis for this form of manslaughter must be, in and of itself, unlawful. It is irrelevant whether or not D realised that his intentional act was unlawful. Ignorance of the law is no excuse.

TEXT BOOK ACTIVITY

Case law has established two restrictions to unlawful act manslaughter by way of the unlawful element? What are these restrictions? For the answer to this question see Criminal Law - The Fundamentals ‘The act is unlawful’ paying particular attention to the cases of Franklin (1883) 15 Cox CC 163 and Andrews v DPP [1937] 2 All ER 552, HL.

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Examples of unlawful acts The unlawful act is commonly an assault or a battery; however liability may be founded upon any criminal offence, for example. • • • • Criminal damage - DPP v Newbury (although the court failed to articulate this) Administering a noxious thing - Cato [1976] 1 All ER 260. Arson - Goodfellow (1986) 83 Cr App R 23, CA. Unlawful injection of the prescription drug - Andrews [2003] Crim LR 477.

In order to be an unlawful act, both the actus reus and any necessary mens rea must be present otherwise the act would not be unlawful. This is well illustrated by the case of Lamb [1967] 2 All ER 1282, CA , the facts of which you should be familiar with from your earlier reading. Here, although D performed the actus reus of battery when the bullet struck the victim, it was not the offence of battery because he did not intend to apply force to the victim nor did he realise, because of his stupid mistake, that he might apply force to the victim.

ACTIVITY

Why was there no physical assault? Could D be convicted of manslaughter under the other head?

In R. v D [2006] 2 Cr. App. R. 24, the defendant was acquitted of constructive manslaughter on the basis that the prosecution could not prove that D had satisfied both the actus reus and mens rea of the base crime. It was the prosecution case that D had caused his wife to commit suicide through years of domestic abuse. However, the prosecution was unable to prove that he had inflicted a recognised psychiatric illness. The Court of Appeal agreed that the Crown was under an obligation to show that D had maliciously inflicted a recognised (and serious) psychiatric illness or injury, which led to the victim's death. In principle, the Court accepted that it is possible to be convicted of manslaughter by causing another to take their own life, dependent on proof of the actus reus and mens rea of an unlawful act. (c) The act is dangerous Only acts which are dangerous in the sense of being likely to cause harm to another person count as unlawful acts for this purpose.

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CASE BOOK ACTIVITY

Read the extract from Church [1965] 2 All ER 72, CA Text and Materials and state whether dangerousness is tested subjectively or objectively.

It is integral to understand that this is an objective test. If you did not identify this, it worth going back to Chapter 3 and reviewing the difference between subjective and objective in the context of recklessness. By this stage of your course, you should be finding the difference easy to identify. When we are dealing with the reasonable person one question that arises is the knowledge given to that reasonable person.

TEXT BOOK ACTIVITY

Text Book Activity Please read Criminal Law – The Fundamentals ‘The act is dangerous’ (you may find it useful to supplement your knowledge with the commentary following Newbury in Text and Materials) and complete the following grid with the legal principles established in these three key cases.

Case Dawson (1985) 81 Cr App R 150

Brief Facts

Decision

Watson [1989] 2 All ER 865, CA

Ball [1989] Crim LR 730, CA

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(d) The act causes death Whether the unlawful act caused the death is determined in accordance with normal principles of causation as previously discussed. There is no requirement in recent case law that the death should be due to the element of unlawfulness in D’s act as opposed to the act itself.

ACTIVITY

Suppose D knocks down and kills a pedestrian by careless driving. Would this be unlawful act manslaughter? Suppose D is at the time, as he well knows, uninsured or disqualified from driving under the points system. Would this be unlawful act manslaughter?

In the first case, although the act is objectively ‘dangerous’, causes death and is criminal (driving without due care and attention), it would not be ‘unlawful’ for the purposes of the doctrine. It would fall within the ‘negligence’ exception in Andrews v DPP. Unless the carelessness was so extreme as to amount to gross negligence under the other head of involuntary manslaughter, it would not be manslaughter on that account. In the second situation, D intentionally commits the offence of driving whilst uninsured (or disqualified). The act is dangerous and, if the element of dangerousness does not have to be causally linked with the unlawfulness, D would satisfy the requirements and be convicted, even if his driving was exemplary! This possibility helps to illustrate the potential for absurdity in the current rules and suggests that some limitation along these lines ought to be articulated. OTHER ISSUES Killing by supplying drugs It is all too common for a drug user, or addict, to die from taking illegal drugs. The question that the court has had real difficulty in dealing with is whether the person who supplied the drugs (i) committed an unlawful act in the act of supply and (ii) whether the supply caused the death of the victim.

TEXT BOOK ACTIVITY

Please read the discussion of manslaughter by supplying drugs in Criminal Law – The Fundamentals – paying particular attention to the completed drug case grid.

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The leading case is now Kennedy [2007] UKHL 38 where D prepared the syringe for V and V self-injected. The following question was certified for the House of Lords; ‘When is it appropriate to find someone guilty of manslaughter where that person has been involved in the supply of a class A controlled drug, which is then freely and voluntarily selfadministered by the person to whom it was supplied, and the administration of the drug then causes his death?’ Their Lordships answered ‘In the case of a fully-informed and responsible adult, never’. This decision hopefully clarifies an area of the law that has previously been riddled with inconsistency. Must the act be directed at another? Although Dalby [1982] 1 All ER 916 invented an extra requirement that the unlawful act must be ‘directed at another’ DPP v Newbury never mentioned this. It was not therefore a surprise when the Court of Appeal in Goodfellow (1986) 83 Cr App R 23 and Attorney-General’s Reference (No. 3 of 1994) rejected the requirement.

ACTIVITY

To consolidate your knowledge of involuntary manslaughter please complete the table at the end of this chapter – you may find it useful to attempt this as a revision exercise.

7.3

RECKLESS MANSLAUGHTER

ACTIVITY

Does Adomako mean that there is now no such thing as reckless manslaughter?

Although it is not discussed in Adomako, it is likely that a form of manslaughter based on subjective recklessness survives. You may recall that Stone and Dobinson held that subjective recklessness as to ordinary injury (i.e. not death or even serious injury) was sufficient for manslaughter. Adomako expressly approved Stone in its use and definition of ‘reckless’.

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ACTIVITY

Since the decision in Moloney the mens rea for murder does not include foresight by D that death or serious harm is likely. Mrs Hyam, who set fire to a house killing two child occupants, might not be guilty of murder (although a finding of intention is possible – see Woollin). In that case, she should obviously be guilty of manslaughter. On what basis? Do you think it would be accurate to regard it as the same as gross negligence manslaughter?

It is obvious that there should be a form of homicide where D is subjectively recklessness to catch these ‘nearly murder’ cases. Most commentators would, however, prefer to limit this to subjective awareness of the risk of death or, at most, the risk of serious harm. Please see Lidar (1999) 4 Archbold News 3, for the current test for reckless manslaughter. The Law Commission considers that reckless manslaughter is no longer be required as a separate fault element as the remaining killings which currently fall under the umbrella of reckless manslaughter would fall within gross negligence manslaughter; if D realises there is a risk of death but unjustifiably carries on with his conduct that is gross negligence. In the view of the Law Commission, therefore, cases such as Lidar would, in future, be prosecuted under gross negligence manslaughter (above). 8. CRITIQUE OF INVOLUNTARY MANSLAUGHTER

Involuntary manslaughter has attracted a great deal of criticism. You will find a number of references for further reading at the end of the homicide chapter in your textbook. You may also find it valuable to read the extract from C.M.V. Clarkson’s article “Context and Culpability in Involuntary Manslaughter; Principle or Instinct” in the Text and Materials. 9. REFORM

All forms of manslaughter discussed here have been subject to suggestions for reform found in a number of documents, including the Law Commission Report ‘Partial Defences to Murder’ (Law Com No 290, 2004) and the 2006 report, ‘Murder, Manslaughter and Infanticide’(Law Com No 304, 2006). The result has been a proposed ladder of offences detailed at the beginning of the homicide chapter in your textbook.

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Study Checklist Please check you can now • • • • • • • define the basic actus reus ingredients of homicide distinguish between murder, voluntary manslaughter and involuntary manslaughter; analyse the requirements for the defences of provocation and diminished responsibility; describe the rules governing gross negligence manslaughter; identify the offence of subjective reckless manslaughter; identify the principles governing unlawful act manslaughter; comment on the shortcomings of these offences and comment upon proposals for the reform of the homicide laws.

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Offence

Elements

Cases and Commentary

Unlawful Act manslaughter

Intentional act

Which is unlawful

Which is dangerous

Which causes death

Gross negligence manslaughter

Duty of care

Breach involves a risk of death

Causes death

“So bad it is a crime”

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Topics to be studied: • Secondary participation in crime

1.

OBJECTIVES

By the end of this chapter you should be able to: • • • • Identify the perpetrator(s) of a crime and any secondary participants in it; Define what conduct amounts to secondary participation in crime; Analyse the mens rea required of an accessory and distinguish this from the mens rea required of the perpetrator; Describe the rules applicable to joint enterprise.

2. • • •

ESSENTIAL READING This study guide. McAlhone and Huxley-Binns, Criminal Law – The Fundamentals, 2007, Sweet and Maxwell, Chapter Eleven. Clarkson and Keating, Criminal Law – Text and Materials, 6th Edition, 2007, Sweet and Maxwell, Chapter Six.

Students commonly find this a difficult area of the law, primarily due to a lack of clarity in the legal principles. Consequently it is integral you perform the directed reading and activities within the chapter to fully understand this topic.

3.

INTRODUCTION

The first issue you must understand in your study of accessorial liability is the terminology you will find in this chapter. Firstly, a person who performs the actus reus of a crime is known as the perpetrator or the principal of that crime. If the actus reus is performed by more than one person jointly, then they will be joint principals. Secondly, perpetrators of crimes often have accomplices who assist or encourage them in the commission of the crime and these are known as accessories to the crime or secondary parties to it and are ‘liable to be tried . . . and punished as a principal offender’.

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TEXT BOOK ACTIVITY

Please read the introduction and discussion of ‘Distinguishing accessories from principles’ in Criminal Law – The Fundamentals.

Innocent agent The perpetrator is then the person who physically performs the actus reus and is its most immediate causer. However, exceptionally, D may be regarded as the perpetrator even though the actus reus was performed by another. This arises where D uses an ‘innocent agent’ to perform the actus reus for him.

ACTIVITY

Can you think of a situation where the actus reus of an offence is performed by an innocent agent? Please read the Fundamentals. discussion of innocent agents in Criminal Law – The

4.

ACCESSORIES

Section 8 of the Accessories and Abettors Act 1861, as amended by the Criminal Law Act 1977, provides: Whosoever shall aid, abet, counsel or procure the commission of any indictable offence . . . shall be liable to be tried, indicted and punished as a principal offender. Section 44 of the Magistrates’ Courts Act 1980 contains a similar provision in relation to summary offences.

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4.1

Actus Reus

ACTIVITY

Read the case of Attorney-General’s Reference (No. 1 of 1975) [1975] 2 All ER 684, CA in Text and Materials. (a) What was the charge?

(b) How did Lord Widgery CJ describe the fours terms aid, abet, counsel and procure?

(c) One word is especially different to the other three. Which one? Why?

ACTIVITY

Please read Criminal Law – The Fundamentals ‘Who is an accessory’ and complete the following grid.

Brief definition

Case Examples

Consensus? Yes/No

Causation? Yes/No

Aid

Abett

Counsel

Procure

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What constitutes ‘assistance or encouragement’? As you will have discovered, apart from the special case of ‘procuring’, A must have given assistance or encouragement in order to be convicted as accessory to a crime. Assistance or encouragement may occur in any number of ways, For example • • • • • Driving the perpetrator to the scene of the crime - DPP for Northern Ireland v Lynch [1975] 1 All ER 913 Holding a woman down whilst she is raped - Clarkson [1971] 3 All ER 344, C-MAC Cheering and clapping an unlawful concert - Wilcox v Jeffrey [1951] 1 All ER 464, DC Opening a bank account to enable the perpetrator to pay in forged cheques Thambiah v R [1965] 3 All ER 661, PC. Supplying equipment or information for use in the commission of a crime - NCB v Gamble [1958] 3 All ER 203, DC.

Presence A question which has exercised the courts several times is whether mere presence at the commission of the offence without more constitutes assistance or encouragement.

ACTIVITY

In the film The Accused, starring Jodie Foster, a woman was held down and raped in a café full of people. A number of people watched these events, some clapping and cheering. Anyone holding a woman down would aid and abet the rape, but would the spectators? Please read Criminal Law – The Fundamentals ‘Actus reus of Secondary Liability’ for the answer to this question.

It is clear that a mere accidental spectator of the commission of an offence will not without more be an accomplice. If he does an act of positive assistance or encouragement (such as the clapping and cheering of the spectators), then the spectator can be convicted as an accessory, even though his initial presence was entirely accidental. If the accused was present pursuant to a prior agreement that the offence be committed, there is no doubt that his mere presence would constitute encouragement without the necessity for the prosecution to prove that he did anything further (Smith v Reynolds [1986] Crim LR 559, DC).

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ACTIVITY

Is actual encouragement all that the prosecution needs to prove to win its case?

Even if the presence is construed as being an actual encouragement, this will only establish the actus reus. In addition, mens rea is required. In this context, that means that the prosecution must prove that A intended to encourage the perpetrator to commit the crime. This was stressed in Clarkson where it was noted that even if presence did in fact encourage the perpetrator, the accused might not realise he was giving encouragement, nor intend to do so. The reason why the conviction of the spectator at the illegal prize fight was quashed in Coney was that the Appeal Court thought that the trial judge’s direction could have been understood to mean that his voluntary and deliberate presence was conclusive evidence of such intention. It could have been somebody who was totally opposed to prize fighting. Allan shows that a totally passive spectator at an affray who does not, by this presence, intend to encourage the participants, cannot be convicted simply because he secretly intended to join in the fight if the side he favoured needed help. The principal offence Subject to exceptions, since the accessory’s liability is derivative flowing from the liability of the perpetrator, it is essential to prove that the principal offence that D is charged with aiding, abetting, etc. was actually committed (see Thornton v Mitchell [1940] 1 All ER 339, DC.) What are the exceptions to the rule requiring proof of the actual commission of the offence alleged to have been aided and abetted? • Where the perpetrator and the accomplice are liable but for different crimes

This situation can arise where different offences share the same actus reus, e.g. murder and manslaughter or ss. 18 and 20 of the Offences Against the Person Act 1861. According to some authorities, it is possible for the perpetrator to be convicted of murder and the accessory of aiding and abetting only manslaughter and vice versa, depending on whether they have an intention to kill the victim. Lord Mackay in Howe [1987] 1 AC 417, HL gave the following example: A gives D a gun informing him that it is loaded with blanks and telling him to go and scare X by firing it. The ammunition is in fact live, as A well knows, and X is killed. Even if D is convicted as perpetrator only of manslaughter because he lacks any intention to kill or cause grievous bodily harm, four Law Lords agreed with the Court of Appeal that A would nonetheless be guilty of aiding and abetting murder. Conversely, the perpetrator of the offence could be guilty of murder and the accessory of manslaughter if it was the accessory who thought that the ammunition was blank and the perpetrator who knew that it was live. In the case of murder and manslaughter, it is possible that even though both the perpetrator and accessory have the mens rea for murder, one of them may have the defence of provocation or diminished responsibility reducing their crime to manslaughter. It would appear that the other party, whether perpetrator or accessory, would nonetheless be guilty of murder. This is expressly provided for in the case of diminished responsibility by s. 2(4) of the Homicide Act 1957 and the implication of Howe is that the position would be the same in respect of provocation.

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Perpetrator not liable because he has a defence

In this situation, the perpetrator causes the actus reus of the offence and has the mens rea but is not guilty because of the existence of some defence. Can the accomplice be guilty of aiding and abetting the offence, even though the perpetrator does not, because of the defence, commit it?

ACTIVITY

Read the extract from Bourne (1952) 36 Cr App R 125, CCA in Text and Materials. Do you agree with the Lord Chief Justice that Mrs Bourne ‘committed the crime’ but is ‘excused punishment’ by virtue of duress?

Perpetrator not liable because he lacks the mens rea

Here the perpetrator performs the actus reus of the crime but does not possess the appropriate mens rea so that he commits no offence for example in Millward [1994] Crim LR 527 although the principle was acquitted due to lack of mens rea D was liable as the actus reus has been committed.

ACTIVITY

Read the extract from Cogan and Leak [1975] 2 All ER 1059, CA in Text Materials and the commentary that follows the case. a) Did A aid or abet, counsel or procure? b) Why was D acquitted? c) Does D’s acquittal effect A’s liability?

and

d) Is the Court of Appeal correct that A could have been charged as principal? It is worth thinking about this question!

Suppose A had been female! Section 1(1) of the Sexual Offences Act 1956 provided that only a man can commit rape as principal (though obviously a woman can be an accessory as held in DPP v K and B, e.g. if she holds the victim down). The better view is that innocent agency has no application in rape. 4.2 Mens rea

The mens rea needed for accessorial liability is uniquely complex in having a dual focus. Not only is there the usual requirement to establish fault in respect of the accessory’s own acts including the circumstances surrounding them but also his awareness of the intentions of
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the perpetrator. Where the assistance occurs beforehand, there is always an element of unpredictability in what the perpetrator is going to do. Isolating these two elements, we can summarise the essential requirements: A must (a) intentionally do the acts of assistance or encouragement done, realising they are capable of assisting or encouraging the perpetrator to do what constitutes the crime; and (b) knowledge of the essential matters of the principle offence. If A is charged with procuring, then it is submitted that he must also intend, by his acts, to bring about the commission of the crime. (a) Intention to do acts of assistance/encouragement This first element of the mens rea does not require that it is the accessory’s purpose that the crime be committed, just that he intentionally does acts which he knows to be capable of assisting/encouraging the perpetrator to commit the crime. According to Bryce [2004] EWCA Crim 1231, it requires “intentional assistance in the sense of an intention to assist (and not to hinder or obstruct) the perpetrator in acts which the accessory knows are steps taken by the perpetrator towards the commission of the offence.” The accessory therefore need only do acts that he knows to be capable of assisting or encouraging the perpetrator to commit the crime. What this means is that ‘intention’ turns out to be in essence subjective recklessness because it is enough that A realises that his conduct does, will or might well assist or encourage the perpetrator.

TEXT BOOK ACTIVITY

Please read Criminal Law – The Fundamentals’ from ‘Mens Rea of Secondary Liability to ‘The knowledge required of an accessory’.

(b) Knowledge of the principal offence From your reading you will have noticed that this aspect is less than clearly defined. It is worth adhering to the sub-categories expressed in your textbook and this is the approach that will be adopted in the following discussion. Knowledge of the essential matters What do we mean by knowledge? To be an accessory A must ‘know the essential matters which constitute that offence. He need not actually know that an offence has been committed, because he may not know that the facts constitute an offence and ignorance of the law is not a defence’ (Lord Goddard CJ in Johnson v Youden [1950] 1 All ER 300, DC). The ‘essential matters’ referred to mean all the circumstances required by the actus reus of the offence, any consequences necessary for the actus reus and any mens rea or fault element required by the perpetrator to commit the offence.

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The accessory must know that there is a significant risk or, possibly a likelihood, that (a) D is going to do the acts constituting the crime and (b) all the ingredients (‘the essential matters’) of the crime will be present. Knowledge of the essential matter merely means that the accessory must forsee as a real possibility that the principle might commit the principle offence.

ACTIVITY

Suppose A supplied a gun to D knowing that it would be used in an armed robbery. If D shoots someone dead in the course of the robbery, what would the prosecution need to prove in order to make (a) D guilty of murder and (b) A guilty as an accessory to murder?

If subjective recklessness suffices to fix liability on the accessory, it creates the unusual situation that his mens rea may be less than that required for the perpetrator. In the above example the accessory would be guilty of murder if (a) the perpetrator shot the victim with the intention of killing or causing grievous bodily harm and (b) the accessory realised when supplying the gun that there was a significant risk that the perpetrator might use it to deliberately (i.e. with the mens rea for murder) kill someone in the course of the robbery. Of course, the actual perpetrator can only be convicted of murder if he intended to kill or cause grievous bodily harm. It would not be enough that he realised there was a significant risk of killing, e.g. from a ricochet of a bullet fired to frighten (see Reardon [1999] Crim LR 392, CA). Must A’s knowledge extend to knowing the exact offence which P is to commit? The law does not require knowledge of the precise details of the particular crime to be committed. If A supplies the perpetrator with a jemmy, asking no questions but realising that it is likely to be used for some criminal purpose, it would not be fair to convict A of aiding and abetting murder if the perpetrator used the jemmy to attack and deliberately kill someone. It could not be said that A intentionally aided D to commit that crime. According to Bainbridge [1959] 3 All ER 200, CCA it is sufficient to prove that A knew the ‘type of crime’ to be committed. If the perpetrator uses a jemmy supplied by A to break into a house, will A be guilty of aiding and abetting the burglary if the perpetrator intended to inflict GBH on someone in the house when A believed that he intended to steal from the house to be broken into?

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CASE BOOK ACTIVITY

Read the extract from DPP v Maxwell [1978] 3 All ER 1140 in Text and Materials. • • • Did the House of Lords approve the Bainbridge principle? Did the House depart from it in any way? How would you formulate the principles applicable after DPP v Maxwell?

It will be evident that problems under this head tend to arise when the defendant’s assistance or encouragement occurs prior to the commission of the offence since, if it is given at the time the offence is being committed, A will be well aware of the precise offence being committed. However, a similar problem can arise where the parties embark on a joint unlawful enterprise and one of the parties departs from the joint enterprise agreed and perpetrates a further crime. The question then is whether A would be liable as an accessory for that further crime?

