CRIMINAL LAW SUMMARY

DEFINITION OF CRIME

⇒ It is difficult to define crime, as it must encompass a range of offences:

everything from murder to motoring offences.

⇒ Farmer argues the definition of crime depends on your perspective (e.g. you

will have a different definition of crime depending on the political and social
factors in the country you live).

⇒ Nevertheless, the simple definition is that a crime is conduct defined as such

by statute or by common law. In other words, and not very helpfully, something
is a crime if the law says it is a crime.

⇒ In Board of Trade v Owen (1957), Lord Tucker defined crime as "an unlawful

act or default which is an offence against the public and renders the person guilty
of the act or default liable to legal punishment".

 However, this definition can be criticised as not reflecting current

attitudes to crime: for example, it only mentions ‘punishment’ as a
response to crime and not other responses to crime, such as restoritative
justice.
 THE MAIN FUNCTIONS
 ⇒ Maintaining order: Criminal law provides predictability, letting people
know what to expect from others. Without criminal law, there would be
chaos and uncertainty.
 ⇒ Resolving disputes: The law makes it possible to resolve conflicts and
disputes between quarrelling citizens. It provides a peaceful, orderly way to
handle grievances.
 ⇒ Protecting individuals and property: Criminal law protects citizens from
criminals who would inflict physical harm on others or take their
possessions.
  ⇒ Providing for smooth functioning of society: Criminal law enables the
government to collect taxes, control pollution, and accomplish other
socially beneficial tasks.
 ⇒ Safeguarding civil liberties: Criminal law protects individual rights.

WHY DO WE NEED A DEFINITION OF CRIME?

⇒ Defining what is a crime is important if we are to distinguish a crime from a

civil wrong

 If you assault someone, for example, this is both a crime and a tort.
Technically, through either route (criminal or tort) a financial loss may be
incurred by the defendant: in criminal law the defendant could be fined,
whereas in tort law the defendant may be sued for damages.
 Thus, the importance in distinguishing a crime from a civil wrong lies in
the moral blame the defendant will be exposed to if convicted of a
crime.
 If you are guilty of a crime you will have to carry a certain level of
condemnation (i.e. public dissaproval) that does not necessarily exist if
convicted of a tortious offence.
 Although, note, it may still be possible to award punitive damages in civil
proceedings (e.g. tort proceedings) if the court regards the tort or breach
of contract as a particularly blameworthy one.

 ACADEMIC VIEW
 ⇒ Most academics view the criminal law as having a political function: to
maintain order.
 ⇒ However, Duff argues criminal law enables “perpetrators of public
wrongs [to] be called to account” i.e. it allows criminals to be held
responsible for their crimes.
 ⇒ Check out the aims and objectives of the Criminal Justice System, here.

Functions of criminal law

  THE LEGALITY PRINCIPLE
 ⇒ The principle of legality is the legal ideal that requires all law to be clear.
 ⇒ It requires decision makers to resolve disputes by applying legal rules
that have been declared beforehand, and not to alter the legal situation
retrospectively by discretionary departures from established law
 ⇒ In criminal law it means the court should not punish people for acts or
omissions that were not criminal at the time those acts or omissions took
place. The principle is also thought to be violated when the punishment for
a particular crime is increased with retrospective effect.
 ⇒ It requires the law be capable of being obeyed. If laws were kept secret
that would clearly infringe the legality principle.
 ⇒ It requires the law be readily available to the public. If a law was made
prohibiting your heart to beat in public that would clearly infringe the
legality principle.

P R I N C I P L E S O F C R I M I N A L L AW

 RESPONSIBILITY PRINCIPLE
 ⇒ The principle of responsibility is the principle that one should only be
found guilty of crimes they are responsible for. For example, if you were to
have a seizure and committed a crime as a result of that seizure, the
principle may be infringed if you were punished for it.

 AUTONOMY
 ⇒ When deciding whether conduct should be criminalised the court must
take into account autonomy → this is the idea that one should be able to
live their life as they please.
 ⇒ Criminal law is used to avoid somebody’s practice of autonomy from
interfering with another person’s autonomy
 ⇒ The autonomy principle also explains why people should be liable for the
bad choices they make.
  ⇒ The autonomy principle is not without controversy: it has been argued,
for example, that although the right to choose how to live our lives may be
available to the rich, this may not be the case for the poor.
 HE MINIMAL CRIMINALISATION PRINCIPLE
 ⇒ The principle of minimal criminalization articulates that only serious offences which are adverse
to society should be criminalised, but not trivial ones.
 ⇒ If every tiny offence was criminalised we would left with heavily over-crowded prisons.
 THE PROPORTIONALITY PRINCIPLE
 ⇒ The proportionality principle means punishment for a given crime should be roughly
proportional to that crime’s seriousness. It would be an outrage if, for instance, the punishment for
rape was the same as the punishment for speeding.
 THE FAIR LABELLING PRINCIPLE
 ⇒ The fair labelling principle requires that the description of the offence should match the wrong
done (Chalmers and Leverick). For example, if the defendant kills someone through negligence,
‘murder’ would not be a fair label to attach to what the defendant did.

CRIMINAL CONDUCT

 THE HARM PRINCIPLE

 ⇒ The harm principle refers to a theory of crime that an action can only be
banned if it causes harm to someone.
 ⇒ John Stuart Mill articulated this principle in On Liberty, where he argued
that, "the only purpose for which power can be rightfully exercised over
any member of a civilized community, against his will, is to prevent harm to
others".
 Culpability

 GENERAL OVERVIEW OF CULPABILITY

⇒ For a crime, it is normally not enough to show that the offender caused harm
to another; it must also be shown that the defendant was blameworthy in
harming the other person.

⇒ In other words, it must be shown that the defendant was responsible for the
harm.
ACADEMIC COMMENTARY

⇒ Lacey demonstrates that the law seeks to ensure only blameworthy individuals

are punished

PRACTICALITY
⇒ Conduct will only be criminalised if the law would be practically enforceable.

Actus Reus
BASIC INTRODUCTION

⇒ A person cannot usually be found guilty of a criminal offence unless two

elements are present: an actus reus, Latin for guilty act; and mens rea, Latin for
guilty mind.

⇒ To be guilty of an offence, an accused must not only have behaved in a

particular way, but must also usually have had a particular mental attitude to that
behaviour.

⇒The exception to this rule is a small group of offences known as crimes of strict
liability.

⇒ The definition of a particular crime, either in statute or under common law, will
contain the required actus reus and mens rea for the offence. The prosecution has
to prove both of these elements so that the magistrates or jury are satisfied
beyond reasonable doubt of their existence.

⇒ If this is not done, the person will be acquitted, as in English law all persons are
presumed innocent until proven guilty

 Woolmington v DPP (1935) is a landmark case where the presumption of

innocence was first articulated in the Commonwealth.
WHAT IS THE ACTUS REUS?
⇒ The >actus reus of an offence tells us what we can and cannot do. For
example, killing someone would be the actus reus of murder.

⇒ An actus reus can consist of more than just an act, it comprises all the elements
of the offence other than the state of mind of the defendant. Depending on the
offence, this may include the circumstances in which it was committed, and/or
the consequences of what was done.

 For example, the crime of rape requires unlawful sexual intercourse by a man
with a person without their consent. The lack of consent is a surrounding
circumstance which exists independently of the accused’s act.
Voluntary act requirement
BASIC INTRODUCTION TO THE VOLUNTARY ACT REQUIREMENT

⇒ The voluntary act requirement means you cannot usually commit a crime

without doing an act: a person is not guilty of an offence unless his criminal
liability is based upon conduct that includes a voluntary act.