ACTIVITY

At this point you might find it useful to draw out a revision grid of the mens rea requirements under s. 8, for example:

Case example(s) Intention to do acts of assistance/encouragement; A realises his act might assist Knowledge of the essential matters of the principal offence

Commentary

Knowledge of the type of crime

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5.

JOINT UNLAWFUL ENTERPRISE

In many cases, two or more people will embark on a joint enterprise to commit a crime which they have planned and agreed beforehand. The essential ingredient of joint enterprise is a shared common purpose – ‘a shared common intention . . . each has the same intention as the other and each knows that the other intends the same thing’ – Petters and Parfitt [1995] Crim LR 501, CA (our emphasis). The rule is that each party is liable for whatever crimes the others commit which come within the scope of the common purpose or design. Thus, if D1 and D2 commit a robbery at a petrol station, with D3 remaining in a car as a get-away driver, all will be liable for the acts expressly or impliedly agreed upon by all parties as part and parcel of the common design. There is some debate about whether this area of law is a distinct form of liability. The better view, however, seems to be that it is a (perhaps illegitimate) extension of the standard law on aiding, abetting, counseling and procuring – in the words of Professor Smith ‘a bastard appendage’ to it ((1994) 144 NLJ 679, 682). It is, however, common ground that joint enterprise does import special rules which relax the normal requirements for accessorial liability. The precise extent to which they differ has never been properly analysed by the courts and is rather uncertain. Issues arise when one defendant goes further than the agreed common design. What, in that case, is the liability of the other participants? For the answer to this question we need to examine the forms of departure that may take place during these joint enterprises. Accidental departure It is possible for parties who are endeavouring to carry out the common purpose, to go beyond it accidentally. The rule is that if D’s acts are within the scope of the enterprise so that A is responsible for them, A is also responsible for any unforeseen consequences of those acts to the same extent as D (Baldessare (1930) 22 Cr App R 70, CCA). It will be seen that this accidental departure principle forms an exception to the general rule in Bainbridge that, to be convicted, the accessory must know the type of crime to be committed. Deliberate Departure

ACTIVITY

Imagine that you agree to break into a warehouse with Bonnie and Clyde. When leaving the warehouse, you are challenged by a security guard. Bonnie pulls out a gun and deliberately shoots the guard dead. Should you be guilty of murder if you: (a) (b) (c) had no idea B and C were carrying weapons; knew B and C were carrying weapons; knew B and C were carrying weapons but they had agreed they would be used only to frighten; knew B and C were violent people who had used guns to murder people before but you did not know whether they were carrying guns on this occasion? Page 114

(d)

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You will find the answers to this below. An example of a deliberate departure is provided by Davies v DPP [1954] 1 All ER 507, HL. A was a willing participant in a pre-arranged gang fight on Clapham Common which ended with one of the rival gang being stabbed to death. It was held that A was not an accomplice to manslaughter because he did not know that the perpetrator was carrying a knife and the scope of the joint enterprise was limited to assaulting with fists. However, suppose that A had known that the perpetrator was carrying a knife. Clearly, if A had tacitly agreed to the use of the knife if necessary, then its use would be part of the common purpose and A would be liable to the same extent as the perpetrator. Such tacit agreement would normally be inferred from proof that A knew that the knife was being carried. Use of the knife would not be a departure from the common purpose. Foresight of possible departure Furthermore, it appears from the House of Lords’ decision in Powell; English [1997] 4 All ER 545 that, even if A does not agree, tacitly or otherwise, to the use of the knife, where ‘one party foresees that in the course of the enterprise the other party may carry out, with the requisite mens rea, an act constituting another crime, the former is liable for that crime if committed by the latter in the course of the enterprise’.

TEXT BOOK ACTIVITY

This is a complicated area of law and it is worth you finding time to read the case of Powell; English [1997] 4 All ER 545 in Text and Materials and the commentary that follows it. You need to focus in particular on what falls within and what falls outside the common purpose. Please also read ‘Liability for unintended consequences’ points (a) to (c) in Criminal Law – The Fundamentals.

Firstly, if A goes along with the joint enterprise realising that D may intentionally kill in the course of the enterprise, A will be liable for murder if D does so kill (or attempted murder if D tries but fails to kill – O’Brien [1995] 2 Cr App R 649, CA). A is an accessory and satisfies both the actus reus and mens rea, because he ‘has in those circumstances lent himself to the enterprise and by so doing he has given assistance and encouragement to the perpetrator in carrying out an enterprise which [A] realises may involve murder’ (Hyde [1990] 3 All ER 892, CA). According to Powell, A need only foresee the crime as a ‘possible incident of the joint venture, unless the risk was so remote that the jury take the view that the secondary party genuinely dismissed it as altogether negligible’. As we saw at above, this principle may also apply to non-joint enterprise accessories (Reardon). Please note that a ‘normal’ accessory under section 8 above must be proved to have assisted or encouraged the particular crime charged (murder, in our example). However, a joint enterprise accessory’s assistance or encouragement of the enterprise itself suffices, and this may be a common law rule or an aspect of section 8 itself (which it is has not been made clear by the judiciary). There is no need to show an accessory to a common purpose did any specific acts of assistance or encouragement for the crime committed in the course of the enterprise which departs from its common purpose. Essentially, given the appropriate
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foresight, his assistance or encouragement of the crime within the common purpose counts as assistance or encouragement of the crime outside it. It follows that, on the current law, the situations in our last activity would be resolved as follows: (a) Not guilty. The shooting was outside the common purpose and not contemplated. (b) Guilty. The court would infer your tacit agreement to the use of weapons unless there is evidence to the contrary. Therefore the shooting to kill or cause GBH was within the common purpose. Even if there is evidence to the contrary, you would be liable if you realised B or C might deliberately shoot to kill or cause GBH. (c) Guilty, if you realised that there was a real risk that B or C might deliberately shoot to kill or cause GBH, notwithstanding that the shooting was outside the common purpose. (d) Guilty, if you realised that there was a significant risk that B or C would murder with a deadly weapon, if challenged in the course of the break-in. Foresight and murder

ACTIVITY

But if A is guilty of murder because he realises D might, if necessary, intentionally kill during the course of a break-in, does that not contradict the assertion in Moloney and Hancock that intention to kill or cause GBH alone suffices for murder? Can it be right that a lesser mens rea is required for the accessory than for the perpetrator? Please refer to Powell; English [1997] for the answer to this question.

Unforeseen ‘fundamentally different’ acts

ACTIVITY

In English, it was assumed that A did not know D had a knife so that he did not foresee that D would stab the policeman. Should A be liable for murder because he realised that the policeman might be intentionally killed or intentionally seriously injured by the beating with the posts? Please read ‘Liability for unintended consequences’ point (d) in Criminal Law – The Fundamentals.

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A will be responsible for D’s act even if he does not foresee it as potentially lethal and the fact that he realises it will be done with the mens rea for murder – intention to do GBH – will make him a party to murder if death does result, whether the death is foreseen or not. If A is responsible for the act, he is also responsible for any of its consequences even if unforeseen and unintended by D. In English the policeman actually died from D’s stabbing with intent to kill or cause GBH. This act was not contemplated as a possibility by A who did not know of the knife. The House of Lords held that A needed to have at least foreseen an act of the type which caused the death and ‘in the present case the use of a knife was fundamentally different to the use of a post’ (cf. Gamble [1989] NI 268). The Powell; English principle applies not only to pre-planned crimes but also to a spontaneous attack by an irrational group of individuals all intent on doing serious harm to the victim. If death is actually caused by an act fundamentally different to any contemplated by the alleged accessories, they cannot be liable for murder even though they were intent, by a ‘fundamentally different’ method, on causing GBH themselves. The Court of Appeal has now provided some useful guidance for juries in the recent case of Rahman and others [2007] EWCA Crim 342. In determining the "fundamentally different" test in a case where the victim died during the course of an unlawful group attack the jury should ask themselves; (a) were the members of the jury sure that the defendants intended that one of the attackers would kill the victim intending to kill him or that they realised that one of the attackers might kill him with intent. If they were sure, a murder verdict would be appropriate. If they were not sure, (b) were they sure that the defendants realised either that one of the attackers might kill with intent to cause really serious bodily harm, or that really serious bodily harm would be caused, with or without intent? If they were sure, (c) what was the act which caused the death, and (d) did the defendant realise that one of the group might perform that act? If so, a murder verdict would be appropriate. If not, (e) what acts was the jury sure that the defendant realised that one of the attackers might do to cause the victim really serious harm, and (f) was the jury sure that those acts were not of a fundamentally different nature to the act which caused the death? If so, a verdict of murder would be appropriate. Please note the emphasis the court has placed here upon foresight of the act or of an act not of a fundamentally different nature. Use of a different weapon It should not affect A’s liability that he contemplated an attack with one weapon where the actual attack was with a weapon ‘different to, but as dangerous as’, the contemplated weapon, e.g. a knife instead of the contemplated gun or vice versa. A post is clearly not as dangerous as a knife! In Uddin [1998] 2 All ER 744, the Court of Appeal did not rule that unforeseen use of a knife in a combined attack was ‘fundamentally different’ from the use of clubs and kicks but only that the issue should have been left to the jury for decision. Greatrex [1999] 1 Cr App R 126, CA took a similar line on the question of whether the use of a bar or spanner during a concerted attack was ‘fundamentally different’ to the use of kicks with shod feet.

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CASE BOOK ACTIVITY

To consolidate your understanding so far, read the extract from the case of Greatrex [1999] 1 Cr App R 126, CA and the commentary that follows upon the Attorney-General’s Reference (No 3 of 2004) [2005] EWCA Crim 1882 in Text and Materials. In Attorney-General’s Reference a) What did H foresee?

b)

What did H not foresee?

c)

What would H have needed to foresee to be guilty of murder?

d)

What would H have needed to foresee to be guilty of manslaughter?

Liability for lesser offence? Logically, if D’s act is fundamentally different from any act foreseen by A, it is outside the scope of the joint enterprise and A cannot be in any way responsible for the act or its consequences. The House clearly endorsed this principle in holding that English was not guilty of either murder or manslaughter and it was applied subsequently by the Court of Appeal in Uddin. That is the position where the act causing death is quite different from any act envisaged by A whether because, say, a surprise weapon is used or a known weapon is used in an entirely different way (e.g. the kneecapping example). But there is another situation unresolved by English.

ACTIVITY

Suppose that A, a bookmaker, employs D to rough up P to encourage P to pay A a gambling debt. He stresses that D must not hurt him badly since this is more in the way of a warning. Contrary to instructions, D savagely attacks P and intentionally causes him serious injury. D is convicted of causing GBH with intent to cause GBH contrary to s. 18 of the OAPA 1861. • • Would A be guilty of the s. 18 offence? If not, would he be guilty of maliciously inflicting GBH contrary to s. 20 of the OAPA 1861?

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This factual situation is similar in principle to that in Wan and Chan [1995] Crim LR 296, CA. Clearly, D’s attack is a deliberate departure from the joint enterprise and not part of the common design. Nonetheless, if A contemplated that there was a real risk that D might intentionally cause GBH, he would be liable for the s. 18 offence under Powell. If he was not aware of this then, in strict theory, he should not be liable for any lesser offence even if he contemplated that such lesser offence might be committed by the perpetrator (Wan and Chan; Dunbar [1988] Crim LR 693, CA). The reason is that the nature of the attack (beating with intent to cause GBH) was unauthorised and unforeseen and, as it was a deliberate departure from the plan, A is totally absolved from responsibility for such acts and their consequences. A is not, on this view, an accessory to any offence because no criminal acts contemplated by A were performed by the perpetrator. He could be convicted of conspiracy to commit an assault occasioning actual bodily harm (which was what was agreed to be done) and inciting such an offence. In Stewart and Schofield [1995] 3 All ER 159, the joint enterprise was to rob P at his shop. D went armed with a scaffolding pole and A1 with a knife. A2 kept watch outside the shop. P was beaten to death with the pole. D pleaded guilty to robbery and murder. A1 and A2 were acquitted of murder but convicted of manslaughter. A1 and A2 appealed contending that D’s beating with murderous intent was neither part of the agreed common design nor contemplated by A1 and A2 as a possible departure from it. The court dismissed the appeal holding that, even though the jury’s verdict that A1 and A2 were not guilty of murder meant that the jury accepted that A1 and A2 did not contemplate killing by D with the mens rea for murder, this did not compel the court to find that D had acted outside ‘the course of’ the joint enterprise (by which the court presumably means outside ‘the scope of’ the joint enterprise). It was apparently up to the jury to decide this as a question of fact. Once it decided that D’s acts were still within the ‘course’ (scope?) of the enterprise, A1 and A2 would be responsible for those acts and their consequences. However, since they lacked any intent to kill or cause GBH and did not contemplate that D would have any such intent, they could only be convicted of manslaughter. The case is in conflict with Wan and Chan and a number of other cases. However, there is another line of cases, including Reid (1975) 62 Cr App R 109, CA, which supports it. Does Powell; English help to resolve the conflict? Surprisingly neither Wan nor Stewart was referred to in Powell. It appears from Powell that to take an act outside the scope of the enterprise and thus absolve A from any responsibility for it, it has to be both uncontemplated itself by A and fundamentally different from any other act that A has contemplated.

CASE BOOK ACTIVITY

Read Gilmour [2000] 2 Cr App R 407 and the commentary that follows in Text and Materials. What did A foresee D might do? What did A foresee D might be thinking when D did what A foresaw? What was A’s liability?

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Essentially if the act committed by D is that envisaged by A, A will be guilty as accessory ‘of the degree of offence appropriate to the intent with which he [A] so acted.’ Without giving any examples, the Court thought it ‘conceivable . . . that in some cases the nature of the principal’s mens rea may change the nature of the act committed by him and take it outside the type of act contemplated by the accessory.’ In that case A would not be responsible for the act at all and so could not be guilty of a lesser offence. Presumably it will be left to the jury in each individual case to decide whether it is or is not an act of the nature contemplated. 6. WITHDRAWAL FROM PARTICIPATION

An accomplice can avoid liability for an offence which he has assisted or encouraged by making an effective withdrawal from participation before the offence is committed.

TEXT BOOK ACTIVITY

Please read Criminal Law – The Fundamentals ‘Withdrawal of participation by an accessory’ and complete the following grid. You may find it useful to supplement your reading with the extract and commentary upon Beccera (1975) 62 Cr. App. R. 21 in Text and Materials.

Case Example

Brief facts

Legal principle(s)

Rook [1993] 2 All ER 955, CA

O’Flaherty [2004] 2 Cr. App. R. 20.

Grundy; Whitefield (1983) 79 Cr App R 36

Robinson [2000] 5 Archbold News 2.

Beccera (1975) 62 Cr. App. R. 212.

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ACTIVITY

What do you think an accessory would have to do in order effectively to withdraw from the offence? Should it be possible to withdraw, if the accessory has already given whatever assistance he planned? To what extent should an accessory have to take active steps to prevent the crime which he has assisted in order to withdraw from it?

7.

REFORM

TEXT BOOK ACTIVITY

Please read the passage detailing suggested reform in Criminal Law – The Fundamentals

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Topics to be studied: • Theft

1.

OBJECTIVES

At the end of this study guide you should be able to: • • • • Define and analyse the basic ingredients of theft; Explain how each element interrelates with each other; Identify whether theft is committed in a given fact situation; Critically comment on the breadth of the offence.

2. • • •

ESSENTIAL READING This study guide. McAlhone and Huxley-Binns, Criminal Law – The Fundamentals, 2007, Sweet and Maxwell, Chapter Seven. Clarkson and Keating, Criminal Law – Text and Materials, 6th Edition, 2007, Sweet and Maxwell, Chapter Nine.

3.

INTRODUCTION

Many people have a basic, and accurate, sense of what theft is. Examples of the most common forms of theft include shop-lifting or, picking someone’s pocket. The offence of theft exists in order to criminalise certain infringements of the civil law of property (and contract and restitution). However, as we shall see, more recent cases (notably those of the House of Lords) have taken an expansive, non-technical view of the elements of the actus reus in theft (see e.g. Gomez and Hinks below), and this ‘simplification’ has created acute tension between the criminal law and the civil law. The offence is denied in s. 1 of the Theft Act 1968. Section 1 provides: A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it.

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ACTIVITY

(a)

Identify the five elements of theft.

(b)

Identify the actus reus elements (there are 3).

(c)

Identify the mens rea elements (there are 2).

The five concepts used in the definition in section 1 are elaborated upon in the succeeding sections (sections 2–6). The following table will assist: Actus Reus Section 3 Section 4 Section 5 Mens Rea

Appropriation Property Belonging to another Dishonestly Intention permanently to deprive

Section 2 Section 6

I’m afraid this is deceptively simple. Section 1 is not difficult to learn, and expanding on the 5 elements by referring to the relevant expanding provision (sections 2-6) is a simple matter, but whilst some of the succeeding sections so give a more or less full definition of the relevant element, others do not. Some basic concepts (especially those relating to mens rea) remain largely undefined by the statute, allowing the courts a good deal of interpretative freedom. The consequence of some of this case law has been to put too much weight on the issue of dishonesty. As we shall see in a later unit of study, this element of theft is vague and uncertain, and is ill-equipped to bear the full force of law thrust on it. Although for the purposes of study we have to break down the definition of theft into its five constituent elements, you should always bear in mind that in a practical situation they are very much interrelated, and all elements must come together at a particular moment in time to constitute theft. Keep an eye on this requirement (that all 5 elements must coincide in time). Attention to detail and a logical approach to consideration of each element are key in this regard if you are to reach the correct conclusion on the facts of any case.

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4. 4.1

THE ACTUS REUS OF THEFT Appropriation

Most people agree that the natural meaning of ‘appropriates’ conveys the idea of treating something as your own when it is not. Examples include putting items on shelves in a shop into your own pocket. D is asserting some sort of right to property which is inconsistent with the owner’s rights. At least for a time, D is exercising dominion over the property and treating himself as the owner. D is in some way laying claim to the property. However, the legal meaning is different. It is far wider than the general perception because of the way the courts have interpreted the relevant section of the Theft Act 1968. Section 3(1) states Any assumption by a person of the rights of an owner amounts to an appropriation, and this includes, where he has come by the property (innocently or not) without stealing it, any later assumption of a right to it by keeping or dealing with it as owner. We will take the first phrase of s. 3(1) first, and consider the second part later. any assumption of the rights of an owner amounts to an appropriation . . .

ACTIVITY

Is it an appropriation to assume all or any of the rights of the owner?

The key case here is Morris [1983] 3 All ER 288. As we shall see, this is a House of Lords’ case. The House decided TWO things: 1. It is an appropriation to assume ANY ONE of the rights of the owner. This is still good law. And 2. That an appropriation can only take place where D exercises an unauthorised right over property. There is therefore no appropriation is you do something you are allowed to do. THIS IS NO LONGER GOOD LAW. We come back to why later. Back to the assumption of the owner’s right(s): this raises the question of what are the owner’s ‘rights’. The short answer is that anything that can be done with the property is a right of the owner in this context. It is the owner who has the right to sell property, hire it out, give it away, lend it, mortgage it, damage it, destroy it or throw it away. Equally, it is the owner’s right to use it as he sees fit – for example, if it is a book, he can read it, write in the margin, decorate the cover, store it in a drawer, put it on a bookshelf or use it as a doorstop. The assumption of just ONE of these myriad rights is enough in the eyes of the House of Lords, even though s. 3(1) talks of ‘any’ assumption of ‘the rights of an owner’. This would suggest that an assumption of the owner’s rights in general as a bundle should be required rather than just any single right. Nonetheless, the House of Lords has spoken and we must accept that the latter is the position. Thus, a person who switches or interferes with price labels on goods in a supermarket thereby appropriates (even if he does nothing else with
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the goods) because only the owner has the right to price the goods, a right which the labelswitcher has assumed. Consent and appropriation Prior to the Theft Act 1968, the old definition of theft (larceny) required the taking to be ‘without the consent of the owner’ and therefore a taking with consent could not be theft. However, this express ingredient was omitted from the new definition of theft in the TA 1968. What do we mean by consent in this context? We mean doing something we are expressly or impliedly given permission to do.

ACTIVITY

Do you think a shopper who took a packet of smoked salmon from a supermarket shelf and put it into the trolley provided would appropriate the salmon?

Would your answer differ if the shopper had a secret dishonest intention to transfer the salmon to his bag and not to pay for it?

In Morris, the House of Lords took the view that “an element of adverse interference with or usurpation of some right of the owner” was essential for there to be an appropriation. For this reason, therefore, a shopper would not appropriate when he took goods from the supermarket shelf and put them in the wire basket because, since he would be doing precisely what the owner impliedly invited him to do, there would be no ‘adverse interference’ with the goods. Far from ‘usurping’ the owner’s rights, the shopper would be recognising them by taking the goods to the cash desk in the wire basket. The House of Lords in Gomez [1993] AC 442 held that this aspect of Morris was obiter and also inconsistent with the earlier decision in Lawrence v MPC [1971] 2 All ER 1253, HL. It therefore disapproved Morris and held that adverse interference or usurpation was not necessary and a shopper would assume a right of the owner and therefore would appropriate as soon as he took the article from the shelf. This would be as true of an honest shopper who intended to pay as of an intending shoplifter. This illustrates the important point that there is nothing inherently wrong with ‘appropriating’ property. Appropriation is a neutral concept. Only ‘dishonest’ appropriations could constitute the offence of theft. The word used is ‘appropriates’ not ‘misappropriates’. You will need to have a good understanding of the three House of Lords’ cases mentioned above. After the Textbook and Casebook activities below, you will find it useful to refresh your memory of the discussion above by completing the table here:

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Case Lawrence v MPC [1971] 2 All ER 1253

Brief facts

Legal Principle(s)

Morris [1983] 3 All ER 288

Gomez [1993] AC 442

CASE BOOK ACTIVITY

Please read the extracts from the cases of Gomez and Hinks [2000] 4 All ER 833 in Text and Materials. Would there be an appropriation where D makes a gift of property to A?

In Hinks the trial judge ruled that an acquisition by way of a fully valid gift could still be an appropriation and, if dishonest, theft. The Court of Appeal agreed and dismissed D’s appeal against conviction. By a majority of 4 - 1 (on this point), the House of Lords held that the Gomez principle was not confined to cases where the transaction was vitiated in some way so that receipt of an indefeasible gift (and presumably receipt of property under a fully valid contract) could be an appropriation even though P has no right to resume or recover any proprietary right or interest in the property. Whether it would be theft, would turn on the jury’s view of whether D acted dishonestly. Virtually any acquisition of property now satisfies the actus reus of theft and virtually everything turns on dishonesty. This further extension of Gomez is unfortunate and deeply ironic in that the purpose of the law of theft is to protect property rights conferred by the civil law. Yet here the criminal law is allowed to ride roughshod over civil property rights. The civil law says that D is the sole owner of the property and can defeat any legal claim to it, even from the victim, and yet his acquisition of it, if designated dishonest by the court, is theft.

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CASE BOOK ACTIVITY

For a discussion of the difficulties caused by the ruling in Gomez and Hinks please read extracts by Glazebrook and Shute and Horder that follow the case of Hinks in the Text and Materials.

Appropriation without physical interference Can property be appropriated without any physical interference? The case of Pitham and Hehl (1976) 65 Cr App R 45, CA suggests that it can. P was sent to prison leaving his house unoccupied. D introduced a prospective buyer to the house and invited him to buy P’s furniture. The Court of Appeal held that D appropriated as soon as he invited the buyer to purchase. Some authors view this as rather suspect because the ‘buyer’ knew they were not D’s goods to sell so, as both knew, they were arranging together to steal the furniture, rather than D at that stage assuming the owner’s rights to it.

TEXT BOOK ACTIVITY

Read ‘Appropriation’ in Criminal Law – The Fundamentals, up to (but not including) “Later assumption of a right”. 1. Make notes on the cases mentioned above. 2. Consider whether it really matters that ‘appropriates’ should be given such a wide meaning.

Later assumption of rights As promised above, we return now to the second phrase of s. 3(1) and this includes, where he has come by the property (innocently or not) without stealing it, any later assumption of a right to it by keeping or dealing with it as owner. Please note that this part of s. 3(1) provides expressly for the case where D initially gets the property ‘without stealing it’ – which may be entirely ‘innocently’ or it may involve some tortious or other civil liability without being criminal. ‘Any later assumption of a right to it by keeping or dealing with it as owner’ amounts to an appropriation.

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ACTIVITY

Write down two examples of a situation where you receive property without stealing it but later steal it by keeping or dealing with it as owner.

Examples you might have chosen include: (a) where the victim lends you property and later on you dishonestly decide to keep it or sell it, e.g. a book; (b) similarly if you borrow property without the owner’s consent intending to return the property. Although this would be wrongful in civil law terms, it would not be theft initially because you would lack the necessary intention permanently to deprive. A later decision to dishonestly keep it would constitute theft; (c) if you find property believing the owner cannot be found by taking reasonable steps, you would not be dishonest (s. 2(1)(c) of the TA 1968). However, if you become aware of the owner’s identity, it would be theft dishonestly to keep the property. The forms of appropriation we have considered hitherto all envisage some positive act on the part of D. By contrast it appears that D, without performing any act, can ‘keep’ property ‘as owner’ by a mere mental decision not to return it. In other words an omission to return the property is ‘keeping it as owner’ and therefore ‘a later assumption’ of the owner’s rights. Is appropriation instantaneous or continuing? In Atakpu [1994] Crim LR 693, the defendants hired cars in Belgium and Germany using false passports and driving licences. They then drove them to England intending to sell them to unsuspecting buyers. They were arrested whilst still within the hiring period and charged with conspiracy to steal. The court’s jurisdiction for conspiracy at that time depended on the plan involving the commission of a theft in England. Applying Gomez, the court held that the cars were appropriated as soon as they were hired, it being irrelevant that the owner consented to them being driven off by the accused. The theft therefore occurred abroad. This leads us conveniently to the next question on appropriation. Could it be said that the appropriation abroad by the defendants continued whilst they drove the cars to and within England? If so, they would commit theft in England. The Court of Appeal held that no theft was committed in England but, at the same time, supported the idea that appropriation could be regarded as continuing to a limited extent. As a matter of policy, the court would prefer to leave it for the common sense of the jury to decide that the appropriation can continue for as long as the thief can sensibly be regarded as in the act of stealing or, in more understandable words, so long as he is ‘on the job . . .’. This seems a sensible and pragmatic compromise which views stealing as a process continuing whilst D is still ‘on the job’, e.g. ransacking a house. On any view, the process of stealing in Atakpu had come to an end when the defendants got clear of the hiring premises and long before they reached England. The ‘continuing appropriation’ theory does not stop D being guilty of theft immediately he commits the first act of dishonest appropriation. A burglar will steal jewels as soon as he takes them from the drawer and puts them in his pocket. The ‘continuing appropriation’ theory would simply say that he continues to steal them until the ‘job’ ends, presumably when he quits the house. As we shall see later, the implications of this are more important
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for the offences of robbery and aggravated burglary than theft, see e.g. Hale (1978) 68 Cr App R 415, CA

TEXT BOOK ACTIVITY

Now continue your reading of Criminal Law – The Fundamentals from “Later assumption of a right”, but NOT starting the next element (property) yet Does Claire appropriate, and if so, when? Claire, a shopper, was in a supermarket. As she was loading the conveyor belt with the items from her trolley, she failed to notice a toothbrush and she left the store without paying for it. Outside in the car park, she realised she had not paid for the toothbrush, but decided to keep it anyway.

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ACTIVITY

Now would be a good time to check that you can Define appropriation by reference both to section 3(1) of the Theft Act 1968 and case law. Illustrate that appropriation is a neutral term and the owner’s consent is irrelevant to appropriation. Explain the consequences for the mens rea of theft by defining the actus reus in neutral terms. Criticise the breadth of the term appropriation by citing judges and academics commentators. Do you know and understand the facts and law of the following cases?

Yes

No; I must go back and make additional notes…

Lawrence v MPC [1971] 2 All ER 1253

Morris [1983] 3 All ER 288

Gomez [1993] AC 442

Hinks [2000] 4 All ER 833

Pitham and Hehl (1976) 65 Cr App R 45

Atakpu [1994] Crim LR 693

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4.2

Property

Only ‘property’ is capable of being stolen. But what constitutes ‘property’ for this purpose? Section 4(1) does not give a comprehensive definition of ‘property’ but indicates that a wide variety of things can be stolen: (1) ‘Property’ includes money and all other property, real or personal, including things in action and other intangible property. Please see Text and Materials for the full statutory definition of property. Money In this context, money means only physically identifiable notes and coins including foreign currency. Therefore there can be no theft of money unless some particular notes and coins are appropriated. In particular, ‘money’ does not embrace purely paper transactions involving e.g. cheques and transfers between bank accounts. Real property This means land and things attached to land such as buildings and fixtures forming part of buildings, e.g. central heating systems or built-in kitchen units. As we shall see shortly, the remaining subsections in s. 4 cut down dramatically the scope for stealing real property. Personal property This covers any item with a physical existence apart from land and includes all the most common items stolen such as videos, cars, cigarettes and works of art. Money itself is also an example of personal property.

ACTIVITY

Personal property also includes property without any tangible physical existence. Write down two examples of such intangible property.

Things in action Things in action (also called choses in action – from the French word for ‘thing’) are personal rights of property which can only be enforced by legal action because they do not have any physical entity which can be physically possessed. The classic example is a debt which is simply a right to sue for money owed. Other common examples include the rights of beneficiaries under a trust, copyright, trademarks, and shares in a company. If you have a bank account with a credit balance, your bank (the debtor) owes you (the creditor) a debt for the amount of the balance. If D dishonestly takes one of your cheques and pays it into his own account, he will steal a debt owed by your bank to you for the sum which is transferred from your account to his. However, he will not have stolen the cheque, nor any money – no actual notes and coins were appropriated in this purely paper transaction. On the other hand, if he had gone to your bank and obtained cash for the cheque, then he would have stolen two things – the debt from you and the actual coins and notes handed to him from the bank (Kohn (1979) 69 Cr App R 395 ). The same analysis
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would hold good if your account were overdrawn and you had a contractual right given by the bank to overdraw. However, it is clear from Navvabi [1986] 3 All ER 102, CA, that where D, knowing that his own account is overdrawn, uses his cheque card so that the bank is obliged to meet cheques drawn by him, he does not steal from the bank. The reason is that, prior to the bank meeting the cheque on presentation by the third party, no debt was owed by the bank to anyone and therefore D has not appropriated any existing thing in action. This was a case where D dishonestly drew a cheque on his own account, but the same reasoning would apply if he dishonestly used someone else’s cheque to draw on their account in excess of any credit balance and authorised overdraft (Kohn). Other intangible property All things in action constitute intangible property but not all intangible property constitutes things in action. Section 30 of the Patents Act 1977 declares that a patent or application for a patent is not a thing in action but it is personal property and so covered by ‘other intangible property’. In Attorney-General for Hong Kong v Nai Keung [1987] 1 WLR 1339, PC it was held that export quotas granted to companies which could be sold to other companies were capable of being stolen. It was illegal to export textiles from Hong Kong except in accordance with the quotas granted. Companies which were unable to use their full quotas were allowed to sell them to others. The case held that an unauthorised sale by a dishonest director at a gross undervalue to another company in which he had an interest could be theft. One general area which has hitherto been held to be outside the scope of this provision is information. Suppose your lecturer carelessly left a copy of your summer examination paper just near a photocopier you happened to be using. Would you steal anything if you photocopied the question paper and replaced it where you found it? You would not steal the question paper itself because you had no intention permanently to deprive the owner of it. In Oxford v Moss (1978) 68 Cr App R 183 the Divisional Court held that the confidential information contained on a university’s exam paper was not property capable of being stolen. Presumably the same would apply to trade secrets obtained by industrial espionage and information held on computer. (Of course, there is an array of special offences created by the Computer Misuse Act 1990 to deal with unauthorised access to and interference with computerised information.) It was held in Low v Blease (1975) 119 SJ 695 that electricity is not property for the purposes of theft and this is no doubt why s. 13 of the TA 1968 creates a special offence of dishonestly abstracting electricity. Both gas and water constitute personal property and can be stolen. Limitations on stealing land We saw that the general definition of property in s. 4(1) includes real property. This would suggest that land can be stolen just like any other property. A glance at s. 4(2) will reveal that this is very far from being the case. In fact, s. 4(2) provides that land or things forming part of it and severed from it cannot be stolen except in the three situations defined in the subsection. Thus, D does not steal his neighbour’s land where he dishonestly extends his boundary fence to take in some of the neighbour’s garden.

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ACTIVITY

• •

Who can steal land under s. 4(2)(a)? How can they steal it?

Section 4(3) creates an exception to the rule in s. 4(2)(b) whereby it cannot be an offence to pick mushrooms or any fungi growing wild on any land unless it is done ‘for reward or for sale or for other commercial purpose’. Similarly, it cannot be an offence to pick ‘flowers, fruit or foliage from a plant growing wild on any land’ unless done ‘for reward or for sale or for other commercial purpose’. It would seem that the term ‘picking from a plant’ would not cover uprooting a plant nor indiscriminate lopping of branches. Those actions would fall within s. 4(2)(b). Other actions caught by s. 4(2)(b) would be stripping lead from a church roof, cutting down a tree, digging up a rose bush or removing a window frame from a building. Section 4(2)(c) applies only to those in possession under a tenancy. Because he is in possession of the land, a tenant cannot come within s. 4(2)(b) so that he cannot commit theft by digging up plants or chopping down trees. However, under s. 4(2)(c) he can commit theft if he ‘appropriates the whole or part of any fixture or structure let to be used with the land’. Things growing on the land or occurring naturally, such as gypsum or gravel, are neither structures nor fixtures. ‘Structure’ could include a building, garage, shed or wall whereas ‘fixture’ could include built-in furniture, plumbing, sanitary fittings and central heating installations. Wild creatures Section 4(4) is straightforward. Untamed wild creatures not ordinarily kept in captivity cannot be stolen unless they have been reduced into another’s possession or are in the course of being so reduced. The same rule applies to the carcasses of such creatures. If possession is lost or abandoned, the creature cannot then be stolen. 4.3 Belonging to another

Only property which ‘belongs to another’ at the moment of dishonest appropriation can be stolen. You may be tempted to think that property belongs exclusively to its owner but this is very far from being the case. The law of theft is designed to protect the rights of the owner of property but it also protects those with a lesser interest in it. Thus, if you pay to hire a car for one week, the property can be stolen from you as well as the car hire firm which owns it. ‘Belonging to another’ is comprehensively defined by s. 5 of the TA 1968: Property shall be regarded as belonging to any person having possession or control of it, or having in it any proprietary right or interest (not being an equitable interest arising only from an agreement to transfer or grant an interest). It is clear from this basic definition that the legal meaning of ‘belonging to another’ is far wider than the everyday meaning of the phrase.

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Ownership, possession or control Here we are addressing s.5(1) which allows property to be stolen from an individual who has possession and control of the property.

TEXT BOOK ACTIVITY

Please read Criminal law – The Fundamentals ‘a) Ownership, possession or control’ and make notes on the following cases.

Case

Brief facts

Legal Principles

Turner (No. 2) [1971] 2 All ER 441, CA

Meredith [1973] Crim. L.R 253

Woodman [1974] Q.B 754.

Proprietary right or interest Section 5 also extends property rights to those who have a proprietary interest. While, clearly an owner of property has a proprietary right or interest in it there are a number of lesser proprietary rights and interests falling short of full ownership. All of these lesser interests are protected by the law of theft. Property may be jointly owned by more than one person, for example, partners, in which case it is possible for one joint owner to steal from the other (Bonner [1970] 2 All ER 97, CA). If, as an impecunious student, you deposit your Rolex watch with a pawnbroker as security for a loan, the pawnbroker will acquire a proprietary right or interest in the watch (known technically as a lien) because he has a right to retain possession of the watch until the loan is repaid. Abandoned property Property can become ownerless if abandoned by its owner. However, this is unlikely to happen very often. You might have thought that the most obvious case was where D throws his property into the dustbin for collection by the local authority. In Williams v Phillips (1957) 41 Cr App R 5 it was held that the property in a dustbin is not abandoned by the householder but remains in his ownership until collected, at which point ownership transfers to the local authority. If rubbish is dishonestly taken and sold by dustmen, they would be
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guilty of theft. It should also be emphasised that losing something is not the same as abandoning it. If you leave your umbrella on a train, you may give up hope of getting it back but that does not mean that you relinquish the ownership of it. Abandonment would seem to involve a deliberate decision to relinquish ownership and one could argue that the owners of lost golf balls do not therefore abandon them. Since putting things in your dustbin does not suffice, it would appear that the owner would have to do something such as dumping the property by the roadside in order to abandon it. Transactions transferring ownership Since D must ‘dishonestly appropriate property belonging to another’, it is plain that the time for deciding if property ‘belongs to another’ is the moment of the dishonest appropriation (Lawrence). In most theft cases, this will present no problem because it will be clear that the property belonged to the victim at the outset and continued to belong to the victim throughout, so that at whatever time D dishonestly appropriated it, the property ‘belonged to another’. However, in some situations, even though D is acting dishonestly, there may be a transaction involving the property, by virtue of which D ends up becoming the owner of that property under the civil law. We have already come across this situation in Gomez and other cases in our discussion of appropriation. If, in the course of the transaction, D becomes the sole owner of the property which has ceased to ‘belong to another’, it becomes crucial to identify whether the dishonest appropriation occurred before or after the property ceased to ‘belong to another’. Unfortunately, this was an issue which the House of Lords in Gomez completely ignored even though it was most relevant to a proper disposal of the case.

ACTIVITY

Suppose that D drove into a self-service petrol station, filled up his car with petrol and dishonestly drove off without paying. On these facts, it is not clear whether D is or is not guilty of stealing the petrol. What is the crucial issue upon which his liability for theft would turn? For the answer to this question please read point d) ‘Cases where ownership has already passed when the defendant forms the mens rea’ in Criminal Law – The Fundamentals.

The petrol station transaction 1. D drives in (P owns, possesses and controls petrol) 2. D fills up (appropriation of petrol) and ownership, possession and control in petrol transfers to him at the same moment of delivery 3. D drives off without paying (appropriation of petrol but D now exclusively owns, possesss and controls petrol)

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The crucial issue is whether D’s first dishonest appropriation came only after the ownership transferred to him. The rule is that if D formed his dishonest intention not to pay only after the transfer of ownership, it is not theft. (There is, in fact, a special offence in s. 3 of the TA 1978 which caters for this situation – dishonestly making off without payment. If D dishonestly appropriates before any transfer of ownership, there is no problem. However, in our situation, if D never at any time intended to pay, his dishonest appropriation (filling up) seems to occur at the very moment of the transfer of ownership. Where the dishonest appropriation and the passing of ownership are coincident, there is a dishonest appropriation of property belonging to another. This is the implication of Lawrence, Gomez and Hinks. There are some special situations defined in s. 5(3) and (4) where, even though D becomes the sole owner of the property in question, it is artificially deemed still to belong to another for the purposes of theft. Let us now examine these situations. Belonging to another – special cases It cannot be stressed too strongly that it is only necessary to invoke s. 5(2)–(4) in cases where the property does not ‘belong to another’ within the general definition in s. 5(1). Obligation to retain and deal in a particular way (s. 5(3))

TEXT BOOK ACTIVITY

Please read point e) ‘Special cases where property would otherwise belong to the defendant at the time of dishonest appropriation’ point (i) and answer the following questions. What does section 5(3) provide? Why is this section necessary? Must there be a moral or a legal obligation to retail and deal with the property? How does this section operate when money is handed over to those collecting for charity? In Wain [1995] 2 Cr App R 660, the Court of Appeal, disapproving Lewis v Lethbridge [1987] Crim LR 59, DC, held that monies collected on behalf of a charity would fall within s.5(3). D ran discos in aid of a ‘Telethon’ charity event organised by Yorkshire Television. He paid the proceeds into a bank account he had opened for the purpose but subsequently dishonestly transferred them to his personal account for his own use. He received the money (the original notes and coins) ‘on account of the charity’, the credit balance in the special account represented ‘the proceeds’ of this money and D was ‘under an obligation’ to the charity ‘to retain and deal with the proceeds in a particular way’(i.e. pay it to the charity). The credit balance in the special account was therefore to ‘be regarded as belonging to’ the charity by virtue of s.5(3).

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In Dyke and Munro [2002] 1 Cr App R 404 CA, the defendants were the trustees of a charity and therefore became the legal owners of monies donated to the charity by members of the public in street collections conducted by innocent volunteers. The monies never reached the charity’s bank account, having allegedly been misappropriated by the trustee defendants. The prosecution alleged that these monies belonged to the donating members of the public but the Court rejected that view, observing that the monies ceased to belong to them the moment they put them in the charity’s tin, at which point the ownership transferred to the defendant trustees. Consequently the monies did not, as alleged in the charge, belong to the donating members of the public at the time of the trustees’ later appropriations, so that their convictions were quashed. However, had the prosecution alleged theft from the beneficiaries of the charity, the charge would have succeeded because the trustees held the monies on trust for those beneficiaries. The latter would therefore have an equitable ‘proprietary right or interest’ under s.5(1). Alternatively s.5(3) would apply because the trustees received the monies ‘on account of’ the beneficiaries and were ‘under an obligation to retain and deal with that property in a particular way’ (i.e. to apply it for the benefit of the beneficiaries). Getting property by mistake (s. 5(4)) Please continue your reading of this section with point (ii) ‘Property got by another’s mistake’ The two essential features of the section are (a) D must get the property by mistake and (b) he must be under ‘an obligation to make restoration’. The provision was prompted by a desire to catch a person who dishonestly kept an overpayment of wages.

ACTIVITY

Suppose D’s employer miscalculates the wage due to D and puts too much in his wage packet. He hands the wage packet to D. When D opens the packet at home, he realises for the first time that he has been paid too much. He dishonestly decides to keep the excess and say nothing. • • Explain with reasons when D dishonestly appropriates the excess money. At this point does the excess money ‘belong to another’ under s. 5(1)?

This situation might not constitute theft without the help of s. 5(4) because the civil law rule is that the ownership in money would transfer on delivery, i.e. when the wage packet was handed over. At this moment, the employer would cease to have any proprietary right or interest in the money long before there is any question of dishonesty on the part of D. This is when s. 5(4) would come into play. D received the extra money by the employer’s mistake and, under the law of restitution, D would be under a legal obligation to repay the extra amount mistakenly overpaid. Thus the extra money would, by virtue of s. 5(4), still be deemed to belong to the employer, notwithstanding that the entire ownership in it had been transferred to D. Even though D has become the owner of the extra notes and coins, it appears that a dishonest decision to keep it does amount to a dishonest appropriation (see our discussion of appropriation above).

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Of course, the traditional method of paying wages in cash has now been superseded for many employees by a direct transfer from the employer’s bank account to that of the employee.