⇒ A voluntary act is defined as conduct which is performed consciously. For

example, if you were carrying your mother’s favourite china and then your
brother scared you as you walked into the dining room, causing you to drop the
china, then you would not be charged of unlawful damage. Indeed, it may be seen
as your brother’s act!

OMISSIONS

⇒ Generally, a person will not be liable for simply failing to act. In English law, at
least, if you come across a child drowning in a pond and simply leave that child to
die you will not be criminally liable.

CRIMES THAT CANNOT BE COMMITTED BY AN OMISSION

⇒ However, in some circumstances it may be possible to be criminally liable for

an omission where there is a duty to act in a particular way. The following
section demonstrates situations where the defendant will be under a duty to act,
such that an omission could lead to criminal liability.
WHEN THE DEFENDANT IS UNDER A DUTY OF CARE

⇒ Statutory duty: In some situations there is a statutory duty to act. For example,
to provide details of insurance after a traffic accident or to notify DVLA when you
sell a vehicle. Failure to do so will lead to criminal liability.

⇒ Duties of law enforcement: Police officers have a duty to assist members of

public in danger; if they fail to do so they will be criminally liable. See R v Dytham,
for example.

⇒ Contractual duty: If a person owes a contractual duty to act, then a failure to

meet this contractual duty may result in criminal liability. See R v Pittwood, for
example.

⇒ Assumed duties: People who voluntarily assume responsibility for another’s

welfare will be under a duty to care for him or her; failure to do so will result in
criminal liability. See, for example, the cases of R v Instan, R v Stone & Dobinson,
and R v Gibbins & Proctor.

⇒ Continuing act: This is most easily explained by the case of Fagan v

Metropolitan Police Commissioner.

⇒ Creation of the danger: If a person creates a dangerous situation through his

own fault, he may be under a duty to take reasonable steps to avert that danger,
and may therefore incur criminal liability for failing to do so. See R v Stone &
Dobinson, and R v Miller, for example.

⇒ Novel situations: It seems that the list of exceptions is not necessarily a closed
list. The courts may be willing to create new circumstances under which there is a
duty to act.

INTRODUCTION TO CRIMINAL CAUSATION

⇒ Causation refers to the enquiry as to whether the defendant's conduct (or

omission) caused the harm or damage.
⇒ Usually it is easy to established whether the defendant has caused the
harm/damage. In other words, as the court said in R v Kennedy, it is usually
“common sense”.

⇒ However, sometimes it can be more difficult to establish whether the

defendant has caused the harm/damage. In this situation the judge will direct the
jury to apply special legal rules → they will look at factual and legal
causation (see below).

⇒ Factual causation is the starting point and consists of applying the 'but for' test.

FACTUAL / 'BUT FOR' CAUSATION

⇒ Factual causation is established by applying the 'but for' test. This asks, 'but for
the actions of the defendant, would the result/consequences have occurred?'

 So there must be a factual link between the defendant and the harm caused.
⇒ See, for example, the cases of R v Dyson and R v White. In R v Dyson, the
defendant could be said to have caused the victim’s death, whereas in R v White
the defendant could not be said to have been the factual cause of the victim’s
death.

⇒ Establishing factual causation is not enough, as it is too wide: it would be

absurd, for instance, to argue ‘but for the defendant’s parents giving birth to
him/her, the defendant would not have killed the victim’ and, therefore, find the
defendant’s parents criminally liable. Thus, we must also establish legal
causation.

LEGAL CAUSATION

⇒ Having established causation in fact it is also necessary to establish causation in

law. Causation in fact does not always mean there will be causation in law.

⇒ Causation in law can be established by showing that the defendant's act was

an ‘operating and substantial' cause of the consequence and that there was no
intervening event.
⇒ A substantial cause: the defendant’s acts must be a significant factor in the
final consequence/result i.e. the defendant’s acts must be more than an
“insubstantial or insignificant contribution”.

⇒ An operating cause: the defendant’s acts need not be the sole or even the
main factor in the final consequence/result. See, for example, R v Benge.

Mens Rea
BASIC INTRODUCTION

⇒ This is the mental element of a crime. Different crimes have different mens

rea.

⇒ The standard common law test of criminal liability is expressed in the Latin
phrase actus reus non facit reum nisi mens sit rea, i.e. "the act is not culpable
unless the mind is guilty"

⇒ As a general rule, someone who acted without mental fault is not liable in
criminal law. Exceptions are known as strict liability crimes.

⇒ There are different kinds of mens rea, including intention, recklessness,

negligence, and knowledge. However, it should be noted that these are not the
only kinds of mens rea e.g. dishonesty is the mens rea of certain offences.

⇒ As a general rule, intention is seen as the worst kind of mens rea, recklessness
the second worst, and negligence the least serious.

CRIMINAL INTENTION

INTRODUCTION

⇒ Intention requires the highest degree of fault of all the levels of mens rea. A
person who intends to commit a crime, can generally be said to be more culpable
than one who acts recklessly e.g. if you intentionally kill someone, that would be
generally worse than killing someone recklessly or negligently.

WHAT DOES INTENTION MEAN?

⇒ The general rule is that intention should be given its ordinary meaning.

⇒ In R v Hales [2005] the Court of Appeal said that only in rare cases will the
judge need to give further directions to the jury on intention.

⇒ The ordinary meaning of intention: it is widely accepted that the defendant

intends a consequence of his action if he acts with the aim or purpose of
producing that consequence.

⇒ The jury must be persuaded beyond reasonable doubt that the defendant

intended the result.

DISTINGUISHING INTENTION AND FORESIGHT

⇒ It has been stated by the court that foresight of a consequence is not the same
as intention. However, foresight of a consequence may be used as evidence of
intention e.g. If you throw a cricket ball over a crowd of people you may foresee it
hitting someone, even if that is not your intention. The degree of likelihood is
evidence from which a jury may infer that a defendant intended a result.

⇒ Lord Scarman, for instance, said in Hancock and Shankland [1986] that “the
greater the probability of a consequence the more likely it is that the
consequence was foreseen and... if that consequence was foreseen the greater
the probability is that the consequence was also intended”.

CRIMINAL RECKLESSNESS

INTRODUCTION TO RECKLESSNESS

⇒ In general terms, being reckless refers to the taking of an unjustified risk.

⇒ There has been difficulty in determining what recklessness meant → at one

stage there were two definitions of recklessness, known
as Cunningham recklessness and Caldwell recklessness. However, the House of
Lords has abolished Caldwell recklessness and so there is now only one kind of
recklessness used.
CUNNINGHAM RECKLESSNESS

⇒ There are two elements that need to be shown for Cunningham recklessness:

1. The defendant was aware that there was a risk that his or her conduct would
cause a particular result.
2. The risk was an unreasonable one for the defendant to take.
⇒ In other words, Cunningham recklessness (or subjective recklessness, as it is
sometimes known), will arise if the accused consciously takes an unjustified risk.

⇒ The first element only requires that the accused foresaw that there was a risk;
it does not have to be foreseen as highly likely to occur. Furthermore, the
question is whether the accused foresaw the risk, not whether the risk was
obvious or would have been foreseen by a reasonable person (see, for example, R
v Stephenson).

⇒ The second element is fairly straightforward as it is unlikely for there to exist a

situation where it would be reasonable for the defendant to take a risk that a
person will be injured.

Negligence & gross negligence

NEGLIGENCE

⇒ Sometimes the mens rea of a crime is negligence. However, it should be noted

that negligence plays a minor role in criminal liability: it used to form the basis of
some driving offences but this has largely been superseded by recklessness.

⇒ Negligence uses an objective test: 'did the defendant behave in a way which
was reasonable in the circumstances?' If the defendant behaves in the way in
which a reasonable person would not then he/she is negligent.