ACTIVITY

Suppose your employer credits your bank account with £100 more than was due. When you discover the error, you dishonestly fail to return the money. • • Have you stolen any money? What ‘property’ has been stolen?

Since the transfer between banks is purely a paper transaction, no money (notes and coins) physically changes hands. We therefore have to look for some other ‘property’ which is appropriated. The obvious answer is the debt representing the extra amount credited to D’s account, which D’s bank now owes to D. This was gained by the employer’s mistake and D is under an obligation to restore the ‘value’ of this debt, which therefore, to the extent of the overpayment, is deemed to belong to the employer. These were the facts of AttorneyGeneral’s Reference (No. 1 of 1983) [1984] 3 All ER 369 where the Court of Appeal applied the above reasoning. Exactly the same view was taken in Ngan [1998] 1 Cr App R 331, CA, where the bank itself mistakenly credited D’s account with the proceeds of cheques meant for X’s account. Having established that D got the property by mistake, s. 5(4) can only operate if he is thereby under an obligation to restore in whole or in part the property or its proceeds or its value. Obligation here means a legal obligation. In Gilks [1972] 3 All ER 280, CA ethnic confusion prompted a bookmaker to pay D winnings on a race won by ‘Fighting Taffy’ when D had actually backed ‘Fighting Scot’. D realised the mistake when he was paid but refused to repay. D certainly got the money by mistake but he was not under any legal obligation to repay because it was a gambling debt which the law treats as unenforceable. Section 5(4) was therefore inapplicable. (Rather suspectly the court held that the ownership of the notes and coins did not pass to D on delivery and therefore still belonged to the bookmaker under s. 5(1).)

ACTIVITY

In light of Gomez, would it make any difference to D’s conviction in Gilks if the correct view that D did become the owner of the notes and coins handed over, prevailed?

In the mistaken overpayment cases, the law of restitution imposes an obligation to restore not the property (i.e. the actual notes and coins handed over) but its ‘value’ (i.e. the equivalent ‘money’). In the voidable contract cases, it can be argued that no obligation arises unless and until the contract is avoided (by its rescission) by P. However, if the contract is successfully rescinded, under civil law the ownership would in any case revert to
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P who would then have a proprietary right or interest in it under s. 5(1). There would once again be no need for s. 5(4). In answer to our Activity, it would seem that D dishonestly appropriated the money when he took delivery of it because he realised the mistake at that point. The case is the same as the delivery of the money to the dishonest taxi-driver in Lawrence. Cheques, banks and loose talk about money Before we leave the actus reus of theft, it is appropriate to say a little more about a problem we touched upon when we discussed the meaning of ‘property’. Strictly speaking ‘money’ means only physical notes and coins. In many cases P’s ‘money’ is taken in a purely paper transaction through the banking system. This can be done by issuing cheques, using cheque and debit cards or by causing a transfer between accounts in some other way, e.g. electronically through the ‘CHAPS’ transfer system (see Preddy [1996] 3 All ER 735, HL).

ACTIVITY

If D dishonestly borrows P’s debit card and uses it to pay a £40 bill before returning it to P with the result that P’s bank account is debited with £40, what property has D stolen?

You should not have had too much difficulty in deciding that no notes or coins (‘money’ in the strict sense) were stolen. The card itself was not stolen because there was no intention to permanently deprive P of the card. The property which has been stolen is a thing in action – the debt of £40 owed by P’s bank to P. You should always bear in mind that the only person who has money in the bank is the bank. The customer’s ‘money’ does not exist – it is merely a contractual right to be paid by the bank in accordance with the terms and conditions of the account. Suppose my salary is paid directly into my bank account each month, we might say that my wages are ‘transferred’ from the Wages account of Nottingham Trent University into my account. We tend to think of the transaction as something resembling the figure below.

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Salary transfers

The amount representing my wages This amount is ‘transferred’ each month – my wages

NTU’s wages account

The existing credit in my account

However, that is not, according to the House of Lords, what happens. Rather, we can represent the transaction as follows:

Salary ‘transfers’ under Preddy

The amount representing my wages

This balance deleted

is

My wages NTU’s wages account This new balance is created in my account

The existing credit in my account

According to the House of Lords in the leading case of Preddy, the credit balance in Nottingham Trent University’s is extinguished and a new credit balance is created in my account; this is my salary. You should be able to see that there was property involved in this transaction, but that property did not belong to another. If property does not belong to another, there is no theft.

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ACTIVITY

If you write out a cheque in my favour and give it to me, to whom does it belong?

The answer is that the cheque belongs to me – the payee. Would the cheque itself also be stolen if D was dishonest at the outset? According to Mitchell [1993] Crim LR 788, CA it would and, indeed, it would also be obtained by deception contrary to s. 15 [note that the s. 15 offence has been abolished by the Fraud Act 2006]. There are, however, considerable difficulties standing in the way of such a conclusion and Mitchell was regarded in this respect as wrongly decided by the House of Lords in Preddy [1996] 3 All ER 481. The most significant difficulty is that the cheque as a thing in action (the right to sue for the amount of the cheque) never belongs to anyone but D. It only becomes a thing in action when it is drawn in favour of D and issued to him. From the moment of issue it belongs only to D. He was the only person who ever had the right to sue on it. On the other hand the cheque form (the piece of paper) does ‘belong to another’ and D will dishonestly appropriate it under Gomez when he receives it. Unfortunately, other problems arise in relation to whether D intends permanently to deprive P of the cheque form, which we can postpone until later. 5. MENS REA

At the time he appropriates the property belonging to another, D must (a) be acting dishonestly and (b) have the intention permanently to deprive P of that property. 5.1 Dishonesty

CASE BOOK ACTIVITY

Read s. 2 of the TA 1968 in Text and Materials. • • Does this define what is and what is not dishonest? If D’s state of mind falls outside the provisions in s. 2(1), does that mean that he is dishonest?

Dishonesty is a peculiarly difficult concept to define and Parliament was unable to produce a suitable definition in the TA 1968. You should have realised that s. 2(1) does not tell us positively what is dishonest. Rather it gives three instances where, come what may, D is definitely not dishonest. The basic definition has to be gleaned from the case law, and is vague and uncertain. It follows that the first port of call for any defence counsel wishing to dispute dishonesty will be s. 2(1), for he knows that if D comes within any of its provisions, an acquittal for lack of dishonesty is certain. Only if s. 2(1) is or might be inapplicable
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would he have to worry about the general rules on dishonesty in the case law. Let us therefore begin with s. 2(1). Section 2(1) D is not dishonest if he believes one of the three things set out in s. 2(1)(a), (b) or (c). In each case D’s belief need not be based on reasonable grounds. No matter how stupid or ridiculous his mistake, if his belief is genuine he cannot be dishonest (Holden [1991] Crim LR 480, CA; Small (1988) 86 Cr App R 170, CA).

ACTIVITY

Suppose your milkman has forgotten to deliver the milk. Your neighbour has left for work and you take one of the bottles on his doorstep believing your neighbour will not mind provided you pay for it as you intend. In fact, your neighbour is furious when he comes home for lunch and finds himself short of milk. Are you dishonest? Text Book Activity Please continue your reading of Text and Materials up to (but not including) R v Feely and supplement your reading with the discussion of ‘Dishonesty Section 2(1)’ in Criminal Law – The Fundamentals and complete the following chart.

Section 2(1) Belief in a legal right

Case example(s)

Comments

Belief in consent

Belief the property is lost

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ACTIVITY

Suppose D finds a ring in the street and, believing that the owner would not be traceable, keeps it. Three days later, as a result of overhearing a chance conversation in a pub, she discovers the identity of its owner but decides to keep it. Would D commit theft?

Even if D is not dishonest when she initially appropriates because she holds the relevant belief, she will still commit theft if she later discovers the true owner and dishonestly decides to keep the property. Willingness to pay Section 2(2) provides that D may be dishonest ‘notwithstanding that he is willing to pay for the property’. Consequently a defendant who takes property an owner may not wish to sell and leaves the purchase price may be found dishonest. Dishonesty outside s. 2(1) As we noted above, the function of the concept of dishonesty is to set the standards to reflect the values implicit in society’s notion of the sanctity of property. Whose standards are to be used?

CASE BOOK ACTIVITY

Please read Feely [1973] 1 All ER 341, CA and the commentary that follows the case in Text and Materials. The decision in Feely, although still good law, has attracted considerable criticism from leading academics. Can you think why?

CASE BOOK ACTIVITY

Read the leading case of Ghosh [1982] 1 QB 1053 in Text and Materials. Did the Court of Appeal adopt: (a) an objective test, or (b) a subjective test, or (c) a test involving an element of each?

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The Court of Appeal in Ghosh steered a middle course in establishing a test which, although fundamentally subjective, did take into account objective matters. The court put forward a two-stage test: (a) the jury must decide, in the light of the defendant’s actions, intentions and beliefs, whether he was dishonest, judged by ‘the ordinary standards of reasonable and honest people’; if he was dishonest by those standards, the jury must decide whether D himself realised that his conduct was by those standards dishonest. ‘It is dishonest for D to act in a way which he knows ordinary people consider to be dishonest, even if he asserts or genuinely believes that he is morally justified in acting as he did’. In other words, D is judged not by his own standards of honesty and morality but by his understanding of the standards of ordinary people.

(b)

ACTIVITY

Can you be dishonest if, in civil law, you acquires unchallengeable ownership of the property by virtue of a contract you have has made? For the answer to this question think back to the discussion of property transactions when we addressed appropriation.

The case of Hinks appears to establish that a person who acquires indefeasible ownership by virtue of a valid contractual or gift transaction does appropriate property belonging to another. But can such a person, even if his actions are morally dubious, be dishonest in doing what, according to the civil law, he has a perfectly legal right to do? Clearly Hinks admits that very possibility and, given that dishonesty is currently regarded as a question of fact for the jury, it is impossible to predict the outcome in individual cases. It is curious that the general definition of dishonesty has yet to be considered by the House of Lords, and such a consideration could bring radical changes to the current position. Indeed such changes may be necessary on the ground that the current formulation fails the ‘certainty’ test prescribed by the European Court of Human Rights (see Hashman and Harrup v UK [2000] Crim LR 185, ECHR and commentary thereon). The present rules afford too little guidance on what is and what is not theft. However the Crown Court in Pattni and ors. [2001] Crim LR 570 rejected a claim that the vagueness of the Ghosh test for dishonesty contravened Art. 7 of the European Convention. It remains to be seen whether the Appeal Courts will take the same view.

TEXT BOOK ACTIVITY

To consolidate your knowledge please finish reading the discussion of dishonesty in Criminal Law - The Fundamentals.

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5.2

Intention to permanently deprive

CASE BOOK ACTIVITY

Please read s.6 and the commentary that follows in Text and Materials

Please note that section 6 of the TA 1968 simply deems there to be an intention permanently to deprive in certain situations where there would otherwise not be an intention permanently to deprive. The phrase should be given its ordinary, everyday meaning and only if you decide that there is no intention permanently to deprive on this basis, do you need to consider the extended meanings in s. 6. We should also stress that what is needed is an intention permanently to deprive at the moment of dishonest appropriation. There is no need to prove any actual permanent deprivation.

ACTIVITY

Suppose X hires a car from Y for one week. If D dishonestly takes the car from X, intending to keep it for two weeks, does he commit theft?

You will recall the wide definition of ‘belonging to another’ which means that people with relatively limited interests in property can be stolen from. In such cases the intention permanently to deprive means simply an intention to deprive P of his entire interest in the property. Therefore, in our example D would intend permanently to deprive X but not Y. He would be guilty of theft from X but not from Y. Dishonest borrowing The requirement of an intention permanently to deprive means that in general it is not theft to borrow someone’s property, albeit dishonestly but there is an exception contained in s. 6 which we shall be examining shortly.

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ACTIVITY

Suppose you borrowed money from your employer’s till in order to back a horse which was a ‘dead cert’. You intended to repay the money the next day. Did you have an intention permanently to deprive your employer of his property? Suppose you had run out of milk for your shredded wheat. If you borrowed a pint of milk from your neighbour’s doorstep intending to replace it with another pint when you had been to the shops, would you have an intention permanently to deprive your neighbour of his property?

In everyday language, we often talk about ‘borrowing’ money from another, and you might be tempted to conclude that in such a case D would not have an intention permanently to deprive. However, this overlooks the fact that the law regards each individual coin and note as a distinct piece of property. When we talk of intention permanently to deprive we mean of the actual property taken and, in the case of money, this means the actual notes and coins originally taken. It follows that D will have the necessary intention where he ‘borrows’ P’s money unless he intends to return the exact same notes and coins first taken (Velumyl [1989] Crim LR 29, CA). The fact that D intends to return equivalent notes and coins is relevant to the issue of whether D is dishonest, but it does not prevent the necessary intention permanently to deprive. Similarly, an intention to return an equivalent pint of milk does not negate the intention D had permanently to deprive of the pint of milk originally taken. Section 6 This section is badly drafted and, in the words of JR Spencer, ‘sprouts obscurities at every phrase’ ([1977] Crim LR 653). There are two key points; first, s. 6 is only relevant if D does not ‘mean’ (i.e. intend) P ‘to lose the thing itself’ (i.e. the property appropriated). Secondly, s. 6(1) ought to have ended at the semi-colon after ‘other’s rights’. The remainder of that subsection should then have become s. 6(2)(a) and s. 6(2) should then be s. 6(2)(b), because both are simply giving instances of conduct which could (in the first case) and would (in the second case) amount to treating ‘the thing as his own to dispose of regardless of the other’s rights’. It is the intention to do this which must be proved in order to trigger the operation of s. 6, which will then deem D to have an intention permanently to deprive which he has not actually got! This view was endorsed by the Court of Appeal in Fernandes [1996] 1 Cr App R 175, CA.

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Treating as one’s own to dispose of

TEXT BOOK ACTIVITY

Please read the introduction to an intention to permanently deprive in Criminal Law – The Fundamentals and point (a). What then does the concept of ‘treating as one’s own to dispose of regardless of the owner’s rights’ embrace? The first point is that it is not enough for D to intend to treat the thing as his own simply by using the property regardless of the owner’s rights. The section requires an intention to treat it as his own ‘to dispose of’. Our starting point is Cahill [1993] Crim LR 141, CA where the words ‘to dispose of’ were held to mean more than ‘merely to use the thing as one’s own’. They suggested that D must intend ‘to get rid of; to get done with; to . . . sell’ the property.

ACTIVITY

How did DPP v Lavender [1994] Crim LR 297 construe the phrase ‘to dispose of’? How did the court in Marshall [1998] 2 Cr App R 282, CA construe ‘to dispose of’ and ‘to treat the thing as his own’? What does the Marshall mean for those who pass on unexpired parking tickets to new arrivals?

The remainder of s. 6(1) and the whole of s. 6(2) give specific instances of where D would be ‘treating the property as his own to dispose of regardless of the owner’s rights’. Let us consider them. Borrowing or lending equivalent to outright taking A borrowing or lending of the property may amount to treating it as one’s own, etc. but ‘only if’ it ‘is for a period and in circumstances making it equivalent to an outright taking or disposal’.

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ACTIVITY

Suppose D dishonestly takes your railway season ticket which has one month to expiry. Would D commit theft if he intended to return it to you (a) the next day or (b) two days before expiry or (c) the day after expiry? Please read point (b) in Criminal Law - The Fundamentals.

The leading case on this provision is undoubtedly Lloyd where a borrowing or lending would only be ‘equivalent to an outright taking or disposal’ if D’s intention was to return the property ‘in such a changed state that it can truly be said that all its goodness or virtue has gone’. When the films were returned they could still be shown as before and therefore retained their ‘virtue’. The fact that their exclusivity had been lost to the official distributors through the pirating did not deprive them of all their virtue. On the other hand, an intention to return a season ticket only when it expires would suffice. If the Lloyd test were applied literally, an intention to return the season ticket at any time before expiry would not be good enough because some virtue would remain. However, if the virtue remaining is insignificant in relation to the virtue lost, it is possible that the courts might leave it as a question of fact for the jury, enabling it to stretch it and regard it as ‘equivalent to an outright taking’. Another possible solution to the problem would be to allege that D had stolen not the ticket but the chose(s) in action represented by it. P has a contractual right to travel with the ticket and this contractual right (chose in action) to travel is intended to be lost to P permanently for the time D intends to retain the ticket.

ACTIVITY

Do you steal money if you borrow it from a friend, without their consent, when you intend to repay it?

Parting with property under a condition as to its return (s. 6(2)) D treats the property as his own, etc. if he parts with it ‘under a condition as to its return which he may not be able to perform’. This provision is intended to catch the case where D without authorisation uses P’s property as security for a loan, e.g. from a pawnbroker. D may not be able to pay back the loan when the time comes, even though when he first takes P’s property, he does intend to return it. It does not matter that D may be in possession of P’s property quite lawfully, e.g. he may have hired it from P, at the time he uses it as security. If D knows he may not be able to redeem the property, it does not seem to matter that he thinks it is very likely that he will be able to redeem it. If he is certain that he will be able to redeem it but, objectively, there is a clear risk that he may not be able to do so, the terms of s. 6(2) suggest that he would still be caught – but the matter has yet to be decided.
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It is arguable that s. 6(2) is in fact unnecessary since the situations it covers come within the general provision in s. 6(1). If D pawns the property, he is intending to treat it as his own to dispose of regardless of the owner’s rights. We can now leave s. 6 to consider one final matter. Conditional intention to deprive

ACTIVITY

Suppose D dishonestly picks up a handbag. On searching through it he discovers nothing he regards as worth taking because it contains only a few tissues and some cosmetics. He replaces the bag intact. Has D stolen anything? If so, what? Has he committed any other offence? If so, what? For the answer to this question please complete your reading of the theft chapter in Criminal Law - The Fundamentals.

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You may find it useful to complete the following chart for revision purposes.

Theft Act element Appropriation Section 3

Legal principles

Cases

Comments

Critique

Property Section 4

Belonging to another Section 5

Dishonestly Section 2

Intention permanently to deprive Section 6

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Criminal Law OFFENCES AGAINST PROPERTY II – FRAUD AND CRIMINAL DAMAGE

Topics to be studied: • Fraud and Criminal damage

1.

OBJECTIVES

By the end of this chapter you should be able to: • • Outline the old offences of obtaining by deception under the Theft Acts 1968 and 1978, and offer evaluative comment as to why these offences have been abolished; Describe in detail the new offence of fraud under the Fraud Act 2006, and the new offence to parallel theft, of dishonestly obtaining services, also under the Fraud Act 2006; Identify which of the offences apply in any given fact situation; Briefly describe criminal damage.

• •

In this chapter, we study two offences in detail. These are the crimes of fraud and of dishonestly obtaining services under the Fraud Act 2006. We also briefly examine criminal damage.

2. • • •

ESSENTIAL READING This study guide. McAlhone and Huxley-Binns, Criminal Law – The Fundamentals, 2007, Sweet and Maxwell, Chapter Eight and Chapter Nine. Clarkson and Keating, Criminal Law – Text and Materials, 6th Edition, 2007, Sweet and Maxwell, Chapter Nine.

3.

THE DECEPTION OFFENCES PRIOR TO THE FRAUD ACT 2006

Before 2006, there was no such thing as an offence of ‘fraud’. Instead there were a number of crimes under common law and the Theft Acts 1968 and 1978 which involved deception or conspiracy to defraud.

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3.1

The Theft Acts 1968 and 1978

The offences involving deception under the two Theft Acts were very specific and resulted in complicated case law. There were eight main offences involving deception under the Theft Acts: Section 15 of the Theft Act 1968 This section covered the offence of dishonestly obtaining property by deception with the intention permanently to deprive the other of it. Section 15A of the Theft Act 1968 This section was inserted into the 1968 Act by the Theft (Amendment) Act 1996 to cover the offence of obtaining a money transfer by dishonest deception. Section 15A undid as much of the damage caused by the House of Lords’ decision in Preddy [1996] 3 All ER 735, HL. as possible and made it an offence dishonestly to obtain for oneself or another a money transfer by any deception. A money transfer occurred when one account was credited with a sum of money and another debited with a sum of money and either the credit resulted from the debit or the debit resulted from the credit. Section 16 of the Theft Act 1968 This section provided that obtaining a ‘pecuniary advantage’ by dishonest deception was an offence. Basically a pecuniary advantage was not any financial or monetary advantage, but was exhaustively defined in s. 16(2) as borrowing by way of overdraft, taking out any policy of insurance or annuity contract (or obtaining an improvement of the terms of the same), being given the opportunity to earn remuneration or greater remuneration in a job, or to win money by betting. Section 20(2) of the Theft Act 1968 This made it an offence dishonestly to procure the execution of a valuable security by deception. It was a useful offence for the situation in which D obtained a cheque (a valuable security under s. 20(3)) by deception and paid it into his own account to ‘steal’ the funds. As we saw at 7.5.4. above, once the cheque is made out to D, it is not property belonging to another, and, because the cheque makes its way back to the issuer’s account, there is no intention permanently to deprive for the purposes of theft. Section 1 of the Theft Act 1978 Under s. 1 of the TA 1978 it was an offence dishonestly to obtain services by deception.

ACTIVITY

Write down two examples where D obtains ‘services’ without obtaining ‘property’.