 The objective test is strictly applied (McCrone v. Riding [1938] 1 All ER 137).
GROSS NEGLIGENCE

⇒ The main role for negligence in criminal law is with regards to gross

negligence manslaughter.
⇒ Gross negligence essentially means really bad negligence. It must be shown
that the defendant killed negligently and that this negligence was so bad as to
justify a criminal conviction. See, for example, the case of R v Adomako [1994] 3
WLR 288.

⇒ You can also see the topic notes on Gross Negligence Manslaughter here.

INTOXICATION

INTRODUCTION TO INTOXICATION

⇒ Intoxication can be relevant in a criminal case in three ways:

 1) The defendant may for some crimes seek to rely on his intoxication as
evidence he lacked mens rea.
 2) The prosecution may in some crimes seek to rely on the defendant’s
intoxication to establish the defendant’s mens rea.
 3) There are certain crimes that specifically refer to being intoxicated. For
example, it is an offence to drive a vehicle while under the influence of drink
or drugs (Road Traffic Act 1988, s4(2)).
VOLUNTARY AND INVOLUNTARY INTOXICATION

⇒ Voluntary intoxication is self-induced intoxication. Involuntary intoxication is

intoxication caused by by someone or something else (e.g. where your drink is
spiked).

⇒ Alcohol and illegal drugs:

 Where someone voluntarily takes alcohol or illegal drugs - even if that person
thinks the alcohol/drugs will have little effect on them - they are said to be
voluntarily intoxicated. See, for example, the case of R v Allen [1988].
 If the defendant thought he was drinking a non alcoholic drink but it had been
spiked then that would be involuntarily intoxication.
  Where someone is addicted to drugs/alcohol they are said to be voluntarily
intoxicated.
⇒ Legal Substances:

 The defendant is voluntarily intoxicated if he/she is aware of the effects of

taking the legal substance.
 The defendant is voluntarily intoxicated if prescribed medicine is not taken
how it should be. See the case of R v Hardie [1985].
CRIMINAL KNOWLEDGE AND BELIEF

SUMMARY OF CRIMINAL KNOWLEDGE AND BELIEF

⇒ For some offences it must be shown that the defendant did an act knowing or
believing that a certain state of affairs existed.

⇒ It should be noted that in cases where the mens rea is knowledge, careful
consideration should be given to which aspects of the actus reus need to be
known.

 For example, the offence of handling stolen goods requires proof that the
defendant knew or believed that the goods were stolen.
⇒ The difference between knowledge and belief appears simply to be based on
whether the facts known or believed turned to to be true: if they were true then
the defendant knew them to be true, if they were false the defendant believed
them to be true.

TRANSFERRED MENS REA

TRANSFERRED MENS REA SUMMARY

⇒ The doctrine of transferred mens rea (or 'transferred malice' as it is sometimes

known) applies where the mens rea of one offence can be transferred to
another.
  For example, suppose A shoots at B intending to kill B, but misses and hits
and kills C. Transferred malice can operate so that the mens rea of A (i.e.
intention to kill B) can be transferred to the killing of C. Consequently A is
liable for the murder of C, despite the fact that he did not actually intend
to kill C.
⇒ See, for example, the case of R v Latimer (1886).

⇒ Transferred malice does not operate where the crime which occurred was
different from that intended. See, for example, R v Pembliton (1874).

COINCIDENCE OF ACTUS REUS AND MENS REA

SUMMARY

⇒ It is a principle of English law that the actus reus and mens rea must coincide.

That is they must happen at the same time. This is sometimes referred to as the
contemporaneity rule or the coincidence of actus reus and mens rea.

⇒ However, the courts often apply a flexible approach in holding that the actus
reus is a continuing act. See, for example, the case of Thabo-Meli v R [1954].

⇒ Also see the case of Fagan v Metropolitan Police Commissioner [1969] where

the defendant had committed the actus reus of an offence (without mens rea),
but at a later point developed the mens rea.

INTRODUCTION TO STRICT LIABILITY

BASIC INTRODUCTION TO STRICT LIABILITY

⇒ Offences of strict liability require proof that the defendant performed the

prohibited conduct, but do not require proof that the defendant was
blameworthy. See, for example, the case of Harrow London BC v Shah [2000].

⇒ Nearly half of all criminal offences are offences of strict liability. Most of these
strict liability offences are minor offences.
⇒ Even where an offence is one of strict liability defences such as duress or self
defence may still apply.

INTRODUCTION

⇒ Most strict liability offences are found in statutes.

⇒ If Parliament has not included a mens rea requirement for a statutory offence
the court has to decide whether to interpret the crime as one of strict liability or
to read in a mens rea requirement.

⇒ The cases of B (A Minor) v DPP [2000] and R v K [2001] have reinforced the

common law that in interpreting statutory offences there is a presumption against
strict liability and in favour of mens rea.

⇒ As a result of these decisions the court will read mens rea into a statue unless

either:

 There is clear wording in the statute indicating that the offence is to be one of
strict liability; or
 There is a 'compellingly clear' inference that the offence is to be one of strict
liability.
WHEN WILL A COURT NOT PRESUME MENS REA?

⇒ There are a number of factors a court will take into account in deciding
whether there is a 'compellingly clear' inference that the offence is to be one of
strict liability:

 If some sections of a particular statute refer to mens rea and other parts do

not, the parts WITHOUT reference to mens rea are more likely to be strict
liability.
 The court will look at similar offences to determine whether the offence in
question is one of strict liability or not.
  The court will consider the social context of the offence → occasionally the
court will look to see whether the offence is intended to be 'truly criminal'. If
the offence is NOT intended to be 'truly criminal' (and, instead, intended to be
a regulatory offence) the offence is more likely to be one of strict liability.
STRICT LIABILITY AND POSSESSION OFFENCES

INTRODUCTION TO POSSESSION OFFENCES

⇒ Several statutory offences involve possession of, for example, offensive

weapons, drugs, and articles for use in burglary, theft, or deception.

⇒ Strictly speaking these are not strict liability offences, but their mens

rea requirement can be minimal and so are analogous (i.e. very similar) to them.

Homicide
MURDER

ACTUS REUS OF MURDER

⇒ The actus reus of murder is the unlawful killing of another person in the

Queen’s peace.

⇒ A person: the victim of homicide must be a person.

 According to law an unborn child cannot be a victim of murder/manslaughter

because they are not yet people (Vo v France (2006)).
⇒ Unlawfully: If the defendant is able to rely on the defence of self-defence
he/she has not been killed unlawfully (R v Beckford [1988]).

⇒ Queen’s peace: It must be shown that the killing took place in the Queen’s
peace i.e. this is why killing someone at war is not murder.

⇒ Killed: the defendant must have caused the death of the victim. It must be
shown that the defendant sped up the death of the victim by more than a
negligible amount (R v Adams [1957]).
MENS REA OF MURDER

⇒ The mens rea of murder is an intention to kill or cause grievous bodily harm.

⇒ Intention: see the definition of intention here.

⇒ Kill or grievous bodily harm to the victim: Grievous Bodily Harm (GBH) means
really serious harm (DPP v Smith [1961]). A harm can be a GBH even though it
would not pose a risk to the life of the victim (R v Bollom [2003]). Only an
intention to kill or cause GBH is needed to establish the mens rea of murder (R v
Vickers [1957]).

R V ADAMS [1957] CRIM LR 365

Facts: The defendant, Dr Adams, administered a lethal dose of pain killers to a

terminally ill patient.

Held: The defendant was acquitted of murder. Devlin J stated that "a doctor is

entitled to do all that is proper and necessary to relieve pain even if the measures
he takes may incidentally shorten life"

R V BENGE (1865) (PRE-SCJA 1873)

Facts: The defendant, a foreman plate-layer, misread the timetable as to when

the train was to arrive. A workman was sent ahead to signal an approaching train
to stop, but instead of going 1000 yards ahead he went only 540 yards, leaving
less time for a train to stop. As a result, the train did not stop before reaching the
area where the works were taking place, resulting in the train crashing.

The defendant argued that, although he was negligent, the accident could not
have occurred without the negligence of the flagman in not going far enough up
the tracks and the failure of the engine-driver to pay careful attention.

Held: The defendant was found to be guilty. It was irrelevant that the crash might
have been avoided if other persons had not also been negligent; the defendant
had been the material and substantial cause of the accident.
INTRODUCTION TO MANSLAUGHTER

INTRODUCTION TO MANSLAUGHTER

⇒ Manslaughter is a less serious form of homicide than murder. There are two

main kinds of manslaughter:

 Voluntary manslaughter: These are killings which have the actus

reus and mens rea of murder, but due to existing circumstances it should
not be called murder. For example, a defendant who successfully
pleads loss of control, diminished responsibility, or suicide pact to a
charge of murder will be guilty of voluntary manslaughter.
 Involuntary manslaughter: These are killings where the mens rea of
murder (intent to kill or cause Grievous Bodily Harm) does not exist, but
there is sufficient fault to justify criminal liability. Examples of involuntary
manslaughter include, reckless manslaughter, gross negligence
manslaughter, and constructive (or unlawful act) manslaughter.
LOSS OF CONTROL

DEFINITION OF LOSS OF CONTROL

⇒ Loss of control is a defence only to murder, and if successful the defendant will
still be guilty of manslaughter.

⇒ The defendant must show (s.54 of the Coroners and Justice Act 2009):

 (1) He or she had lost self-control as a result of a ‘qualifying trigger’; AND

 (2) A person of the defendant’s age and sex with a normal degree of
tolerance and self-restraint would have reacted in the same way
 Changes to legislation:

 Coroners and Justice Act 2009, Section 54 is up to date with all changes
known to be in force on or before 03 December 2022. There are changes
 that may be brought into force at a future date. Changes that have been
made appear in the content and are referenced with annotations.
 View outstanding changesstatus warnings
 54Partial defence to murder: loss of control
 (1)Where a person (“D”) kills or is a party to the killing of another (“V”), D is
not to be convicted of murder if—
 (a)D's acts and omissions in doing or being a party to the killing resulted
from D's loss of self-control,
 (b)the loss of self-control had a qualifying trigger, and
 (c)a person of D's sex and age, with a normal degree of tolerance and self-
restraint and in the circumstances of D, might have reacted in the same or
in a similar way to D.
 (2)For the purposes of subsection (1)(a), it does not matter whether or not
the loss of control was sudden.
 (3)In subsection (1)(c) the reference to “the circumstances of D” is a
reference to all of D's circumstances other than those whose only relevance
to D's conduct is that they bear on D's general capacity for tolerance or self-
restraint.
 (4)Subsection (1) does not apply if, in doing or being a party to the killing, D
acted in a considered desire for revenge.
 (5)On a charge of murder, if sufficient evidence is adduced to raise an issue
with respect to the defence under subsection (1), the jury must assume
that the defence is satisfied unless the prosecution proves beyond
reasonable doubt that it is not.
 (6)For the purposes of subsection (5), sufficient evidence is adduced to
raise an issue with respect to the defence if evidence is adduced on which,
in the opinion of the trial judge, a jury, properly directed, could reasonably
conclude that the defence might apply.
 (7)A person who, but for this section, would be liable to be convicted of
murder is liable instead to be convicted of manslaughter.
 (8)The fact that one party to a killing is by virtue of this section not liable to
be convicted of murder does not affect the question whether the killing
amounted to murder in the case of any other party to it.
 Commencement Information
 I1S. 54 in force at 4.10.2010 for E.W. by S.I. 2010/816, art. 6(a)
 I2S. 54 in force at 1.6.2011 for N.I. by S.R. 2011/182, art. 3(b)
(1) THE DEFENDANT LOST SELF-CONTROL AS A RESULT OF A ‘QUALIFYING
TRIGGER’

⇒ Whether the defendant lost self-control as a result of a qualifying trigger is a

subjective question: the jury need to look into the defendant's own mind
and not at whether the reasonable person would lose self-control.

⇒ There are three elements that will be explored below:

 The defendant must lose their self-control;

 The defendant must lose their self-control as a result of a qualifying trigger;
 The definition of a qualifying trigger.
THE DEFENDANT MUST LOSE THEIR SELF-CONTROL

⇒ If evidence shows that the attack had been pre-planned then it is unlikely the
defendant will be able to rely on this defence (R v Serrano 2006).

⇒ s.54(4) of the Coroners and Justice Act 2009 says you cannot use the defence
of loss of control if the act was an act of revenge.

(2) WOULD A PERSON WITH NORMAL TOLERANCE AND SELF-RESTRAINT HAVE

ACTED AS THE DEFENDANT DID?

⇒ Not only must there be a loss of control due to a qualifying trigger, it must be
proved that a "person of the defendant's sex and age, with a normal degree of
tolerance and self-restraint and in the circumstances of the defendant, might
have reacted in the same or in a similar way to the defendant” (an objective
test).

⇒ ”Normal degree of tolerance and self-restraint”:

 The defendant is compared to that of the reasonable person. So if the

defendant is seen to have lower levels of tolerance/self-restraint compared to
 the average man (even because of mental illness) it does not matter; his/her
actions will still be compared to that of the average person.
 Such a defendant (i.e. a defendant with unusually low levels of tolerance/self-
constraint) will struggle to succeed with this defence, but may succeed with
the defence of diminished responsibility.
⇒ ”In the circumstances of the defendant”:

 s.54(1)(c) of the Coroners and Justice Act 2009 states that the jury must look
at the the defendant's circumstances/situation.
 For example, calling the defendant a 'whore' may seem fairly minor but, in
light of the defendant's history/circumstances, may be a grave wrong against
the defendant (e.g. if the defendant has a history of being repeatedly sexually
abused).
 Occasionally the court have seen a series of minor ‘cumulative provocations’
which has caused the defendant to lose self control; thus a defendant may rely
on loss of control where they have lost control (i.e. they simply can take no
more) following a series of minor wrongs against them.
⇒ ”Age and sex”:

 This questions whether a person of the same age/sex of the defendant would
have reacted in the same way.
 It seems like a fair requirement to take into account the age of the defendant,
but it’s less obvious why the sex of the defendant is a requirement to take into
account → it appears to imply men and women have different degrees of self-
restraint and tolerance.
LOSS OF CONTROL AND VICTIMS OF DOMESTIC VIOLENCE

⇒ One matter that has greatly troubled the courts in the old law of provocation
were cases where a victim of domestic violence had killed their abusive spouses.
⇒ See the case of R v Ahluwalia [1992] to see how such cases were dealt with
under the old law.

 Under the new law although Mrs Ahluwalia would probably be able to show
there was a qualifying trigger, she may find it harder to prove her loss of self
control was due to that qualifying trigger.
 The jury would also need to determine whether someone of Mrs Ahluwalia’s
age and sex would have done the same thing.
DIMINISHED RESPONSIBILITY

DEFINITION OF DIMINISHED RESPONSIBILITY

⇒ Diminished responsibility is a defence only to murder and, if successful,

reduces the charge to manslaughter. It is defined in s2(1) of Homicide Act 1957,
and amended by the Coroners and Justice Act 2009.