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Examples would include obtaining a taxi ride, a haircut, a massage, a house survey, or a repair of your property when you have no intention of paying; or obtaining a university education by falsely claiming to have entrance qualifications. Sofroniou [2003] EWCA 3681 holds that the provision of banking or credit card services and the operation of a bank or credit card account can constitute ‘services’. Section 1(2) provided an exhaustive definition of what constitutes ‘services’: It is an obtaining of services where the other is induced to confer a benefit by doing some act, or causing or permitting some act to be done, on the understanding that the benefit has been or will be paid for. This provision excluded ‘gratuitous’ services. If no payment was envisaged D did not obtain ‘services’ under s. 1. If D deceived his neighbour into mowing his lawn by falsely pretending to have injured his leg, there was no ‘services’ because there was no understanding that the neighbour would be paid. If on the other hand, in the same situation, D agreed to pay the neighbour £5 (and indeed did so), D would have obtained ‘services’ because there was an expectation of payment. D would then commit the offence because, although the deception usually related to the matter of payment, there was no necessity for this and the lie about his injured leg sufficed. Section 2 of the Theft Act 1978 There were three crimes of dishonestly obtaining the ‘evasion of a liability’ by deception contrary to s. 2 of the TA 1978. Under s. 2(1)(a), it was an offence for D to secure the remission in whole or in part of any existing liability to pay. A common example was where D incurred a liability to pay then practised a deception which caused V, the creditor, to cancel the liability in whole it or in part. Under s. 2(1)(b), it was an offence for D to induce V to wait for or forgo payment on an existing liability. This crime was aimed at the stalling debtor who used a deception to get V to postpone payment or write off the debt. Section 2(1)(c) was a very widely drafted section which covered existing and future liabilities. For example, it was a crime under s. 2(1)(c) for D to deceive V to give him a free haircut by saying he, D, was a student when he was not. 3.2 The common elements of the deception offences under the Theft Acts 1968 and 1978

All eight of the Theft Act crimes above could be committed only where; • there was a deception, • the deception caused the obtaining of the relevant thing under each section, and • it was done ‘dishonestly’. Each of these elements will be analysed in order to provide a glimpse into why the crimes have been abolished. Deception Liability under the Theft Acts hinged on whether the thing obtained was obtained by a deception. One would therefore have thought that the definition of deception would be complete and accurate. One would be disappointed.

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Section 15(4) TA 1968 defined deception: For the purposes of this section ‘deception’ means any deception (whether deliberate or reckless) by words or conduct as to fact or as to law, including a deception as to the present intentions of the person using the deception or any other person. The essence of deception under the Acts was that there had to be; • an intentional or reckless false representation, • either expressly (e.g. by spoken words or letter) • or impliedly (i.e. through conduct or even silence), and • V was conned or taken in by the falsity. There are many situations where D implies that something is so, simply by his conduct or behaviour. Thus, when we book into a hotel, we impliedly represent that we intend to pay for the room (Harris (1975) 62 Cr App R 28); similarly when we order a meal in a restaurant.

TEXT BOOK ACTIVITY

Please read ‘The common elements of the deception offences’ in Criminal Law – The Fundamentals. Can you provide some examples of how an intentional or false representation can be made?

Let’s look at some of the forms of deception that have been exercised in the leading cases. Deception by cheque Where D pays for goods or services by cheque with a cheque guarantee card, there is a representation that “the state of facts existing at the date of delivery of the cheque is such that in the ordinary course the cheque will, on presentation for payment on or after the date specified in the cheque, be met” (Gilmartin [1983] 1 All ER 829, CA) and that D has the authority of the bank to use the guarantee card (MPC v Charles). If either representation is false, say because the bank has told D not to issue any cheques, or to return the cheque card to the bank for destruction, there is a deception. The same is true for the use of credit cards (Lambie [1981] 2 All ER 776). Deception by Ommission Firth was a consultant and was found to have deceived a hospital by failing to declare that certain of his patients were private patients, intending to avoid payment of fees due to the hospital. His omission to inform when under a duty to do so apparently sufficed as ‘conduct’. The outcomes in these cases have not been changed by the Fraud Act 2006. Difficulties arose, however, where the ‘victim’ was not in fact conned, or deceived, even though D did practice a deception.

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Cheque guarantee cards

ACTIVITY

From your reading what was the false representation D was making to the casino manager in MPC v Charles [1977] A.C. 177? Did this false representation deceive the manager and cause him to hand over the chips?

D, having been instructed by his bank not to draw any more cheques on his hopelessly overdrawn account and to return his cheque guarantee card, bought gaming chips at a casino using cheques backed by the cheque card. The evidence of the manager in Charles was that D’s credit-worthiness was irrelevant to him as long as he did not know that D had no authority to use the card. He went ahead with the transaction because he knew the bank would be paid and not because he relied on D’s false representation that he had authority to use the card. Nonetheless, the fiction was applied; given the false representation by D’s conduct, it was enough that (a) the victim remained ignorant of the truth because D did not reveal it and (b) it was thought that the victim would not have gone ahead, had he known the truth. The same reasoning was applied in relation to the unauthorised use of a credit card by the credit card holder in Lambie [1981] 2 All ER 776, HL. A limitation under the Theft Act A further issue with the offences under the Theft Acts was that, the deception had to be effective against another human being. A machine could not therefore be deceived. There are thousands of internet transactions every hour and many of these transactions do not involve human input at one end. If property was obtained, D might have committed a theft, but where services were obtained, or a liability was evaded, D escaped liability. Dishonesty This has been considered at the previous chapter and it is worth noting that s. 2 Theft Act 1968 never applied to the deception crimes, the only test being that from Ghosh [1982] 2 All ER 689. 4. THE FRAUD ACT 2006

The eight offences discussed above have been abolished.

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CASE BOOK ACTIVITY

Please read ‘B. The law prior to the Fraud Act 2006’, the commentary from the Criminal Law Revision Committee’, the ‘Law Commission Report’ and point ‘C. The Fraud Act 2006’ in Text and Materials for an introduction to the new offences. Why were the old offences no longer fit for purpose?

How many new offence(s) are there and how can the offence(s) be committed?

What new test replaces the previous concept of deception?

There is now one offence of fraud with three ways of committing it. These are by false representation, by failing to disclose information and abuse of position. The concept of deception is replaced with a new element, that of false representation. Under s. 2, this representation must be made knowing it is or might be untrue, dishonestly (the Ghosh test survives the enactment of these new crimes) and must be made with a view to produce a gain to D or another or loss or the risk of loss to the victim. Actual gain or loss is not, however, needed. It is likely that the removal of the requirement to prove that a deception has operated on a human being’s mind (i.e. cons the V) would mean that the new crimes encompass fraud on a machine, but in the event of doubt, s 2(5) specifically provides that the offence may be completed against a machine. A false representation may be express or implied, but because there is no need to prove that the false representation caused the obtaining of property (money transfer, etc.), the ‘deception fiction’ is repealed. As stated in the Explanatory Notes to the Act at para 15, ‘It is immaterial whether the merchant accepting the card for payment is deceived by the representation.’ The surgeon in Firth would continue to be guilty under the new crime, possibly by way of an implied false representation under s. 2 (by silence), but more certainly under s. 3 which more obviously encompasses his conduct (he dishonestly failed to disclose that his clients were private rather than NHS and he was under a legal duty to do so, and he intended by that failure to profit from it). However, it is at least arguable that his conduct might also be covered by s.4 if it was found that it was his professional duty to protect the financial interests of the hospital. The final example also covers conduct prohibited by s. 4. Section 4 deals with abuse of a position and is designed to cover fraudsters such as bankers and solicitors who are under a fiduciary duty to another and fail to perform that duty, dishonestly, with a view to gain or cause loss. It can be an inchoate crime.

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TEXT BOOK ACTIVITY

Please read Criminal Law – The Fundamentals ‘The Fraud Act 2006’ and ‘Fraud’ for an introduction to and an examination of the new offences.

Dishonestly obtaining services

TEXT BOOK ACTIVITY

Please read Criminal Law – The Fundamentals, the above titled section. In what way is this similar to the old offence of obtaining services by deception? How is it different?

Please see the grid in your textbook and on the following page for a summary of the differences between the old and the new offences.

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Section 1 Theft Act 1978 Deception

Section 11 Fraud Act 2006 No requirement of a deception. This means it is possible to commit the new offence though a machine, such as downloading software or giving false credit card details to an automated booking system for a concert, or train journey. Obtains ‘Services’ are not specifically defined, but are stated under sub-s. (a) to be made available on the basis that payment has been, is being or will be made for or in respect of them. References to conferring a benefit are abolished Yes - any dishonest act (it is not possible to commit this offence by omission alone) Intention to avoid (full) payment

Obtains Services (defined as where another is induced to confer a benefit by doing some act, or causing or permitting some act to be done, on the understanding that the benefit has been or will be paid for)

Dishonestly

D could commit this offence even where he paid in full or intended to do so. The Law Commission cites the example of where a parent lies about the religion of their child to secure a place at a fee-paying religious school, always intending to pay the fees in full. The Law Commission concluded such a defendant should not be regarded as guilty in such circumstances. Note that where there is a false representation and D intends not to pay (make a gain, cause a loss), a charge under section 2 or section 11 might be brought.

5.

MAKING OFF WITHOUT PAYMENT

Section 3 of the Theft Act 1978 has not been repealed by the Fraud Act 2006. Under s. 3 of the TA 1978, ‘a person who, knowing that payment on the spot for any goods supplied or service done is required or expected from him, dishonestly makes off without having paid as required or expected and with intent to avoid payment of the amount due shall be guilty of an offence’. The offence is aimed at situations where D tries dishonestly to avoid payment of what is due in circumstances liable to make him difficult to trace. Examples are: running out of a restaurant without paying for a meal; driving off from a self-service petrol station without paying for the petrol; or leaving a hotel without paying for the stay.

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ACTIVITY

Would the person we discussed above, who dishonestly drives from a self-service petrol station without paying for the petrol he has taken, commit theft or only the making off offence?

The answer depends on the facts. If D is dishonest at the time he fills up, he dishonestly appropriates the petrol belonging then to the garage and commits theft (Gomez). If he decides not to pay only after he has filled up, his dishonest appropriation would come at a time when the ownership had transferred to him and would not be of petrol ‘belonging to another’. There would be no theft of the petrol (Edwards v Ddin) only making off contrary to s. 3 of the 1978 Act. Actus reus D must (a) make off from the spot where payment is required or expected (b) without having paid as required or expected (c) for goods supplied or service done. ‘Makes off ’ The main question at issue is whether ‘makes off’ means simply departing from the spot or whether it connotes ‘decamping’ or ‘disappearing: leaving in a way that makes it difficult for the debtor to be traced’. There does not appear to be any need for haste or stealth (running out at top speed or sneaking out when the waiter has left the room). According to Brooks and Brooks (1982) 76 Cr App R 66, in a rare biblical reference, making off ‘may be an exercise accompanied by the sound of trumpets or a silent stealing away after the folding of tents’. ‘The spot’ D can only ‘make off’ when he leaves ‘the spot’ where ‘payment is required or expected’. In McDavitt [1981] Crim LR 843 the ‘spot’ was P’s restaurant, so that when D made his way to the door intending to leave without paying for his meal but did not actually go through the door, he only attempted to ‘make off’. This suggests that the ‘spot’ will generally be the premises as a whole rather than, say, the cash point for payment. Of course, there may be no ‘premises’ involved. In the case of a taxi ride, the ‘spot’ will normally be at the agreed destination but, if D refuses to pay at that point and the taxi driver sets off for a police station, D commits the offence if he gets out and runs off on route (Aziz [1993] Crim LR 708, CA). Without having paid as required or expected P must require payment on the spot. If the victim has agreed to postpone payment, even as a result of being duped by D’s dishonest deception, he no longer requires or expects payment ‘on the spot’. D cannot therefore commit the offence when he leaves without paying (Vincent [2001] Crim LR 488, CA). In addition the ‘on the spot’ payment must in fact be legally due. In Troughton v Metropolitan Police [1987] Crim LR 138, DC, D, who had had a lot to drink, took a taxi home to Highbury. The driver had difficulty getting the precise address and D accused him of deliberately going a long way round. The driver then drove to a police station. The court held that no payment was due because the driver had broken the
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contract by not carrying D to the agreed destination. There could therefore be no question of a s. 3 conviction. Goods supplied or service done The offence requires goods actually to be supplied or the service actually to be done. Goods will be supplied only where they come into D’s hands with the express or implied consent of the ‘supplier’. Similarly, ‘service done’ means a service given at the express or implied invitation of P, e.g. knowing provision of a hotel room for D, giving D a taxi ride. Mens rea D must (a) act dishonestly (b) know that payment on the spot is required or expected from him and (c) intend to avoid payment of the amount due. D need only be dishonest at the time of ‘making off’. If he believed that payment was not due because, for example, the food supplied in the restaurant was inedible, he would not be dishonest. D must know payment on the spot is required. If D believes that the goods were offered on credit and that he would be invoiced for them or that someone else has paid or has agreed to pay for them, he would not be guilty. According to the House of Lords in Allen [1985] 2 All ER 641 intent to avoid payment means an intent never to pay. At the time of the making off, D must intend to make permanent default. 6. CRIMINAL DAMAGE

TEXT BOOK ACTIVITY

Please read the offences create by the Criminal Damage Act in Criminal Law – The Fundamentals.

6.1

Basic criminal damage

Actus reus The actus reus comprises four elements: (a) destroys or damages (b) any property (c) belonging to another (d) without lawful excuse. (a) Destroys or damages ‘Destroy’ admits of no half-measures and according to Barnet London Borough Council v Eastern Electricity Board [1973] 2 All ER 319, DC it requires ‘at least elements of finality and totality . . . and must . . . go further than merely material change’. ‘Damage’ is a much more fluid concept and is dependent on the circumstances. It does not matter whether it is temporary or permanent. It involves some physical harm to or impairment of the value or utility of the property.
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TEXT BOOK ACTIVITY

Please continue your reading of Criminal Law- The Fundamentals at point a) ‘Damage’ and answer the following questions. What may be taken into consideration when deciding whether property has been damaged? Please give some examples of how property may be deemed damaged when the damage may be easily remedied. How does the nature of the property effect the estimation of damage?

(b) Property Property is defined at section 10 of the Act.

TEXT BOOK ACTIVITY

Please read the discussion of property in Criminal Law – The Fundamentals. What ‘items’ are included within the definition of property? What ‘items’ are excluded?

(c) Belonging to another As with theft, property may be construed as belonging to another when that person has possession or control, a propriety right or interest or a charge upon it. Mens rea D must either intend to destroy or damage property belonging to another or be reckless thereto. Intention bears its usual meaning and applies to the ‘belonging to another’ requirement as well as the causing of the damage. In other words, D must aim to damage the property knowing or believing that the property belonged to another. Thus, in Smith [1974] 1 All ER 632 the Court of Appeal held that D’s mistaken belief that boarding and wiring which he had himself installed as a tenant of P’s premises, meant that he did not have the mens rea for s. 1(1). He had made a mistake as to the civil law of property because the boarding damaged became the landlord’s property once it was affixed to the property. There is no need to prove intention where the alternative mens rea of recklessness is charged, as will almost invariably be the case.
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ACTIVITY

What does ‘reckless’ mean? If you cannot remember please re-read the discussion of recklessness with reference to the case of G [2003] UKHL 50.

(d) Without lawful excuse This is addressed at the end of the discussion. 6.2 Aggravated criminal damage

Section 1(2) of the Criminal Damage Act 1971 provides: (2) A person who without lawful excuse destroys or damages any property, whether belonging to himself or another– (a) intending to destroy or damage any property or being reckless as to whether any property would be destroyed or damaged; and (b) intending by the destruction or damage to endanger the life of another or being reckless as to whether the life of another would be thereby endangered; shall be guilty of an offence. The offence is punishable by up to life imprisonment (s. 4).

ACTIVITY

What are the two main differences between this offence and basic criminal damage under s. 1(1)?

The present offence is essentially s. 1(1) criminal damage plus. The one ingredient of simple criminal damage which is missing from s. 1(2) is the need for the property to belong to another. The s. 1(2) offence can be committed equally by the destruction or damaging of D’s own property because of the risk to life aspect.

ACTIVITY

Does s. 1(2) require proof that someone’s life was in fact endangered by D’s acts of damage or destruction?

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Mens rea The major distinction between the two offences lies in the enhanced mens rea requirement for s. 1(2). Not only must the mens rea for basic criminal damage be proved – intention or recklessness as to damaging the property – but also the further intention or recklessness in respect of endangering life by the damage. It is no part of the actus reus that life should actually be endangered by the damage. It is purely a mens rea requirement. If D intended it or was reckless as to it, it is irrelevant that, as it turned out, the actual damage did not endanger life.This is fairly obvious because otherwise D might escape liability where he sets fire to a house thinking that it is occupied when it is not. The offence definition gives intention and recklessness as alternatives both in respect of the actus reus – the damaging of property – and the endangerment of life, which is not part of the actus reus. It is open to the prosecution to frame the charge using any combination of these states, but prudence would dictate that all of them are charged in the alternative, i.e. D intended or was reckless as to damaging the property and intended or was reckless as to thereby endangering another’s life. 6.3 Arson

Section 1(3) provides: An offence committed under this section by destroying or damaging property by fire shall be charged as arson. It follows that any offence under s. 1(1) or s. 1(2) where the damage is caused by fire constitutes arson and must be charged expressly as arson (Booth [1999] Crim LR 144, CA). Arson carries a maximum sentence of life imprisonment even if D commits only basic criminal damage without any intention or recklessness as to the endangering of life (s. 4). Apart from the extra ‘by fire’ requirement, the ingredients are exactly the same as for the relevant offence under s. 1(1) or (2). Indeed, several of the cases we have already discussed are arson cases. It would appear that the mens rea is slightly more precise in that D would have to intend to damage by fire or be reckless thereto.

ACTIVITY

If D falls asleep whilst smoking in bed and accidentally sets fire to his mattress and upon discovering the smouldering mattress, does nothing and goes out, does he commit arson? (see the case of Miller discussed at chapter 2) If D knew there were other occupants in the house, would he also commit an offence under s. 1(2)?

The principle from Miller would apply to convict D under s. 1(2) provided, as seems to be the case, that he was reckless as to the endangering of another’s life by the fire damage when he did nothing and walked out.

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Without lawful excuse Let’s return to the essential element of ‘without a lawful excuse’. Firstly, there are many instances where D would have a lawful excuse for damaging P’s property. For example, police executing a lawful search warrant may have to smash down a door to gain entry. Equally, it might be said that D would have a lawful excuse if he can use any of the normal defences to criminal liability, such as self-defence or duress. Thus, if D throws P’s china ornament at P in reasonable self-defence, the damage would be with lawful excuse. In addition to such undefined ‘lawful excuses’ which are to be gleaned from the general law, s. 5 expressly adds two more which might not otherwise amount to ‘lawful excuse’. This extended meaning of ‘lawful excuse’ does not apply to the aggravated offence under s. 1(2) because that involves the risk of endangerment of life.

TEXT BOOK ACTIVITY

Read s. 5(1)–(3) in Criminal Law - The Fundamentals. Identify what constitutes the ‘lawful excuse’ in each case. Indicate what, if anything, they have in common. Does any relevant belief have to be reasonable?

Belief in consent Section 5(2)(a) provides D need only ‘believe’ that the owner has or would have consented to the destruction or damage with full knowledge of the circumstances. It is not necessary to show that the owner has in fact or would in fact have consented (although, as a matter of evidence, this will help to give credence to D’s claim to have held the belief). Thus, it does not matter whether D was correct in his belief or mistaken. If mistaken, it is immaterial whether the mistake was reasonable or unreasonable because s. 5(3) expressly provides that the belief does not have to be ‘justified’ as long as it is ‘honestly held’. If D has the relevant belief, he has a ‘lawful excuse’ even though he is damaging the property for a dishonest purpose. In Denton [1982] 1 All ER 65, CA, D set fire to his employer’s mill because his employer had asked him to do so to enable him to make a fraudulent insurance claim. Because he believed (correctly) that the owner had consented to the damage, he had a lawful excuse under s. 5(2)(a) and the prosecution could not therefore prove an essential ingredient of the crime. Both D and the owner could have been convicted of conspiracy to defraud. This section also allows for an exception to the intoxication rules we address at the following chapter, as an unreasonable mistaken belief even if due to voluntary intoxication still provides a ‘lawful excuse’. In Jaggard v Dickinson [1980] 3 All ER 716, D lived in a house belonging to P. D came home drunk one night and went to the wrong house by mistake. Finding it locked, she broke windows to get in. The court held that she had a ‘lawful excuse’ because she genuinely believed (a) that P was ‘entitled to consent’ to the damage (because
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of her mistake that it was P’s house) and (b) that P would have consented to her damaging the house to get in, had she known of the circumstances. Section 5(2)(a) did not exclude beliefs due to intoxication from its scope and the court refused to read in a general implied restriction from the general law on intoxication. It may be worth referring back to this point after your reading of intoxication. Protection of other property Essentially, s. 5(2)(b) exempts D in a very particular type of necessity situation in which a much more lenient test of necessity is prescribed than applies in the general defence of necessity (or duress of circumstances) or even self-defence. The three requirements are (a) D damages the property ‘in order to protect property belonging to himself or another’ (Hunt (1977) 66 Cr App R 105 CA, Hill (1988) 89 Cr App R 74, CA) (b) believing that it is ‘in immediate need of protection’ (Johnson v DPP [1994] Crim LR 673, DC) and (c) believing that ‘the means of protection adopted or proposed to be adopted were or would be reasonable having regard to all the circumstances’.

ACTIVITY

Please consolidate your knowledge of criminal damage by reading the discussion of the offence in Criminal Law – The Fundamentals.

On your syllabus criminal damage becomes an important offence when the defences are considered, as it can be expressed as either a basic intent offence or a specific intent offence. You may then need to return to this section to refresh your understanding when you address defences, specifically the defence of intoxication and the Caldwell case.

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Topics to be studied: • General defences

1.