⇒ The defendant must show that he/she suffered from an abnormality of

mental functioning, arising from a recognised medical condition, which provides
an explanation for committing the killing. It must be shown that the
abnormality substantially impaired his/her ability to understand the nature of
his/her conduct, form a rational judgment, and exercise self-control.

⇒ The burden of proof is on the defendant when raising diminished responsibility

(i.e. the defendant has to prove diminished responsibility), but only on a balance
of probabilities (i.e. the defendant needs to prove diminished responsibility is
more likely than not).

⇒ Often the court will not challenge a defendant raising diminished responsibility,
but the Court of Appeal in R v Vinagre (1979) said the prosecution should only
leave the defendant without challenge if there is sufficient evidence of his mental
abnormality.

Homicide Act 1957

Persons suffering from diminished responsibility.

[F1(1)A person (“D”) who kills or is a party to the killing of another is not to be
convicted of murder if D was suffering from an abnormality of mental functioning
which—
(a)arose from a recognised medical condition,
(b)substantially impaired D's ability to do one or more of the things mentioned in
subsection (1A), and
(c)provides an explanation for D's acts and omissions in doing or being a party to
the killing.
(1A)Those things are—
(a)to understand the nature of D's conduct;
(b)to form a rational judgment;
(c)to exercise self-control.
(1B)For the purposes of subsection (1)(c), an abnormality of mental functioning
provides an explanation for D's conduct if it causes, or is a significant contributory
factor in causing, D to carry out that conduct.]
(2)On a charge of murder, it shall be for the defence to prove that the person
charged is by virtue of this section not liable to be convicted of murder.
(3)A person who but for this section would be liable, whether as principal or as
accessory, to be convicted of murder shall be liable instead to be convicted of
manslaughter.
(4)The fact that one party to a killing is by virtue of this section not liable to be
convicted of murder shall not affect the question whether the killing amounted to
murder in the case of any other party to it.
Textual Amendments
F1S. 2(1)-(1B) substituted (4.10.2010) for s. 2(1) by Coroners and Justice Act 2009
(c. 25), ss. 52(1), 182(5) (with s. 180, Sch. 22 para. 7); S.I. 2010/816, art. 5(a)

R V VINAGRE [1979] 69 CR APP R 104

Facts: The defendant (D) killed his wife (V) after suspecting her of having an affair.
At the defendant’s trial for murder he raised evidence to suggest he suffered from
'Othello Syndrome’, which involves extreme feelings of jealousy without any real
foundation.

Held: CONTD's plea was successful and got 7 years manslaughter by reason of
diminished responsibility. However, in the Court of Appeal, Lord Lawton was
unhappy with the verdict referring to D's evidence as 'flimsy' and incredibly unfair
on the victim.

⇒ See the topic notes on diminished responsibility here.

S U I C I D E P A C T S , M E R C Y K IL L I N G S , A N D E U T H A N A S I A

SUICIDE PACTS

⇒ Suicide pact is a defence only to murder.

⇒ Section 4 of the Homicide Act 1957 provides that if the defendant kills another
in pursuance of a suicide pact he or she is guilty of manslaughter, not murder.

⇒ An example of a suicide pact is where a husband and wife agree that they will
die together. The plan is that the husband will shoot his wife and then turn the
gun on himself. He kills his wife but someone stops the husband killing himself, or
he loses his nerve.

⇒ The Law commission has recommended the abolition of this defence to murder
(Law Commission Paper No 177).

MERCY KILLINGS AND EUTHANASIA

⇒ Mercy killings and euthanasia are widely used terms to describe situations
where the defendant kills a person who is suffering from a terminal illness.

⇒ The law is clear here: there is no defence of mercy killing in criminal law. It is

murder to do an act which significantly shortens a person’s life, even if that
person is in agony and asks to be killed. See, for example, the case of R v Inglis
[2011].
R V INGLIS [2011] 1 WLR 1110

Facts: The appellant appealed against her conviction for murdering her son
Thomas. Thomas had suffered serious head injuries when he had fallen out of an
ambulance. He had undergone lifesaving surgery which removed part of his skull
which resulted in severe head and facial disfigurement. He was in a vegetative
state but doctors were hopeful that he would make a recovery. The appellant,
however, was convinced that his vegetative state was permanent. She became
obsessive and believed he was in pain and wanted to end his suffering. She
injected him with a lethal dose of heroin with the intention to kill, which did kill
her son. She appealed against her conviction.

Held: Her conviction was upheld: the lethal injection that killed her son was seen
to be pre-meditated so could not raise the defence of provocation (under the old
law) or, as it would be now, the defence of loss of control.

CONSTRUCTIVE MANSLAUGHTER

DEFINITION OF CONSTRUCTIVE MANSLAUGHTER

⇒ To be guilty of constructive manslaughter the defendant must be proved to

have performed an act which was:

 (1) Unlawful;
 (1) Dangerous; and
 (3) Caused the death of the victim.
⇒ The House of Lords undertook a thorough examination of constructive
manslaughter in Attorney-General’s Reference (No 3 of 1994) [1998].

AN UNLAWFUL ACT

⇒ The defendant must have committed a criminal act, but violence is not

essential (see, for example, the case of R v Goodfellow (1986)).
⇒ The mens rea and actus reus of the criminal act must be proved (R v Slingsby
[1995]). Also see the case of R v Dhaliwal [2006].

⇒ Note: it is generally accepted that a strict liability offence or an offence of

negligence (e.g. dangerous driving) cannot form the basis of constructive
manslaughter (Andrews v DPP [1937]).

⇒ There has been debate over whether a criminal omission can form the basis of
constructive manslaughter. R v Senior [1899] suggests a criminal ommission can
form the basis of constructive manslaughter, but R v Lowe [1973] suggests it
cannot. However, where there has been a criminal omission often the defence
of gross negligence manslaughter is raised.

ATTORNEY-GENERAL'S REFERENCE (NO. 3 OF 1994) [1997] 3 ALL ER 936

Facts: The defendant stabbed his pregnant girlfriend in the face, abdomen and
back when she was 22-24 weeks pregnant. 17 days after the incident the woman
went into premature labour and gave birth to a live baby. The baby died 121 days
later due to the premature birth. The defendant was charged with wounding and
GBH on the mother and convicted for which he received a sentence of 4 years. On
the death of the baby he was also charged with murder and manslaughter.

Held: The House of Lords said he could not be charged with murder of the baby.
However, his actions could amount to constructive manslaughter. There was no
requirement that the foetus be classed as a human being provided causation was
proved. The attack on the mother was an unlawful act which caused the death of
the baby. There is no requirement under constructive manslaughter that the
unlawful act is aimed at the actual victim or that the unlawful act was directed at
a human being.

⇒ See the topic notes on constructive manslaughter here.

R V CAREY [2006] EWCA CRIM 17

Facts: Aimee Wellock, aged 15, and three friends went out for an early evening
walk. They came across the three appellants who had been drinking. The
appellants started making fun of Aimee and her friends and then became
physically violent. Aimee had her head pulled back and was punched in the face.
Two passing motorcyclists stopped and shouted at the appellants and they ran
off. Aimee then ran off. She ran just over 100 metres but then unfortunately she
collapsed and died. It transpired that she had a severely diseased heart and the
run had induced a ventricular fibrillation which resulted in her death. The three
appellants were convicted of affray and constructive manslaughter. They
appealed against the manslaughter conviction.

Held: The manslaughter convictions were quashed. The physical assault on Aimee
was not the cause of death. The cause of death was Aimee running away in fear.

⇒ See the topic notes on constructive manslaughter here.