OBJECTIVES

By the end of this chapter you should be able to: • Define the requirements for the defence of insanity with particular reference to the concept of ‘disease of mind’ and identify the shortcomings of the legal definition of insanity; Explain the meaning of automatism and the difference between insane and noninsane automatism; Distinguish between offences of specific intent and offences of basic intent; Define self-induced automatism and state how it affects criminal liability; State the basic rules governing the effect of voluntary intoxication and involuntary intoxication; Appreciate the significance of the relationship between mistake and mens rea; Explain when mistake needs to be reasonable to affect liability; State the basic conditions for the applicability of the statutory and common law defences of self-defence and prevention of crime and explain the concept of ‘reasonable force’; Analyse how mistake affects self-defence; Distinguish between circumstances; traditional duress by threats, necessity and duress of

• • • • • • •

• • •

Describe the conditions required for a successful defence of duress (a) by threats and (b) of circumstances.

2. • • •

ESSENTIAL READING This study guide. McAlhone and Huxley-Binns, Criminal Law – The Fundamentals, 2007, Sweet and Maxwell, Chapter Twelve and Chapter Thirteen.. Clarkson and Keating, Criminal Law – Text and Materials, 6th Edition, 2007, Sweet and Maxwell, Chapter Three.

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3.

INTRODUCTION AND OVERVIEW OF GENERAL DEFENCES

The defences we address here form a motley collection that cover vastly different circumstances and operate in quite disparate ways. Attempts to group them into themes have been numerous but always flawed in some way or other. For example, although usually regarded as defences, automatism, intoxication and mistake are not truly defences at all. Rather they amount to a claim by the accused that the prosecution is unable to prove the ingredients (usually the necessary mens rea) i.e., the positive fault elements of the crime charged. A common way of categorising defences is into those which are elements of the offence, those which are either justificatory or excusatory. The distinction between justificatory excusatory defences, in very basic terms, is that a defence which is justificatory is where D’s conduct is approved by society in general, but an excusatory defence is without such approval, but where punishment is not considered to be appropriate. Let’s move on to look at these defences. 4. AGE AND CRIMINAL RESPONSIBILITY and and one one

The law continues to recognise that children’s immaturity may impair their understanding of right and wrong so that it would be unjust to hold them criminally responsible in the same way as an adult. Thus the age of 10 years is set below which no criminal responsibility can attach. The law conclusively presumes that children under 10 years of age are incapable of committing a crime and, therefore, whatever they have done, it is impossible to convict them of any crime (s. 50 of the Children and Young Persons Act 1933, as amended). Until 1998, there was a rebuttable presumption that children of 10 years and over but under the age of 14 were incapable of committing any crime (‘doli incapax’). The presumption could be rebutted only by proof that the child understood that his act was seriously wrong (the act - not the consequences of that act). This provided an addition hurdle for the prosecution as they had to prove not only that D performed the actus reus of the crime charged with any requisite mens rea but also that he appreciated that his conduct was seriously wrong. The legislature abolished this presumption by way of s.34 of the Crime and Disorder Act 1998. Thus children over the age of 10 are considered doli capax and treated in exactly the same way as adults in terms of criminal liability. 5. INSANITY

Here we will be dealing with the question of whether D was insane at the time of the commission of the alleged crime. However, insanity whilst the accused is in detention for the alleged crime or at the time of the trial can also affect his liability and result in the trial not being held because D is unfit to stand trial. Since these issues are concerned with procedure rather than the substantive law, they are outside the scope of this text. The utility of the defence While the media may find insanity pleas attractive the coverage the defence receives has been misleading. In reality it has not been a popular defence due to difficulty in successfully pleading the defence and the sentencing provision attached to a finding of ‘not guilty by reason of insanity’. Prior to 1991 on reaching such a verdict the court had to order the accused to be detained indefinitely in a secure mental hospital. The Criminal Procedure (Insanity) and Unfitness to Plead Act 1991 Act now gives the judge a more realistic range of sentencing options; ranging from an absolute discharge, a guardianship order or a supervision and treatment order but still extending to include compulsory, indefinite
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detention in a secure mental hospital. However, under the Domestic Violence, Crime and Victims Act 2004, the court may only impose such an indefinite period of detention (even for murder) if there is medical evidence which justifies detention in hospital i.e. evidence that the defendant suffers from a mental disorder which requires specialist treatment. Despite these recent sentencing reforms, an acquittal on grounds of automatism (which we will go on to address) is still preferable to a finding of not guilty by reason of insanity. The other major change made by the 1991 Act is to prohibit a finding of insanity unless supported by the written or oral testimony of at least two registered medical practitioners, of whom at least one is approved by the Home Secretary as having special experience in the field of mental disorder (s. 1). Does the defence negate the actus reus or mens rea of the offence? For a verdict of insanity to be possible, the prosecution must establish that D ‘did the act or made the omission charged’ i.e. performed the actus reus of the offence alleged (s.2(1) of the Trial of Lunatics Act 1883 as amended). Failure to prove the actus reus would mean a complete acquittal. However, there is no need to prove the mens rea for the offence charged (Attorney-General’s Reference (No 3 of 1998) [1999] 3 All ER 40, CA approved by the House of Lords in Antoine [2000] 2 All ER 208). It is evident that an insane person may or may not have the mens rea for the crime charged. Once insanity is accepted, the mens rea for the offence charged ceases to be relevant. The overlap between insanity and diminished responsibility Diminished responsibility is often referred to as ‘partial insanity’. Many of the states of mind we discussed under diminished responsibility could also fall under insanity. However please remember that diminished responsibility is ONLY a defence to murder; insanity is a general defence. The introduction of the defence of diminished responsibility to the crime of murder in 1957, with its vastly more attractive sentencing options, had a dramatic effect in reducing the number of insanity pleas. We should point out that, if the defendant pleads diminished responsibility, it is open to the prosecution to allege that the defendant was legally insane. The same is true where the defendant alleges that he was in a state of automatism when he committed the alleged crime.

CASE BOOK ACTIVITY

Please read the introduction to insanity and the commentary by Abraham Goldstein in Criminal Law - Text and Materials.

5.1

How do we define legal insanity?

Please note that the legal notion of insanity does not correspond with the medical notion of insanity. Legal insanity is a great deal narrower than medical insanity because if D understands one of two simple things – (a) the physical nature of his action and its consequences or (b) that it is against the law, he cannot be found insane, no matter how ‘mad’ doctors would regard him. As one physician pointed out in 1843 ‘He [the defendant]

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may consider himself the King of England, a tub of butter or a pane of glass and be viewed responsible for his conduct’. On the other hand, the legal notion of ‘disease of mind’ is far wider than psychiatrists would accept, as we shall go on to address.

ACTIVITY

Read the very brief extract from M’Naghten’s Case in Text and Materials. What are the elements of the defence?

Insanity is a common law defence and the basic definition is still that laid down in the M‘Naghten Rules. D must prove on the balance of probabilities that he was suffering from a defect of reason arising from a disease of the mind with the result that either he did not know the nature and quality of his act, or he did not realise that his actions were wrong. There are four elements here and each of them needs further explanation. (a) Disease of the mind The courts have taken a wide view of what constitutes a disease of the mind and their major policy concern has been to ensure that people who have shown themselves to be dangerous to the public should be detained until the authorities are satisfied that the public’s safety is not in jeopardy. It is likely therefore that any internal bodily disorder which affects the functioning of the brain and has resulted in violence which might recur will be held to be a disease of the mind (see Lord Denning in Bratty v Attorney-General for Northern Ireland [1963] AC 386, HL), although the absence of a danger of recurrence does not preclude a finding of ‘disease of mind’ (Burgess).

ACTIVITY

How can a disease that occurs outside the brain amount to a disease of the mind? If you cannot answer this question please refer to the commentary following the extract from M’Naghten’s Case. Read the extract from Lord Diplock’s speech in Sullivan [1983] 2 All ER 673, HL in Text and Materials. What is the definition of: (a) (b) mind, and disease of mind?

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You will see that the distinction between an internal and an external cause of the disease is vital to the decision on whether or not D has a disease of mind. What this means is that the availability of the defence is dependent upon its cause as well as its effect. For example, in Quick, the defendant nurse was convicted of assault occasioning actual bodily harm on a patient. He had claimed the defence of non-insane automatism on the basis that, at the time of the alleged assault, he was suffering from hypoglycaemia and was not aware of what he was doing. Hypoglycaemia is a deficiency of blood-sugar caused by the use of insulin prescribed by the defendant’s doctor to counteract the diabetes from which he suffered. The defendant had withdrawn his defence and changed his plea to guilty when the trial judge ruled that his defence amounted to insanity. The Court of Appeal quashed the conviction on the ground that the defendant’s condition was caused by an external factor, i.e. the injection of insulin, which did not constitute a disease of the mind. This condition was only transitory in the sense that it would not recur unless the external stimulus was reintroduced. Ironically, a diabetic may act unconsciously in a similar fashion through failing to take insulin. This can lead to a condition known as hyperglycaemia caused by an excess of bloodsugar and in this case the courts would regard the condition as constituting insanity. This was confirmed recently by the Court of Appeal in Hennessy [1989] 2 All ER 9.

CASE BOOK ACTIVITY

Please read R v Burgess [1991] 2 All ER 769, CA and the commentary that follows in Text and Materials and answer the following questions. • • • What is the factor which led the Court of Appeal in Hennessy to distinguish Quick? Do you think it makes sense to classify Hennessy as insane and Quick as not? How would you class someone who was violent whilst sleep-walking?

As we have stated, the distinction between an internal and an external cause of the disease is vital to the decision on whether or not D has a disease of mind.

ACTIVITY

Write down any examples you can think of which would constitute external factors negating a ‘disease of the mind’.

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You might have suggested a blow on the head causing temporary concussion, anaesthetics, drugs such as LSD, alcohol or hypnotic influences (see T [1990] Crim LR 256 for a more controversial example.) Where a dissociative state is caused by a ‘psychological blow’ resulting from ‘the ordinary stresses and disappointments of life’ (as opposed to the event in T), it cannot be said to be due to an external factor. The real cause is D’s own abnormal ‘psychological or emotional make-up’ and this is an internal factor constituting ‘disease of mind’. The Court of Appeal in Quick said that the external factor must be of transitory effect to avoid a finding of insanity.

ACTIVITY

Can you say what is the significance of the requirement that the effect be ‘transitory’?

Let us consider a case where D is concussed by a blow on the head. This would be an external factor and if D commits the alleged crime whilst so concussed, this would be noninsane automatism. However, if the blow on the head had caused permanent brain damage so that D might have further attacks spontaneously without the re-introduction of any external stimulus, what started out as an external factor, would have become an internal bodily disorder and would constitute a disease of the mind and therefore insanity. (b) Defect of reason

ACTIVITY

From your reading of the commentary upon Burgess how impaired must a defendants reasoning be for an insanity plea to succeed? Please pay particular attention to the case of Clarke [1972] 1 All E.R. 219.

(c) Not knowing the nature and quality or not knowing his act was wrong. If D is suffering from a defect of reason due to a disease of the mind, he will be insane if either he did not know the nature and quality of his act or if he did know this, he did not know it was wrong.

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TEXT BOOK ACTIVITY

Please read points c) ands d) in Criminal Law The Fundamentals and answer the following questions How has the word wrong been interpreted? Can you suggest a broader meaning for ‘wrong’ which may be more appropriate for someone suffering from a disease of the mind?

As you have read ‘wrong’ has been given a very narrow interpretation. Even if the accused, because of his disease of the mind, is convinced of the moral correctness of his actions, if he knows that what he is doing is against the law, he would not be legally insane. This can work particularly harshly and exclude from the defence people who, on any common sense view, are mad. For example, where D believes he is acting on the instructions of God the uncompromising response of Stephen J in the nineteenth century was that in such a case, he would certainly hang a defendant who killed under orders from God, unless he received an order from God not to (The Guardian, 25 March 1982). The current attitude of the courts would not be dissimilar, as is illustrated by the Court of Appeal’s decision in Bell [1984] 3 All ER 842. The defendant was convicted of reckless driving, having used his van as a battering ram to drive through the entrance gates of a Butlins Holiday Camp. He told the police, ‘It was like a secret society in there. I wanted to do my bit against it’. The Court of Appeal in dismissing his appeal held that the fact that he believed himself to be driven by God did not provide any excuse; he knew what he was doing and he knew it was against the law. His perception that he was morally right was irrelevant. 5.2 Burden of proof

ACTIVITY

Who proves insanity? Tick the statement which is correct: The prosecution must prove D is sane The defence must prove D is insane For the answer to this question and in order to consolidate your knowledge of this defence please read Criminal Law - The Fundamentals ‘Insanity’.

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5.3

Reform

It will be evident that the present definition of insanity is out of touch with modern thinking on mental disorder and has attracted constant criticism.

CASE BOOK ACTIVITY

Please read point c) Proposals for reform and point d) Should the insanity defence be retained? In Criminal Law - Text and Materials and makes notes supporting and critiquing the defence of insanity.

5.4

Final Point

Students commonly become confused with the overlap between the defences of insanity and automatism (discussed below). A couple of problems arise; firstly, different textbooks use differing terminologies for these defences. Many refer to insanity as ‘insane automatism’ and automatism as ‘sane automatism’, please be aware that ‘insane automatism’ is the same defence as insanity, it is merely an alternative term. Secondly both defences (usually) allow a defence for a defendant who is acting unconsciously – the important difference is that insanity arises from an internal cause and automatism from an external cause.

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Insanity flow chart Did D lack the capacity to reason normally (i.e. have a defect of reason)?

No D is not insane

Yes Was this due to a disease of mind?

Yes No D is not insane
Did D appreciate the physical nature and quality of his act?

Yes No D is insane
Did D realise his act was legally wrong?

No D is insane

Yes D is not insane

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6.

AUTOMATISM

In the introduction to actus reus you may remember we discussed that the actus reus of an offence must be performed by the muscles of the D while under the control of the conscious mind. The defence of automatism operates where; a) the defendant is acting unconsciously (i.e. the prosecution is unable to prove D’s muscles are under the control of his conscious mind) and b) such arises from an external cause. (a) Total loss of control For the defence of automatism to be successful the act must be done by D’s muscles but they are not, at the time, under the control or direction of his conscious mind, examples of which include; • • • • • • Concussion Hypoglycaemic coma (Quick [1973] 3 All ER 347, CA) Blackouts (Kemp [1957] 1 QB 399; Sullivan [1983] 2 All ER 673, HL). Sleep-walking or during nightmares (Bratty v Attorney-General for Northern Ireland; Lillienfield, The Times, 17 October 1985). Attack by a swarm of bees (Hill v Baxter [1958] 1 QB 277). Sudden brake failure (Burns v Bidder [1966] 3 All ER 29).

In Broome v Perkins [1987] Crim LR 272 the Divisional Court stressed that to succeed with automatism, D had to have lost all control and the plea would fail if he retained what it termed ‘partial control’. This decision was relied on and endorsed by the Court of Appeal in Attorney-General’s Reference (No. 2 of 1992) [1993] 4 All ER 683 where D drove his lorry into a broken down vehicle on the motorway hard shoulder. He claimed automatism through a condition known as ‘driving without awareness’. However, because D retained some, albeit impaired or reduced, control and there had not been total destruction of voluntary control, his plea of automatism was rejected.

ACTIVITY

• •

There are other cases where D would be regarded as an automaton even though he is fully conscious. Can you write down an example? If D shoots someone, do you think he would be an automaton in either of the following situations: – D, is acting under an irresistible impulse as a result of a psychopathic disorder. – X is holding a loaded gun to D’s head threatening to kill D unless D shoots the victim?

Apart from cases where D is unconscious, automatism includes reflex actions or spasmodic or convulsive acts (Bratty v Attorney-General for Northern Ireland). The term ‘automatism’ certainly does not cover cases where D acts under an ‘irresistible impulse’ (e.g. as a result of a psychopathic disorder) or duress, although these may constitute other defences.

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Aside from ‘automatic’ actions, where D’s muscles, albeit without direction of the conscious mind, are causing the actions, D’s ‘acts’ will be classed as involuntary in only very limited circumstances. For example, if D is holding a knife and is held by a more powerful man who forces D to stab the victim, D would be acquitted of any offence. Or (according to Bell [1984] 3 All ER 842) where a motorist is suddenly deprived of control over his vehicle by a sudden blowout or unforeseen brake failure. However, there is no room here for a wider concept of moral involuntariness – that would open the door to all sorts of considerations of the individual’s background and motivation, and the social context of his actions, which the law’s generally uncompromising emphasis on individual responsibility seeks to avoid. (b) External Cause

ACTIVITY

Do you remember from our discussion on insanity when automatism will be classed as insane automatism (insanity)?

For automatism to succeed the cause of the total loss of control must be external, be it the taking of non-dangerous drugs (such as Valium) or the result of a knock on the head. Once these two elements have been established the next question that should always be asked is whether the offence committed is one of specific or basic intent as automatism is always a defence to crimes requiring proof of ‘specific intent’ for a conviction. For all other offences (known as basic intent offences) the defence could well be lost if the automatism was ‘self-induced’. 6.1 How does the defence operate?

Crimes of specific intent As automatism is always a defence to crimes requiring proof of ‘specific intent’ the crucial question to be answered, therefore, is what constitutes an offence of specific intent. As we shall see, this question is also critical in considering the defence of intoxication and most of the textbooks discuss it under that head. We have then 2 terms to decipher: specific intent and basic intent. To do so, you must acknowledge first that the distinction between specific and basic intent is judge-made; it lacks logic, there is inconsistency, but it is a useful means to an end. Our starting point is the definition given by Lord Simon in DPP v Morgan [1975] 2 All ER 347 who defined a specific intent crime as one where the mens rea ‘goes beyond the contemplation of the actus reus’ whereas the mens rea of a basic intent crime ‘corresponds exactly’ to the actus reus of the crime.

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ACTIVITY

Using Lord Simon’s definitions in Morgan, tick those of the following crimes which would be specific intent crimes: • • • battery s. 18 of the Offences Against the Person Act 1861; murder.

The actus reus of battery is an application of unlawful force to the victim. The mens rea is intention or subjective recklessness as to the application of such force. It is therefore a basic intent crime. On the other hand, s. 18 of the Offences Against the Person Act 1861 is a crime of specific intent because not only must D have mens rea in relation to the actus reus of the ‘wounding’ but he also needs a further or ulterior intention to do grievous bodily harm. The mens rea goes beyond what is needed for the actus reus. The difficulty with this definition is that it does not accord with the case law. For example, murder has been held time and again to be an offence of specific intent. Yet the mens rea needed – an intention to kill – ‘corresponds exactly’ with the actus reus – killing. A similar argument may be applied to a s. 18 of the OAPA 1861 charge based on ‘causing grievous bodily harm with intent to do grievous bodily harm’.

TEXT BOOK ACTIVITY

Please read the commentary upon specific and basic intent in Text and Materials (located at point E. voluntary intoxication). How did Lord Simon modify his stance in DPP v Majewski [1976] 2 All ER 142, HL? Returning to the defence of automatism, please remind yourself of why is it important to assess whether an offence is one of specific or basic intent? If you cannot answer this question please return to the beginning of the ‘specific intent’ passage in the guidance text.

Crimes of basic intent If the offence committed is one of basic intent D has a complete defence if the automatism was not self induced (i.e. where D crashed his car after being knocked unconscious by a stone thrown through the window whilst he was driving or taking non-dangerous drugs in accordance with medical advice.) If automatism was self induced the rules are more complicated and mean that D may often be convicted even though he was in a state of noninsane automatism.

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Crimes of basic intent and self-induced automatism A distinction that must be made in cases of self-induced automatism is whether the state was brought on by dangerous or non-dangerous drugs. A ‘dangerous’ drug is one commonly perceived to be ‘liable to cause unpredictability or aggressiveness’ such as LSD, Ecstasy and crack (Hardie [1984] 3 All ER 848, CA). If the state is caused by a dangerous drug the rules you must turn to are those governing intoxication (below). The intoxication rules do not apply to non-dangerous drugs such as sedative-type, tranquillising drugs (in Hardie, Valium in Bailey [1983] 1 WLR 760, Insulin), if the state of automatism is caused by a nondangerous drugs the rules outlined in Bailey are applicable.

TEXT BOOK ACTIVITY

Read the discussion regarding self-induced automatism in Criminal Law – The Fundamentals. Is the defence of automatism available if D voluntarily ingests a dangerous drug? If no, what other defence may be available? Can self induced automatism be a defence to a specific intent offence? For crimes of basic intent, in the leading case of Bailey [1983] 1 WLR 760 what did the court hold had to be foreseen by D for the defence to fail? This principle is VERY important please make a note of it below.

Finally, it should be noted that sometimes an offence may be committed before the onset of automatism. For example, a defendant who falls asleep whilst driving will have committed the offence of careless driving prior to falling asleep because he would be negligent in not stopping to drive when he felt tired before he nodded off (Kay v Butterworth (1947) 173 LT 191; Moses v Winder [1980] Crim LR 232). The prosecution can prove the actus reus and the necessary fault element without recourse to what happened whilst D was in the automatic state. 6.2 Reform

TEXT BOOK ACTIVITY

Please read the discussion of reform in Criminal Law – The Fundamentals.

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Flow chart on automatism When you are addressing the defence of automatism don’t forget to define automatism first; but then use the flowchart to find the effect of the defence according to the charge:

Is the automatism due to disease of mind?

Yes. Therefore insane automatism. D is not guilty by reason of insanity.

No. Therefore non-insane automatism. Is it a crime of specific intent?

Yes. D is not guilty because he lacks the specific intent.

No. Is the automatism self-induced?

No. D is not guilty.

Yes. Is it due to voluntary intoxication by alcohol or a ‘dangerous’ drug?

Yes. D is guilty of the basic intent crime.

No. (E.g. non-dangerous drug.) Was D aware that his action might make him ‘aggressive, unpredictable or uncontrolled’?

Yes. D is guilty of the basic intent crime.

No. D is not guilty of the crime.

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7.

INTOXICATION

TEXT BOOK ACTIVITY

Please read Criminal Law – The Fundamentals from the ‘Introduction’ to voluntary intoxication up to (but not including) ‘Distinguishing specific intent crimes from those of basic intent’ and ensure you understand; What we mean by voluntary intoxication. The limited circumstances in which voluntary intoxication may be a defence. The importance of addressing whether the offence charged is one of basic or specific intent. The policy justifications for the rules expressed in DPP v Majewski [1976] 2 All ER 142, HL.

Before we move onto to the rules governing intoxication lets readdress how we distinguish a specific intent offence from a basic intent offence.

ACTIVITY

Please read R v Caldwell [1982] A.C 341 and R v Heard [2007] EWCA Crim 125 to refresh your knowledge of the distinction between specific and basic intent offences.

In summary, the hallmark of a specific intent crime is that it ‘requires proof of a purposive element’ (Lord Simon in DPP v Majewski). This seems to mean an offence where intention and intention alone suffices for a conviction. The House of Lords in Caldwell [1981] 1 All ER 961 was certainly of the view that Majewski decided that self-induced intoxication can never be a defence to a crime which, as charged, is satisfied by proof of mere recklessness (whether subjective or objective), or less. This rule in Caldwell has curious consequences. Under s. 1(2) of the Criminal Damage Act 1971 it is an offence intentionally or recklessly to damage or destroy property with intent to endanger life or being reckless thereto. Before Caldwell, this was universally regarded as a crime of specific intent because mens rea was required as to a matter going beyond the actus reus – what Lord Simon defined as ‘ulterior intent’. It contrasted with ordinary criminal damage under s. 1(1) which required only mens rea in relation to the actus reus, namely intentionally or recklessly damaging another’s property.

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ACTIVITY

Since Caldwell, why is how the prosecution frames its charges so crucial?

According to Caldwell, whether voluntary intoxication is available as a defence to a charge under s. 1(2) depends not on whether the offence is one of specific or basic intent but on how the prosecution frames its charge. If it charges D with intentionally damaging property with intent to endanger life, then the defence of intoxication is potentially available. On the other hand if the charge is framed in terms of the alternative mens rea, namely, recklessly damaging property being reckless as to the endangering of life, then self-induced intoxication cannot be a defence.

ACTIVITY

By this point you will understand that not only is it integral to distinguish a specific intent offence from a basic intent offence but that the courts have struggled to give clear meaning to these terms. Before we move onto the intoxication rules please ensure you understand how these terms have been defined in the following cases; DPP v Morgan [1975] 2 All ER 347

DPP v Majewski [1976] 2 All ER 142, HL

R v Caldwell [1982] A.C 341

R v Heard [2007] EWCA Crim 125

7.1

The rule for voluntary intoxication and specific intent crimes

As we have seen whenever the intoxication actually prevents D having the mens rea necessary for the specific intent crime, D must be acquitted of that crime. You should be aware that the intoxication does not have to render D incapable of forming the necessary mens rea. The question is simply: has he or has he not formed that mens rea (Pordage [1975] Crim LR 575; Sheehan [1975] 1 WLR 739, CA). We should emphasise that if D does in fact have the necessary mens rea, his intoxication will be irrelevant to liability. The fact that he would not have committed the crime had he been sober has no effect on liability.

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One exception to the first mentioned rule is the so-called ‘Dutch courage’ situation. Here, if D forms the necessary intention before he gets himself intoxicated, using the intoxicant to give himself Dutch courage, he will be guilty of the offence if he performs the actus reus, notwithstanding that at the moment of such performance he did not have the appropriate mens rea because of the intoxication (Attorney-General for Northern Ireland v Gallagher [1963] AC 349, HL). Offences which the courts have decided are specific intent offences include murder, s. 18 of the OAPA 1861, attempt, theft, robbery and burglary. We noted above that with the offences of violence, there are less serious, basic intent crimes, i.e manslaughter, s. 20 of the OAPA 1861 or s. 47 of that Act, waiting as a safety net to catch people acquitted of a specific intent charge. However, the same is not true of the property offences where there may be no lesser offence available if D is acquitted of the specific intent offence.

ACTIVITY

D is charged with murder and his defence is voluntary intoxication. Remind yourself of the rules which apply.

The first thing to notice is that D has been charged with a crime of specific intent. The second thing you will have to find out is whether D formed mens rea or not. If he did, he is guilty. If he did not, he is not guilty of murder, but will be convicted of manslaughter. 7.2 The rule for basic intent crimes

Voluntary intoxication is no defence to a crime of basic intent even if it prevents D having the mens rea as long as D would have had the requisite mens rea (foresight) had he been sober. According to Majewski, there is ‘a substantive rule of law that in crimes of basic intent the factor of intoxication is irrelevant’. This means that where D claims that he did not have the necessary mens rea for the offence due to intoxication, the law says that no such mens rea need be proved. Therefore, it is positively detrimental to D to claim the defence of intoxication in a crime of basic intent because it immediately relieves the prosecution of the necessity to prove that D had the mens rea normally required. No mens rea need be proved where its absence is due to D’s intoxication.

ACTIVITY

What does s. 8 Criminal Justice Act 1967 provide? Can you explain the apparent conflict between the Majewski rules on basic intent crimes and s. 8? Can you reconcile the conflict?

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You may remember that s. 8 states that wherever it is necessary to prove intention or foresight on the part of D, the court must satisfy itself that D actually had the prescribed intention or foresight by looking at ‘all the evidence’ which, since it is not excluded by the section, presumably includes evidence of intoxication. It would appear, therefore, that if the offence requires proof of some intention or foresight on the part of D and he has not got it because of intoxication, s. 8 should ensure his acquittal of the offence (irrespective of whether the offence is specific intent or basic intent.) However, s. 8 is only a rule of evidence and instructs the court how intention or foresight must be proved if and when the substantive definition of the offence requires it. If, therefore, the offence does not require proof of any intention or foresight, then s. 8 has no application – it never comes into play. In order to square this circle and to avoid the application of s. 8, the House of Lords in Majewski has, in effect, redefined at a stroke all basic intent offences so as not to require proof of any intention or foresight where its absence is due to D’s intoxication, even though, whenever D is not intoxicated, intention or foresight is required! Judicial sleight of hand!

CASE BOOK ACTIVITY

Please read Criminal Law – Text and Materials R v Fotheringham (1989) Cr.App.R.206 and the commentary that follows for a discussion of the justifications underpinning the principle that voluntary intoxication is no defence to a crime of basic intent.

7.3

Intoxication and defences

The issue of intoxication here arises in relation to defences where D, due to his intoxicated state, makes a mistake about the situation, which if true would give him a defence to the crime. a) Justificatory defences Actions performed in self-defence or in the prevention of crime are justified as long as only reasonable and necessary force is used. If D mistakenly believes he is being attacked or is preventing a crime, it does not matter that his mistake is unreasonable. His mistake prevents him from forming the necessary intention to apply unlawful force (Williams (1984) 78 Cr App R 276, CA; Beckford v R [1988] AC 130, PC). If that mistake is a drunken mistake, D would still lack the mens rea required for the crime and one would expect the normal principles governing voluntary intoxication to apply.

CASE BOOK ACTIVITY

Please read O’Grady [1987] 3 All ER 411 and the commentary that follows in Criminal Law – Text and Materials.

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It would appear that even if the offence charged is a specific intent offence like murder or s. 18, the drunken mistake has no effect on liability. Despite its inconsistency with general principle, O’Grady was followed by the Court of Appeal in O’Connor [1991] Crim LR 135. However, in both cases these statements appear to have been made obiter and it was always open to a future Court of Appeal to reassert the Majewski principle. This was hopefully to be expected, because it certainly appeared that Lord Lane CJ in O’Grady ignored the decisions in Kimber and Williams that the term ‘unlawful’ is a definitional element of the offence. He ‘moved from the definitional analysis to the defence analysis’ enabling him to disregard the relevance of whether the crime was one of specific or basic intent.

ACTIVITY

Please complete your reading of intoxication in your textbook and using your textbook and the Text and Materials please complete the following chart

Case

Basic facts

Legal Principles

Does this conflict with the Majewski principle?

O’Grady [1987] 3 All ER 411

O’Connor [1991] Crim LR 135

Richardson and Irwin [1999] 1 Cr App R 392, CA

Hatton [2005] EWCA Crim 2951

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b) Excusatory defences This will be addressed under the relevant sections; namely duress and provocation. (c) Intoxicated mistake which provides a lawful excuse under the Criminal Damage Act 1971

TEXT BOOK ACTIVITY

Please remind yourself of this principle by reading the above titled section in Criminal Law – The Fundamentals, paying particular attention to the case of Jaggard v Dickinson [1980] 3 All E.R. 716.

7.4

Involuntary intoxication

ACTIVITY

From your reading so far, what do you understand by the term involuntary intoxication?

The most obvious example is where D is unknowingly drugged or has his drinks spiked. However, it is also regarded as including some instances of self-administered drugs, namely, where drugs are taken strictly in accordance with medical advice. If the stated dose is exceeded or mixed with other drugs and/or alcohol against medical advice, the intoxication will be regarded as voluntary. According to Allen [1988] Crim LR 698, CA the intoxication is not involuntary where D knows he is drinking alcohol but mistakes its strength. If D is involuntarily intoxicated, he has a defence to any crime including those of basic intent, whenever his intoxication negatives the mens rea (Majewski). However, what if the involuntary intoxication does not prevent D having the mens rea for the crime charged?

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CASE BOOK ACTIVITY

Read the case of Kingston [1994] 3 All ER 353 in Text and Materials and the commentary that follows. On what ground(s) did the Court of Appeal allow Kingston’s appeal? Be specific please. Why and how was the decision of the Court of Appeal so heavily criticised? (Your answer should refer to both the academic criticisms and those made at the House). What is the ratio decidendi of the case?

The House rejected the argument that there was or should be created a new defence excusing liability for ‘crimes’ committed whilst involuntarily intoxicated. The House’s firm view was that there was no distinct defence of involuntary intoxication. In terms of criminal liability, involuntary intoxication had to be ignored unless it prevented D forming the required mens rea, or brought on a state of insanity or automatism at the time of the prohibited acts. It was certainly insufficient that it merely loosened or destroyed D’s inhibitions causing him to commit the offence. 7.5 Reform

The Law Commission has published a comprehensive document addressing the defence of intoxication (Intoxication and Criminal Liability LAW COM 314 Jan 2009). In this document the Commission address issues we have raised in this chapter, namely the difficulties in labelling an offence one of basic or specific intention and the consequent lack of clarity in the law. You may find the report useful for revision purposes. 8. MISTAKE

You will find that there are a number of activities and case book/text book reading exercises in this section. Mistake is a topic which has always confused students of the criminal law and this is due, in no small measure, to the fact that the courts have struggled to establish and apply consistent principles. Consequently it is integral that you perform all the directed reading and attempt all the activities to fully understand this topic.

TEXT BOOK ACTIVITY

Please read the Introduction to mistake in Criminal Law - The Fundamentals. Will a mistake as to the criminal law excuse the defendant?

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8.1

Mistakes which negate the mens rea

TEXT BOOK ACTIVITY

Please read Criminal Law – The Fundamentals ‘Mistakes which negate the mens rea’ and complete the following chart.

Mistakes which negate the mens rea

Basic principle

Case examples and dicta

Mistake as to the Civil Law

Mistake of Fact

Ignorance or mistake as to the law is generally no defence, except where the mistake is as to the civil law and it prevents D having the mens rea necessary for the crime (Smith [1974] 1 All ER 632, CA).

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8.2

Mistakes which do not negate the mens rea

TEXT BOOK ACTIVITY

Please read Criminal Law – The Fundamentals and ‘Mistakes which do not negate the mens rea’

These forms of mistake can be addressed under two broad categories; a) Irrelevant mistakes The House of Lords’ decision in Forbes (Giles) [2001] UKHL 40 provides a recent example of a mistake which does not negate the mens rea and is therefore immaterial. D was convicted of being “knowingly concerned” in the fraudulent evasion of the prohibition on the importation of prohibited goods contrary to s.170(2) of the Customs and Excise Management Act 1979. It was held that, as long as D knew or believed he was importing ‘prohibited goods’, it was irrelevant that he did not appreciate their precise nature, in this case child pornography. The mens rea of the offence required only that D should know or believe that the goods being imported were prohibited, not what category of prohibited goods they fell into. Hence a mistake that the videos, though obscene, featured adults rather than children would not negate this mens rea because obscene adult pornography is a ‘prohibited’ good. On the other hand, if D had mistakenly thought that the videos contained adults only and were merely indecent and not obscene, his mens rea would have been negatived because non-obscene, adult (as opposed to child) videos are not ‘prohibited goods’ under the legislation. b) Mistake as to a defence In the context of mistake, the law states that the excusatory (for example duress) defences will be permitted only where the accused’s belief in the existence of the excusing circumstances was reasonable. In contrast, for justificatory defences (for example self defence) the law states that if he honestly believed the circumstances were such that the law would entitle him to do as he did, the accused will not be guilty even if his belief was unreasonable. 8.3 Mistake as to the need to act in self defence

We will address self defence below and it may be worth returning to this section to reappraise these principles once you have completed your reading on self defence.

TEXT BOOK ACTIVITY

Firstly please read the above titled section in Criminal Law – The Fundamentals

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CASE BOOK ACTIVITY

Read the case of Williams (Gladstone) (1984) 78 Cr App R 276 in Text and Materials ((this extract is located in the chapter ‘Relationship of Mens Rea to Actus Reus’) Summarise the Court of Appeal’s reasoning on how mistaken self-defence or prevention of crime affects liability.

Williams was endorsed by the Privy Council in Beckford v R [1987] 3 All ER 425 so that an honest belief that D was using reasonable and necessary force in the prevention of crime or self-defence means that D lacks the necessary intention to apply unlawful force and therefore cannot be guilty of the offence. The prosecution would have failed to prove the necessary mens rea. If you have failed to grasp the principle from Williams you may find it useful to read the extract from Beckford in your Text and Materials. 8.4 Mistaken belief in consent

TEXT BOOK ACTIVITY

Please read the above titled section in Criminal Law – The Fundamentals and set out, in your own words, how a mistake as to consent operates.

A the ‘victim’s’ consent may prevent liability for an intentional application of force by D as we could say that D does not satisfy the actus reus and mens rea of the crime (intentional application of unlawful force) because the victim’s consent renders the force applied lawful. This was the approach taken by the Court of Appeal in Kimber so that consent in battery was a definitional element of the crime, although doubt was cast on this by Brown #9who approached consent as a defence). A similar line to Kimber has been taken where D has mistakenly believed he was acting in self-defence or the prevention of crime (Williams; Beckford v R). Thus, in both consent and self-defence/prevention of crime cases, the mistake does not have to be reasonable. A final note on mistake and ‘defences’ Please ensure you distinguish ‘justificatory defences’ comprising ‘definitional elements’ of the crime, e.g. self-defence (Beckford; Williams) and consent (Kimber) from ‘excusatory’ defences e.g. duress (Graham). For a justificatory ‘defence’ the mistake need not be reasonable. For other defences the mistake as to circumstances must be reasonable and be such that, if true, would establish the defence, e.g. amount to duress.

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8.5

Crimes of negligence

Let us suppose that the offence charged requires a fault element only of negligence in relation to that part of the actus reus about which the mistake has been made.

ACTIVITY

Would the mistake be a ‘defence’? Would it matter whether it was reasonable or unreasonable?

To answer this question we can look at the old case of Tolson (1889) 23 QBD 168 which involved a prosecution for bigamy. Bigamy is committed by anyone who, whilst already married, ‘marries again’. In this case D ‘married’ again believing incorrectly that her husband had been lost at sea and that she was therefore free to marry. The court held that an honest belief that D was free to marry was insufficient to negative liability. Only if the belief was also based on reasonable grounds would the defendant escape conviction. At first sight this seems to contradict the principle laid down in DPP v Morgan and yet it was approved by the House of Lords in that case. The explanation is that, in the eyes of both courts, the prosecution does not need to prove any mens rea (in the strict sense) on the part of D in relation to the fact that he is already married at the time of the second ceremony, in order to secure a conviction for bigamy. The only intention required on the part of D for the offence is an intention to go through the second ceremony. A mistake that he is free to marry at this time can have no bearing on that intention. However, by allowing a reasonable mistake defence, the courts are in effect incorporating a lesser fault element into the crime of bigamy, namely, negligence as to whether D is already married. Clearly, if D makes an unreasonable mistake about this fact, he makes a negligent mistake and, by definition, the prosecution will have established negligence as to the fact that D is already married (See also Gould [1968] 1 All ER 849, CA). If this mistake is reasonable he cannot by definition be negligent, so that the necessary fault element is missing. 8.6 Crimes of strict liability

Sometimes the courts will hold that an offence requires no fault element at all, not even negligence, in relation to one or more elements of the actus reus. Such offences are known as strict liability offences, to which not even a reasonable mistake will be a defence. The classic example is Prince [1874–80] All ER Rep 881 involving the offence of abduction now governed by s. 20 of the Sexual Offences Act 1956. D took an unmarried girl under 16 out of the possession of her parents without their consent. He claimed that he believed she was over 16. The court held that the prosecution merely had to prove that she was in fact under 16. D did not have to know she was under 16 or realise she might be under 16 or even be negligent as to the fact that she was under 16. Even if D made the most reasonable mistake in the world about her age, it would not prevent a conviction because no fault needed to be proved in relation to that element of the actus reus. It was a strict liability offence. In other words, the effect of the mistake in question depends on whether it prevents D having a fault element laid down by the definition of the crime charged. Although the House did not formally overrule Prince and other sexual offence decisions applying strict liability to the age factor, the correctness of their decision to impose strict liability is thrown into doubt by B v DPP [2000] 1 All ER 833, HL and also K [2001] Crim LR 993 HL (see below).
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Although the Court of Appeal in K [2001] Crim LR 134 took a similar view of the crime of indecent assault under s. 14 of the Sexual Offences Act 1956, their view was overturned by the House of Lords ([2001] UKHL 41) which described Prince as “discredited”. Section 14(2) provides that a girl under 16 cannot legally consent so as to negate the assault element. It was held that the offence required full mens rea in respect of this age factor so that even an unreasonable mistake that the girl was 16 or over would prevent liability. (The Sexual Offences Act 2003 reverses both B v DPP (s. 10) and K (s. 3) in respect of the specific offences in issue, but that does not affect the general principle they enunciate). 9. SELF-DEFENCE, PREVENTION OF CRIME AND DEFENCE OF PROPERTY

Although it is common to refer to self-defence and prevention of crime as ‘defences’, they form part of the ‘definitional elements’ of crimes of violence. The force must be ‘unlawful’ and if D uses reasonable force in self-defence, he does not apply ‘unlawful’ force and therefore the actus reus is not established. It follows that it is for the prosecution to disprove self-defence etc. where D adduces credible evidence of it, because ‘unlawfulness’ is one of the elements defining the offence (Beckford v R (below); Anderson [1995] Crim LR 430, CA). It is important for you to bear this in mind throughout this section even though, for ease of explanation, we often refer to them as ‘defences’. The essence of this ‘defence’ is that in some circumstances D is justified in using violence to meet unjustified aggression against an interest which the law deems worthy of protection.

TEXT BOOK ACTIVITY

Please read Criminal Law – The Fundamentals ‘Sources of Law’ and answer the following questions. Please explain the two separate defences. Can you think of a situation where the statutory ‘prevention of crime’ defence in s. 3 would not apply, but the common law defence of self-defence would?

Theoretically, the statutory defence is wider in that the crimes you would be entitled to use reasonable force to prevent are not limited to crimes of violence, as appeared to be the case under the common law defence. Thus, you might be entitled to use reasonable force to prevent someone from indecently exposing himself.

ACTIVITY

Does this mean that you can use force to prevent any crime?

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No matter how trivial the offence, theoretically you are entitled to use reasonable force to prevent it, although it is open to the court to find that, in the circumstances, the offence is so trivial that no force would be reasonable to prevent it. The law regarding self defence has recently been clarified by the Criminal Justice and Immigration Act 2008 s.76. (1) This section applies where in proceedings for an offence— (a) an issue arises as to whether a person charged with the offence (“D”) is entitled to rely on a defence within subsection (2), and (b) the question arises whether the degree of force used by D against a person (“V”) was reasonable in the circumstances. (2) The defences are— (a) the common law defence of self-defence; and (b) the defences provided by section 3(1) of the Criminal Law Act 1967 (c. 58) or section 3(1) of the Criminal Law Act (Northern Ireland) 1967 (c. 18 (N.I.)) (use of force in prevention of crime or making arrest). (3) The question whether the degree of force used by D was reasonable in the circumstances is to be decided by reference to the circumstances as D believed them to be, and subsections (4) to (8) also apply in connection with deciding that question. (4) If D claims to have held a particular belief as regards the existence of any circumstances— (a) the reasonableness or otherwise of that belief is relevant to the question whether D genuinely held it; but (b) if it is determined that D did genuinely hold it, D is entitled to rely on it for the purposes of subsection (3), whether or not— (i) it was mistaken, or (ii) (if it was mistaken) the mistake was a reasonable one to have made. (5) But subsection (4)(b) does not enable D to rely on any mistaken belief attributable to intoxication that was voluntarily induced. (6) The degree of force used by D is not to be regarded as having been reasonable in the circumstances as D believed them to be if it was disproportionate in those circumstances. (7) In deciding the question mentioned in subsection (3) the following considerations are to be taken into account (so far as relevant in the circumstances of the case)— (a) that a person acting for a legitimate purpose may not be able to weigh to a nicety the exact measure of any necessary action; and (b) that evidence of a person's having only done what the person honestly and instinctively thought was necessary for a legitimate purpose constitutes strong evidence that only reasonable action was taken by that person for that purpose. (8) Subsection (7) is not to be read as preventing other matters from being taken into account where they are relevant to deciding the question mentioned in subsection (3). (9) This section is intended to clarify the operation of the existing defences mentioned in subsection (2). Page 195

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(10) In this section— (a) “legitimate purpose” means— (i) the purpose of self-defence under the common law, or (ii) the prevention of crime or effecting or assisting in the lawful arrest of persons mentioned in the provisions referred to in subsection (2)(b); (b) references to self-defence include acting in defence of another person; and (c) references to the degree of force used are to the type and amount of force used. This essentially codifies the current common law position and the statutory provision under the 1967 Act (however we need clarification through case law). Please be aware that the principles that govern the operation of the defence are still those common law principles we will discuss below. 9.1 What is reasonable force?