R V CATO (1976) 62 CR APP R 415

Facts: The appellant purchased some heroin took it to his home which he shared
with Anthony Farmer and two others. He invited them all to use the heroin. They
each prepared their own solution and then paired off to inject each other. Farmer
prepared his own solution and the appellant injected him. This was repeated
during the night. The following day Farmer was found dead. The appellant was
convicted of manslaughter and administering a noxious thing under s.23 OAPA
1861.

Held: Appeal was dismissed. The Conviction for manslaughter was upheld. The
difficulty intros case was that it was said that the unlawful act (needed in
constructive manslaughter cases) was possession, but this seems hard to support;
it would have been better to have said the injecting of the drugs was the unlawful
act as it poisoned the victim contrary to s.23 Offences Against the Persons Act
1861.

⇒ See the topic notes on constructive manslaughter here.

R V DAWSON [1985] 81 CR APP R 150

Facts: The defendant and two other men carried out an attempted robbery at a
petrol station. The cashier at the petrol station was a 60 year old man who,
unknown to the defendants, suffered from a heart disease. Dawson had pointed a
replica handgun at the victim and his partner had banged a pick-axe handle on the
counter. Money was demanded, but the victim pressed the alarm button and the
defendants fled empty handed. Shortly afterwards the victim collapsed and died
from a heart attack.

Held: The defendants were not convicted of manslaughter. As the reasonable

person in the defendants’ position during the attack would not have known of the
man’s heart condition they cannot be guilty; in other words, the reasonable
person would not see their actions as dangerous.

⇒ See the topic notes on constructive manslaughter here.

R V DHALIWAL [2006] EWCA CRIM 113

Facts: The defendant had verbally abused his wife for many years. The wife
committed suicide as a result of this abuse.

Held: The defendant was not guilty as he did not cause the death of his wife;
whilst mental harm by way of a recognised mental condition can be classed as
harm, mere emotions are not enough to qualify. The defendant’s wife did not
commit suicide as an immediate and reasonable response to the verbal abuse,
but acted voluntarily.

⇒ See the topic notes on constructive manslaughter here.

R V GOODFELLOW (1986) 83 CR APP R 237

Facts: The appellant had been harassed by two men and wished to move from his
council accommodation. In order to get re-housed he set fire to his house making
it look as if it had been petrol bombed. Unfortunately his wife, son and son's
girlfriend all died in the fire.

Held: His conviction for manslaughter was upheld. There was no requirement that
the unlawful act was directed at the victims nor that it was directed at a person.

⇒ See the topic notes on constructive manslaughter here.

ANDREWS V DPP [1937] AC 576

Facts: The appellant drove a van above the speed limit and overtook another car.
As he did so he struck a pedestrian and killed him.

Held: His conviction for manslaughter was upheld. It is quite difficult to interpret
the judgement, but seems to suggest strict liability offences and cases of
negligence cannot exist in constructive manslaughter.

⇒ See the topic notes on constructive manslaughter here.

GROSS NEGLIGENCE MANSLAUGHTER

DEFINITION OF GROSS NEGLIGENCE MANSLAUGHTER

⇒ For gross negligence manslaughter it must be shown that:

 (1) The defendant owed the victim a duty of care;

 (2) The defendant breached that duty of care;
 (3) The breach of the duty caused the death of the victim;
 (4) The breach was so gross as to justify a criminal conviction.
⇒ The leading case on gross negligence manslaughter is the House of Lords’
decision in R v Adomako [1995].

⇒ Also see the cases of R v Stone and Dobinson [1977] and R v Prentice [1993].

(1) THE DEFENDANT OWED THE VICTIM A DUTY OF CARE

⇒ The definition of 'duty of care' is the same as it is given in the tort of negligence
(R v Wacker [2003]) i.e. you owe a duty of care to anyone who may be
foreseeably harmed by your action. For example, a doctor owes a duty of care to
his/her patients as seen in R v Adomako [1995].

⇒ It is for the judge, NOT the jury, to decide if there is a duty of care (R v Evans
[2009]).
(2) THE DEFENDANT BREACHED THAT DUTY OF CARE

⇒ It must be shown that the defendant breached his/her duty of care to the
victim.

⇒ In deciding this, the jury must consider whether the defendant's actions were
less than what a reasonable person would be expected to do.

⇒ If, for example, the defendant is a specialist at something then they must act as
the reasonable specialist would e.g. in R v Adomako [1995] the defendant
(Adomako) must act no less than what is expected of a reasonable anaesthetist.

R V ADOMAKO [1994] 3 WLR 288

Facts: The appellant was an anaesthetist in charge of a patient during an eye

operation. During the operation an oxygen pipe became disconnected and the
patient died. The appellant failed to notice or respond to obvious signs of
disconnection. The jury convicted him of gross negligence manslaughter.

Held: His conviction for gross negligence manslaughter was upheld by the House
of Lords.

⇒ Lord MacKay LC: “…gross negligence…depends…on the seriousness of the

breach of the duty committed by the defendant in all the circumstances in which
he was placed when it occurred and 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 the jury’s judgment to a criminal act or omission”.

⇒ See the topic notes on gross negligence manslaughter here.

R V HAYWARD (1908) 21 COX 692

Facts: The defendant chased his wife out of the house shouting threats at her. She
collapsed and died. He did not physically touch her. She was suffering from a rare
thyroid condition which could lead to death where physical exertion was
accompanied by fright and panic. Both the defendant and his wife were unaware
she had this condition.
Held: The defendant was liable for constructive manslaughter as his unlawful act
(assault) caused death. The egg shell (thin) skull rule applied (see notes on
this here). He was therefore fully liable despite the fact an ordinary person of
reasonable fortitude would not have died in such circumstances.

⇒ See the topic notes on gross negligence manslaughter here.

R V STONE AND DOBINSON [1977] 2 ALL ER 341

Facts: Ted Stone was 67, totally blind, partially deaf had no appreciable sense of
smell and was of low intelligence. He lived with his housekeeper and mistress of 8
years, Gwendolyn Dobinson aged 43 who was described as ineffectual and
inadequate. Ted's sister Fanny came to live with them. She had previously lived
with another sister but had fallen out with her. She had mental problems and was
suffering from anorexia nervosa. Ted and Gwendolyn took her in and agreed to
look after her. However, Fanny's condition deteriorated and she was found dead
in her bed in appalling conditions.

Held: Stone and Dobinson were found liable for her death (i.e. they were
convicted of gross negligence manslaughter) as they had assumed a responsibility
to her by taking her in. They failed to look after her and ensure she got the
medical help she needed

⇒ See the topic notes on gross negligence manslaughter here.

R V PRENTICE [1993] 4 ALL ER 935

Facts: A Leukaemia patient came into hospital and required a lumber puncture.
Hospital regulations said that one doctor by themselves could not do that; there
must be a supervising doctor. However, on this occasion, there was no consultant
available; two junior doctors were the only people available, even though they
had no experience of this. The junior doctors said they could not do this as the
were not trained, but were told they had to because they were the only available
people. Everything went wrong and the patient suffered a slow agonising death.
Each were charged with gross negligence manslaughter and they appealed.
Held: The Court of Appeal said the jury is entitled to consider the circumstances in
which the defendant found himself in; therefore, if the jury think the
circumstances are relevant they may acquit the defendant. Here, Prentice did get
his conviction quashed. Note: the Corporate Manslaughter Act now allows for
corporations/organisation to be convicted of gross negligence but serious
management failure must be shown.

SUBJECTIVE RECKLESS MANSLAUGHTER

DEFINITION

⇒ Subjective reckless manslaughter is where the defendant killed the victim

foreseeing a risk of death or personal injury.

⇒ Subjective reckless manslaughter is rare because whenever there is subjective

reckless manslaughter it will be possible to charge constructive or gross
negligence manslaughter, both of which are easier to prove.

Assault and Battery

INTRODUCTION TO NON FATAL OFFENCES

INTRODUCTION

⇒ The 1861 Offences Against the Person Act combines all the non-fatal offences.

⇒ There are varying degrees of seriousness of the non-fatal offences against the

person: Common Assault is the least serious and the section 18 offence of
Grievous Bodily Harm is at the top of the pile in seriousness.

⇒ You do not look at non fatal offenses against the person where someone has
died, unless you are trying to find the crime in unlawful act manslaughter.

ASSAULT AND BATTERY

INTRODUCTION
⇒ Technically assault and batter are two separate crimes: in brief, a battery
involves an unlawful and unwanted contact with the body of another, while an
assault involves causing another to apprehend the possibility of imminent
unlawful contact.

1) Assault

DEFINITION

⇒ The definition of assault is as follows:

 Actus Reus: the defendant caused the victim to apprehend imminent

unlawful violence.
 Mens Rea: the defendant intended or was reckless that the victim would
apprehend imminent unlawful force.
⇒ Assault is a common law offence, so it is not explicitly defined in the Offences
Against The Person Act 1861.

⇒ Words can constitute an assault, as seen in the case of R v Ireland [1998].

APPREHENSION OF FORCE

⇒ If the victim suffers no apprehension of force there cannot be an assault.

⇒ So, if the defendant utters horrible threats to the victim, which do not unsettle
the victim at all (for example, the victim does not believe the threats) there can
be no assault.

R V DICA [2004] 3 ALL ER 593

Facts: The defendant was told that he was HIV positive. He proceeded to have
unprotected sex with two women.

Held: The defendant was liable under section 20 of the Offences Against the
Person Act for inflicting grievous bodily harm. Recklessly having unprotected sex
after HIV diagnosis, resulting in the infliction of really serious harm (HIV), is
enough to constitute a section 20 conviction.

R V DONOVAN [1934] KB 498

Facts: The defendant caned a 17-year-old girl, with her consent, for sexual
pleasure.

Held: The defendant was not guilty of causing actual bodily harm.

DPP V K (A MINOR) [1990] 1 WLR 1067

Facts: A 15 year old school boy took some acid from a science lesson. He placed it
into a hot air hand drier in the boys' toilets. Another pupil came into the toilet
and used the hand drier. The nozzle was pointing upwards and acid was squirted
into his face causing permanent scars. The defendant was charged under s.47
Offences Against the Persons Act 1867.

Held: The application of force need not be directly applied to be guilty of battery.

DPP V SMITH [2006] EWHC 94

Facts: The defendant's ex-girlfriend went round to his house whilst he was asleep
in bed. She went up to his bedroom and woke him up. He pushed her down on to
the bed, sat on top of her and cut off her hair which was in a pony tail. He did not
physically cause any harm to her, other than the cutting of the hair. She sustained
no bruises, scratches or cuts. Whilst she was emotionally upset and distressed by
the experience there was no evidence or suggestion of psychiatric injury.

Held: The cutting of hair amounted to actual bodily harm.

R V DUME [1986]

Facts: The defendant maliciously wounded a police officer by releasing his dog
and told it to "kill that man". The dog went up to the claimant, knocked him over,
and bit him on the leg. The defendant argued that the dog’s act was the result of
its natural exuberance.
Held: It was an assault for the defendant to threaten to set an animal on the
victim.

FAGAN V MPC [1969] 1 QB 439

Facts: A policeman was directing the defendant to park his car. The defendant
accidentally drove onto the policeman's foot. The policeman shouted at him to
get off. The defendant refused to move.

Held: Fagan committed an assault. Although there was no intent in parking on the
foot of the officer, the omission to move was an intentional, therefore the
omission was classed as an act.

HAYSTEAD V DPP [2000]

Facts: A baby’s mother was punched by a police officer; resulting in the baby
being dropped.

Held: The police officer was found guilty of battery.

R V IRELAND [1998] 3 WLR 534

Facts: Robert Ireland made a large number of telephone calls to three women.
When they answered he remained silent. The women as a result suffered
psychological harm. He pleaded guilty to a charge of assault occassioning actual
bodily harm, contrary to section 47 of the Offences Against the Person Act 1861,
following he direction of the trial judge that the facts of the case could justify such
a conviction. He appealed on the basis that the admitted facts were incapable of
amounting to the offence.

Held: His conviction was upheld. Silence can amount to an assault and psychiatric
injury can amount to bodily harm.

R V KONZANI [2005] EWCA CRIM 706

Facts: Konzani was convicted of inflicting grievous bodily harm on three different
women, contrry to section 20 of the Offences Against the Person Act. He had
been warned that the was HIV positive and was aware of the risk that by having
unprotected sexual intercourse he could infect his partners. Nevertheless he had
sexual relations with three women without informing them of his HIV status.

LOGDON V DPP [1976] CRIM LR 121

Facts: The defendant pointed an imitation gun at a woman in jest. She was
terrified. The defendant then told her it wasn't real.

Held: An assault had been committed as the victim had apprehended immediate
unlawful personal violence and the defendant was reckless as to whether she
would apprehend such violence.

R V MARTIN (1881) 8 QBD 54

Facts: The defendant placed an iron bar across the exit of a theatre and then
shouted fire. Several people were severely injured. He was charged under s.20
Offences Against the Persons Act 1861. He contended that the word inflict
required the direct application of force.

Held: Indirect application of force was sufficient for a conviction under s.20.

R V THOMAS (1985)

Facts: The defendant, a school caretaker, assaulted a 12-year-old after taking hold
of the hem of her skirt.

Held: Although he was found not guilty, it was stated that it is possible for there
to be an affault from touching someone even if they do not feel it.

ASSAULT OCCASSIONING ACTUAL BODILY HARM

⇒ Section 47 of the Offences Against the Person Act 1861 states: “Whosoever

shall be convicted upon an indictment of any assault occasioning actual bodily
harm (ABH) shall be liable... to be imprisoned for any term not exceeding five
years”

⇒ The definition of an assault occasioning actual bodily harm (ABH):

  Actus Reus: the defendant must commit an assault or battery which causes
the victim to suffer actual bodily harm.
 Mens Rea: the defendant must intend or be reckless as to the assault or
battery. Note: there is NO need to show that the defendant intended or
foresaw actual bodily harm.
⇒ The offence of ABH can be broken down into three elements:

 (1) It must be shown that there was an assault or battery.

 (2) The victim must suffer ABH.
 (3) It must be shown that the ABH was occasioned by the common assault or
battery of the defendant.
(1) IT MUST BE SHOWN THAT THERE WAS AN ASSAULT OR BATTERY

⇒ For there to be an assault occasioning ABH you must first demonstrate there

was either an assault or battery.

⇒ Both the mens rea and actus reus of the assault or battery must be shown.

(2) THE VICTIM MUST SUFFER ABH

⇒ ABH has been defined as "any hurt or injury calculated to interfere with the
health or comfort" of the victim (R v Donovan [1934])

⇒ The harm need not be permanent, but it should "not be so trivial as to be

wholly insignificant" (Hobhouse LJ in R v Chan-Fook [1994]).

 For example, bruises, grazes, or breaking teeth could all be included within
ABH. See, for example, the case of DPP v Smith [2006].
⇒ R v Ireland [1998] demonstrated that causing someone to suffer psychological
injuries could be included within the term ABH, but only if they were medically
recognised conditions which involved more than fear, panic, or distress (R v
Burstow [1998]).

R V DICA [2004] 3 ALL ER 593

Facts: The defendant was told that he was HIV positive. He proceeded to have
unprotected sex with two women.