The concept ‘reasonable force’ embraces two ideas; necessity and proportionality. Necessity means that the force used was necessary - in the sense that lesser violence would not have been adequate to defend oneself or prevent the crime. Proportionality means that it was reasonable to use that necessary force in the sense that it was not disproportionate to the mischief sought to be avoided.

ACTIVITY

Do you think reasonableness of force is tested subjectively or objectively? Write down your answer. Give reasons if you can. How carefully must someone seeking to use self defence weigh his defensive action (see Lord Morris in Palmer v R [1971] AC 814 PC in Criminal Law - The Fundamentals ‘Reasonable force’ for the answer to this question)

Please be VERY clear - what amounts to reasonable force is a question of fact for the jury and as such the test is objective and depends on the jury’s view of whether a reasonable person would have used such force in the circumstances as perceived by the accused (Williams [1987] 3 All ER 411, CA). If D simply believes that he is entitled to use more force than the law permits this is regarded as a mistake as to the criminal law and, as such, should not provide a defence. It is for the law, in the shape of the jury, to prescribe the standard of reasonable force, and if D gets it wrong and acts excessively, he is rightly convicted. Although the test is objective – the court lays down the external standard of what amounts to reasonable force in the given situation – it is given a subjective twist by ruling that the defender’s belief that it was necessary is ‘most potent evidence’ that it was reasonable. It is almost as if the reasonableness of the force goes to establishing that D acted in genuine self-defence. However, in judging whether the force used by D was reasonable, D must be judged on the facts as he saw them. Thus, if D was mistaken in believing that P was attacking him or committing a crime, then the jury must assume that P was attacking D or committing a crime, and decide whether D used only reasonable force in those imagined circumstances. It is clear from Williams [1987] 3 All ER 411, CA and Beckford v R that D’s mistake need only be an honest one and it does not matter whether it is reasonable or unreasonable.
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The same is true of any other mistake about the factual circumstances, e.g. D imagined the attack was more severe than it was (as where D believed P to have a gun, when in fact it was a water pistol). In short D must use (objectively) reasonable force in the circumstances as he (subjectively) saw them.

ACTIVITY

What about where D’s mistake as to the need for self defence is an intoxicated one? Will an intoxicated mistake as to fact, i.e. that D believes he is under attack, be taken into consideration? If you cannot answer this question please refer back to intoxication and mistake, specifically the O’Grady case.

CASE BOOK ACTIVITY

Although we therefore judge D on the facts as he saw them does this extend to his assessment of what those facts mean in terms of the degree of danger created? For the answer to this question please read the brief extract from Martin (Anthony) [2002] Crim LR 136 CA and the commentary that follows in Text and Materials (in the self defense section of the text.)

9.2

Other matters

Pre-emptive strike and imminent attack

ACTIVITY

Do you think someone who fails to retreat and stands his ground should be disqualified from using the defence? What about someone who makes a preemptive strike, fearing an imminent attack?

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There used to be a rule at common law that, unless the defendant had retreated as far as he possibly could he was not entitled to use any force. This rule no longer holds, although the courts will normally expect a defendant to indicate his willingness to ‘temporise and disengage’ (Julien [1969] 2 All ER 856). However, everything depends on whether the defendant acted reasonably in standing his ground (Bird [1985] 2 All ER 513, CA). Indeed, some cases have accepted that it may be reasonable for D to make a pre-emptive strike to prevent an attack which he apprehends is about to be made (Attorney-General’s Reference (No. 2 of 1983) [1984] 1 All ER 988, CA; Beckford v R [1987] 3 All ER 425, PC).

ACTIVITY

Does this mean a battered wife who has reached the end of her tether can choose her moment to despatch her tormentor, knowing that this is the only way to prevent inevitable, further, violent attacks on her?

Self-defence (although embracing pre-emptive strikes), currently requires apprehension of an imminent attack (Attorney-General’s Reference (No. 2 of 1983) [1984] 1 All ER 988, CA). Just as an actual pre-emptive strike can be rendered lawful so also can acts carried out in preparation for defensive action, provided the attack apprehended is imminent and D believes that the means he intends to use are ‘no more than reasonably necessary to meet the force . . .’ (Attorney-General’s Reference (No. 2 of 1983) – shopkeeper’s possession of petrol bombs during Toxteth riots). Defence of property The same basic principles apply where D is defending his own or another’s property.

ACTIVITY

Does this mean that a householder can kill a burglar in defence of his property?

It seems clear that, in modern times, the amount of force which will be permitted as reasonable must surely be less where the motive is defence of property as opposed to defence of person.

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In a recent civil case, Revill v Newbery [1996] 1 All ER 291, CA, an old-age pensioner was ordered to pay damages for injuries caused to someone breaking into his allotment shed. Fed up with repeated break-ins to his shed and vandalism to his allotment, D had spent the night in the shed armed with a shotgun. When he heard the men outside trying to get in, he fired through a hole in the door seriously injuring P. Despite D arguing that he feared for his safety as well as his property, the High Court and subsequently the Court of Appeal held the force to be out of all proportion to the threat. Public and newspaper outrage followed and D was showered with public donations to a fund set up by the local mayor! In general, however, the courts would be keen to discourage this kind of vigilantism. The notorious conviction of Tony Martin for the murder of a teenage burglar (later reduced to manslaughter) provides another example though it must be said the victim was shot in the back whilst trying to get out of the farmhouse. 9.3 The effect of the defence

If the defence succeeds, whether common law or statutory, D’s conduct is regarded as lawful and he is completely acquitted. It can be a defence to any crime including murder.

ACTIVITY

Read the case of Clegg [1995] 1 All ER 334 in Text and Materials Can self-defence be successful if D uses excessive force? If the charge is murder, do you think the use of excessive force should or could reduce the charge to manslaughter?

9.4

The European Convention on Human Rights

TEXT/CASE BOOK ACTIVITY

Please read the above titled section in Criminal Law - The Fundamentals and ‘C. The Permitted Response’ in Text and Materials. Does the English law regarding self defence contravene Article 2(1)?

9.5

Reform

We have already seen clarification of the law through the 2008 Act. Any further change to the law governing self-defence would have to take into account the conflict between the English law and Article 2, considered above.

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10.

DURESS

ACTIVITY

What if someone threatens to kill you or a member of your family unless you commit a particular crime, say armed robbery? What if a homeless person in danger of freezing to death one night breaks the lock on an empty house to sleep overnight? Can a surgeon operate on an unconscious patient without the patient’s consent? Can someone with a rare blood group have blood extracted forcibly if this is the only way of saving a patient’s life? There are no answers, but if you take a moment to consider whether you think a D should be afforded a defence in any/all of these situations, you will be able quickly to grasp the issues at the heart of this chapter.

Duress allows a defence (subject a great number of very strict rules) for one compelled to act under a threat of death or serious personal violence. This defence is then a concession to human weakness; it recognizes that although, when committing the offence your limbs are under your physical control your will has been overborne. The source of the compulsion may originate from a human coercer (in the case of traditional duress, also known as duress by threats) or by the situation (in the case of duress of circumstances or necessity). Aside from the difference in the source of the fear, the conditions for a successful plea are the same for each type of the defence. The case law which follows can be from either type of the defence to illustrate its operation.

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CASE BOOK ACTIVITY

Please read the introduction to Duress and Necessity (at point ‘V’), the case of R v Shayler [2001] W.L.R. 2206 CA and the commentary upon the case in Text and Materials and answer the following questions. Can you define duress in general terms?

Which two defences are similar to duress by threats?

How may we distinguish these defences from duress by threats?

Now please read up to (but not including) ‘Parameters of the defence’.

Why do we allow a defence of duress by threats?

10.1

What constitutes duress?

The test for duress is analogous to the test used in the defence of provocation, in that there are both subjective and objective elements to satisfy. What kind of detailed direction to the jury should the judge give when explaining the test to be applied? He should ask: (a) was D or may he have been impelled to act as he did because, as a result of what he reasonably believed the threatener had said or done, he (D) had good cause to fear that if he did not so act, the threatener would kill him or cause him serious physical injury; and if so, has the prosecution made the jury sure that a sober person of reasonable firmness, sharing the characteristics of D, would not have responded to whatever he reasonably believed the threatener said or did by taking part in the crime?

(b)

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ACTIVITY

Is the first limb of this test an entirely subjective test? What objective elements does it contain? If you cannot answer this question please refer to ‘The objective elements’ point a) in Criminal Law – The Fundamentals.

(a) The first limb – the subjective (objective) test The first limb (a) requires that D feels he has no other practical choice than to commit the ‘crime’. Although the first limb of this test is termed a subjective test in that it depends on establishing that D committed the crime because he actually feared death or serious injury, it does contain objective elements. D must have good cause to fear that the threatener is serious in making the threats and intends to carry them out. If he mistakes or misunderstands what the threatener has said or done, D will be judged on the facts as he believed them to be only if his belief was reasonable. This means that D may not be judged on what he actually believed was being threatened and/or what he actually feared would be the result of ignoring the threat. This is likely to be so where he is extremely anxious, stupid and/or gullible. Provided D’s belief that there is a threat is reasonable, there does not in fact have to be such a threat (Safi [2003] Crim LR 721). (b) The second limb – The objective limb The second limb (b) is the objective yardstick or control against which D’s conduct is to be judged. The test (influenced by Camplin in provocation – and by way of which it may be easier to remember!) is whether a person of average firmness or resistance to threats, but having D’s age and sex, and sharing any characteristics of D which would affect the gravity of the threat to him, would have reacted by committing the crime perpetrated by D. According to the Court of Appeal, ‘a person of reasonable firmness is an average member of the public; not a hero necessarily, not a coward, just an average person’. As in provocation, there may be difficulties over what characteristics of D can and cannot be given to the hypothetical person of ‘reasonable firmness’.

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ACTIVITY

What characteristics can we give to the person of reasonable firmness? Please read point (b) Steadfastness and R v Bowen [1996] 2 Cr App R 157 in Text and Materials and ‘The person of reasonable firmness’ in Criminal Law – The Fundamentals and complete the following chart.

Characteristic

Would this characteristic be attributed to the reasonable person?

Case authority

Comments/justification

Age

Sex

Low I.Q

Pregnancy

Physical Disability

Battered person syndrome

Drug/alcohol addiction

Timidity or vulnerability

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10.2

Other matters

Nature of the threats

TEXT BOOK ACTIVITY

Please read the above titled section in Criminal Law - The Fundamentals.

As you have read it is now settled that the only threats capable of constituting duress are threats of death or serious injury (Hudson and Taylor [1971] 2 QB 202; DPP v Lynch [1975] AC 653). It follows that a threat of non-serious injury or a threat to reveal D’s homosexuality (Valderrama-Vega [1985] Crim LR 220) or threats to burn down D’s home or business premises or to ruin him financially could not found a successful plea of duress, even if the crime committed in response to those threats is relatively trivial. On the other hand, according to Valderrama-Vega, if there is a variety of threats including threats of death or serious injury, it is permissible to take into account the cumulative effect of all these threats, not just the threats of death or serious harm, provided that D would not have committed the offence but for the threats of death or serious harm. Against whom must the threat be directed? We have established that threats to kill or seriously injure the defendant will suffice, but suppose the threat is against someone other than the defendant.

ACTIVITY

Do you think duress should be limited to threats of harm to D himself or extended to threats of harm to any third party or perhaps a limited class of third parties?

In Hasan, Lord Bingham directed that the threat must be directed against (or, it is submitted, the circumstances must produce fear for) D or his immediate family, or someone close to him, or if not, to a person for whose safety D would reasonably regard himself as responsible.

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Threat must be immediate

ACTIVITY

Please read ‘Immediate or imminent?’ in Criminal Law – The Fundamentals and point v. ‘Imminency of threat’ in Text and Materials and complete the following chart.

Case

Brief facts

Legal principle

Comments

Hudson and Taylor [1971] 2 All ER 244, CA.

AbdulHussain et al. [1999] Crim LR 570

Hasan [2005] UKHL 22

Opportunity to escape the threats (evasive action) The defence of duress will fail if D fails to take advantage of a reasonable opportunity to escape from the dilemma posed by the threats, Hudson and Taylor [1971] 2 All ER 244, CA.

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ACTIVITY

From your reading of the case of Hudson and Taylor [1971] 2 QB 202 if you had been on the jury, and had been directed properly, would you have convicted the defendants of perjury?

Please note the principle in Hudson has now been significantly limited by Hasan (above) where Lord Bingham stated ‘… I can understand that the Court of Appeal had sympathy with the predicament of the young appellants but I cannot, consistently with principle, accept that a witness testifying in the Crown Court at Manchester has no opportunity to avoid complying with a threat incapable of execution then or there.’ Voluntary association with violent criminals Hasan has also significantly limited the availability of the defence to defendants who voluntarily associate with criminals.

TEXT BOOK ACTIVITY

Please read Criminal Law – The Fundamentals ‘voluntary association with violent criminals’. Do you now lose the defence only if you know you may be the subject of compulsion, or is the law wider than this?

10.3

To which crimes is duress a defence?

CASE BOOK ACTIVITY

Please read the case extracts within ‘ix. Crimes to which duress is a defence’ in Text and Materials paying particular attention to Howe [1987] 1 AC 417.

Although you may expect duress, as a general defence, to be available as a defence to all crimes, this is not so. Most importantly, the House of Lords, after some vacillation, has decided that it can never be a defence to the crime of murder (Howe). No matter how dire the threats against D, the law will not excuse his killing of an innocent person. After all, the threatener may not actually carry out his death threat if D refuses to kill the innocent person, whereas if he succumbs to the threats, then the death of the innocent party is a certainty, assuming D succeeds in his objective.
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10.4

Proposals for reform

TEXT BOOK ACTIVITY

Please complete the reading of the duress section in Criminal Law Fundamentals

- The

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Duress by threats flow chart
Is D charged with murder or attempted murder?

Yes Duress fails

No Were the threats of death or serious injury?

No Duress fails

Yes Were they aimed at compelling D to commit a particular crime (or perhaps type of crime)?

No- Duress fails (but may be duress of Circumstances

Yes Was D impelled to commit the crime because he feared with good cause that otherwise the threats would be carried out?

No Duress fails

Yes Would a sober person of reasonable firmness have responded to the threats by committing the crime?

No Duress fails

Yes Did D fail to take advantage of a reasonable opportunity to escape the threats?

Yes Duress fails

No Did D voluntarily associate with the people exerting the threats when they knew (or should have known) their propensity to violence?

Yes Duress fails

No Duress

succeeds

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11.

DURESS OF CIRCUMSTANCES

CASE BOOK ACTIVITY

Please read point ‘C. Duress of circumstances in Text and Materials including the cases and commentary for R v Martin (1989) 88 Cr App R 343 and Pommell [1995] 2 Cr App R 607.

Surprisingly duress of circumstances was accidentally invented by the Court of Appeal in Willer (1986) 83 Cr App R 225, when it quashed D’s conviction on a procedural irregularity, but in circumstances which could be viewed as being duress, without a human coercer. The case was quickly approved in Conway [1989] QB 290 where D was charged with reckless driving. D’s passenger, T, had previously been the target of an attack with a shotgun. When two plainclothes police officers approached D's car, he feared that T was about to be shot at again. D drove off, and he admitted at trial his driving had been reckless, but he claimed he only discovered that the chasers were police officers after T had been dropped off and the officers caught up with him. Allowing his appeal against conviction, the Court of Appeal recognised the existence of the defence where a person felt constrained to act as he did to avoid death or serious bodily harm to himself or another, and a reasonable man would have driven as D did in the circumstances. The application of duress of circumstances to non-road traffic crimes was confirmed in Pommell [1995] 2 Cr App R 607, where the Court of Appeal saw no reason to limit the defence to road traffic offences. Even though the defence of duress is now well established, each type is very limited and difficult to plead successfully. The two limbed test provides a significant hurdle, particularly in light of the objective elements within the subjective limb and the impact of Hasan. However the courts believe this is the correct position as according to Lord Simon in DPP for Northern Ireland v Lynch [1975] AC 653, “your Lordships should hesitate long lest you may be inscribing a charter for terrorists, gang-leaders and kidnappers.” Consequently, although the burden of proof rests on the prosecution, there are so many requirements in the defence that it is exceedingly difficult to plead. 12. NECESSITY

In essence the defence of necessity arises when D is forced commit a criminal act to avert a greater evil. However this defence is far from settled, largely due to its rejection in Dudley and Stephens (1884) 14 QBD 273.

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TEXT/CASE BOOK ACTIVITY

Please read the introduction to necessity in Criminal Law - The Fundamentals and the ‘Distinction between necessity and duress of circumstances’ in Text and Materials. What are the integral differences between the two defences?

12.1

Medical necessity

Although a general defence of necessity is in doubt necessity has been readily recognized as a defence in the medical field. While consent for medical intervention can of course render intervention lawful, the defence of necessity allows such treatment without consent where the patient is incapable of making a decision whether through illness or accident (e.g. he is unconscious) or mental incapacity. In F v West Berkshire Health Authority, the House of Lords granted a declaration that a sterilisation operation on a sexually active mental patient who, having a mental age of five, was incapable of consenting, was lawful because pregnancy was likely to be disastrous for her psychiatric health. In Gillick v West Norfolk Area Health Authority [1985] 3 All ER 402, a majority of the House of Lords, without expressly referring to necessity, held that a doctor providing contraceptives to a girl under 16 and thereby knowingly encouraging sexual intercourse with a girl under 16, would not be guilty of aiding and abetting the offence if he believed the provision of contraceptives to be necessary for her physical, mental or emotional well-being. Similarly, in the Bournewood NHS Trust case, doctors who detained and treated a mental patient incapable of consenting would have the defence of necessity rendering their actions lawful provided they were necessary to avert danger or potential danger to the patient or others (Lord Goff) or to promote the best interests of the patient (Lord Steyn). It therefore appears well established that necessity defends doctors against battery etc. on their patients provided only that their actions would be seen by reasonable people and doctors as necessary in the best interests of the patient. 12.2 Non-medical situations

Outside the medical arena, there is not much authority for the existence of a general defence of necessity going beyond the duress of circumstances defence. In Altham [2006] EWCA Crim 7, the Court of Appeal held that a person who used cannabis for pain relief and who was charged with possessing a controlled drug could not raise a defence of necessity by relying on article 3 of the European Convention on Human Rights (inhuman or degrading treatment or punishment). A similar argument had been rejected based on article 8 (private life) in Quayle [2005] EWCA Crim 1415.

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12.3

Necessity and murder

CASE BOOK ACTIVITY

Read the extract from the famous case of Dudley and Stephens (1884) 14 QBD 273 in Text and Materials. Do you think this is a case of necessity, duress of circumstances, or neither?

Some academics argue this was not a case of necessity at all because the choice as to victim was made by the sailors rather than as a matter of necessity (it did not matter which of the 4 died to save the others), it was not at all certain that the others would have died had the boy not been killed (even though it was probable) and unlike the conjoined twins case, below, the cabin boy was not by his conduct directly or indirectly bringing the others near death. 12.4 Should the defence be recognised?

TEXT BOOK ACTIVITY

Please read Criminal Law – The Fundamentals ‘Necessity and murder’. Does Re A (Children) [2001] 2 WLR 480 mean we now have a defence of necessity for murder?

How can the two cases be distinguished?

(We strongly recommend you review your knowledge of this topic by reading Re. A and the commentary that follows in Text and Materials.)

TEXT BOOK ACTIVITY

Please read the above titled section in Criminal Law - The Fundamentals and make notes supporting and critiquing the defence of necessity.

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CONCLUSION TO DEFENCES

You will have noticed significant overlap between the defences we have addressed in this chapter. Please remember in certain circumstances defendants will have more than one defence open to them. For example, a defendant who is suffering from an internal disease that affects their mental state may argue insanity but may alternatively have the defence of automatism if they have taken medication for that condition (and if the offence is murder diminished responsibility may also be available). The crux will be whether the mental state has arisen from the internal or external ‘cause’. Likewise a defendant may defend himself from a perceived attack while intoxicated, raising the defences of intoxication and intoxicated mistake as to self defence. A defendant who steals a car to escape his attackers conceivably has a defence of duress and necessity (although necessity is unlikely). Please note this is not an exhaustive list of the overlap between the defences; the defences available will depend upon the facts of an individual case. However, this overlap is well worth considering as many students settle upon one ‘obvious’ defence and fail to consider the valid alternatives.

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