Held: The defendant was liable under section 20 of the Offences Against the
Person Act for inflicting grievous bodily harm. Recklessly having unprotected sex
after HIV diagnosis, resulting in the infliction of really serious harm (HIV), is
enough to constitute a section 20 conviction.

R V DONOVAN [1934] KB 498

Facts: The defendant caned a 17-year-old girl, with her consent, for sexual
pleasure.

Held: The defendant was not guilty of causing actual bodily harm.

DPP V K (A MINOR) [1990] 1 WLR 1067

Facts: A 15 year old school boy took some acid from a science lesson. He placed it
into a hot air hand drier in the boys' toilets. Another pupil came into the toilet
and used the hand drier. The nozzle was pointing upwards and acid was squirted
into his face causing permanent scars. The defendant was charged under s.47
Offences Against the Persons Act 1867.

Held: The application of force need not be directly applied to be guilty of battery.

DPP V SMITH [2006] EWHC 94

Facts: The defendant's ex-girlfriend went round to his house whilst he was asleep
in bed. She went up to his bedroom and woke him up. He pushed her down on to
the bed, sat on top of her and cut off her hair which was in a pony tail. He did not
physically cause any harm to her, other than the cutting of the hair. She sustained
no bruises, scratches or cuts. Whilst she was emotionally upset and distressed by
the experience there was no evidence or suggestion of psychiatric injury.

Held: The cutting of hair amounted to actual bodily harm.

R V DUME [1986]
Facts: The defendant maliciously wounded a police officer by releasing his dog
and told it to "kill that man". The dog went up to the claimant, knocked him over,
and bit him on the leg. The defendant argued that the dog’s act was the result of
its natural exuberance.

Held: It was an assault for the defendant to threaten to set an animal on the
victim.

FAGAN V MPC [1969] 1 QB 439

Facts: A policeman was directing the defendant to park his car. The defendant
accidentally drove onto the policeman's foot. The policeman shouted at him to
get off. The defendant refused to move.

Held: Fagan committed an assault. Although there was no intent in parking on the
foot of the officer, the omission to move was an intentional, therefore the
omission was classed as an act.

HAYSTEAD V DPP [2000]

Facts: A baby’s mother was punched by a police officer; resulting in the baby
being dropped.

Held: The police officer was found guilty of battery.

R V IRELAND [1998] 3 WLR 534

Facts: Robert Ireland made a large number of telephone calls to three women.
When they answered he remained silent. The women as a result suffered
psychological harm. He pleaded guilty to a charge of assault occassioning actual
bodily harm, contrary to section 47 of the Offences Against the Person Act 1861,
following he direction of the trial judge that the facts of the case could justify such
a conviction. He appealed on the basis that the admitted facts were incapable of
amounting to the offence.

Held: His conviction was upheld. Silence can amount to an assault and psychiatric
injury can amount to bodily harm.
R V KONZANI [2005] EWCA CRIM 706

Facts: Konzani was convicted of inflicting grievous bodily harm on three different
women, contrry to section 20 of the Offences Against the Person Act. He had
been warned that the was HIV positive and was aware of the risk that by having
unprotected sexual intercourse he could infect his partners. Nevertheless he had
sexual relations with three women without informing them of his HIV status.

LOGDON V DPP [1976] CRIM LR 121

Facts: The defendant pointed an imitation gun at a woman in jest. She was
terrified. The defendant then told her it wasn't real.

Held: An assault had been committed as the victim had apprehended immediate
unlawful personal violence and the defendant was reckless as to whether she
would apprehend such violence.

R V MARTIN (1881) 8 QBD 54

Facts: The defendant placed an iron bar across the exit of a theatre and then
shouted fire. Several people were severely injured. He was charged under s.20
Offences Against the Persons Act 1861. He contended that the word inflict
required the direct application of force.

Held: Indirect application of force was sufficient for a conviction under s.20.

R V THOMAS (1985)

Facts: The defendant, a school caretaker, assaulted a 12-year-old after taking hold
of the hem of her skirt.

Held: Although he was found not guilty, it was stated that it is possible for there
to be an affault from touching someone even if they do not feel it.

R V CHAN-FOOK [1994] 1 WLR 689

Facts: The defendant subjected the victim to questioning about the theft of a ring
belonging to the defendant's fiancée. The defendant then dragged the victim
upstairs to a room and locked him in. The victim feared the defendant's return
and injured himself when he fell through a window.

Held: The defendant was not guilty. To amount to actual bodily harm, the injury
need not be permanent but should not be so trivial as to be wholly insignificant.
Feelings of fear and panic are emotions rather than an injury and without medical
evidence to support recognised psychiatric condition a conviction for ABH could
not stand.

MALICIOUS WOUNDING

INTRODUCTION

⇒ Section 20 of the Offences Against the Person Act 1861 states: "Whosoever

shall unlawfully and maliciously wound or inflict any grievous bodily harm upon
any other person wither with or without any weapon or instrument, shall be
liable... to imprisonment for a term not exceeding five years”

⇒ The definition of malicious wounding:

 Actus Reus: the defendant unlawfully either wounded the victim or inflicted

grievous bodily harm to the victim.
 Mens Rea: the defendant foresaw that the victim might suffer some harm.
Note: it is not necessary to show that the defendant intended or foresaw that
the victim would suffer grievous bodily harm.
WHAT DOES 'UNLAWFULLY' MEAN?

⇒ This means the defendant acted without lawful justification. Self-defence is an

example of lawful justification.

WHAT DOES 'WOUND' MEAN?

⇒ This has been interpreted to mean a break in the continuity of the whole of
the skin (C v Eisenhower [1984]). A rupture of an internal blood vessel, therefore,
is not a wound.
⇒ The requirement that the whole of the continuation of the skin be broken
means that a scratch may draw blood but may not be deep enough for a wound if
it only disturbs the outer layer of the skin.

C V EISENHOWER [1984] 3 ALL ER 23

Facts: The defendant shot an airgun at a group of people. He hit someone just
below the eye, causing bruising, but not breaking the skin. One blood vessel at
least below the skin burst.

Held: His conviction was set aside. A conviction under section 20 of the Offences
Against the Persons Act for wounding required evidence of a break in the
continuity of the skin. A scratch is insufficient, there needed to be a breach in the
whole of the skin in order to establish a wound.

WOUNDING WITH INTENT

⇒ Section 18 of the Offences Against the Person Act 1861 states: "Whosoever

shall unlawfully and maliciously by any means whatsoever wound or cause any
grievous bodily harm to any person... with intent... to do some GBH to any
person, or with intent to resist or prevent the lawful apprehension or detainer of
any person, shall be guilty of an offence and being convicted thereof shall be
liable... to imprisonment for life".

⇒ The definition of wounding with intent:

 Actus Reus: the defendant unlawfully wounded or caused grievous bodily

harm to any person.
 Mens Rea: either: (1)the defendant intended to cause grievous bodily
harm; or (2) the defendant intended to resist or prevent the lawful
apprehension or detention of any person.
<b⇒< b="" style="box-sizing: border-box; -webkit-font-smoothing:
antialiased;">The actus reus of this offence is very similar to that of malicious
wounding (see the offence of malicious wounding here). However, the mens
rea of the two offences differ...</b⇒<>
THE MENS REA

⇒ The core mens rea of Section 18 of the Offences Against the Person Act

1861 (i.e. wounding with intent) is that the defendant intended to cause GBH →
thus, the mens rea requirement for section 18 is more stringent than that
required for section 20 (malicious wounding): while section 18 requires proof that
GBH was intended, section 20 merely requires that some harm was foreseen.

⇒ Even if the defendant did not intend GBH he can still be convicted under s18 if
he was intending to prevent or resist an arrest → this requires that the defendant
was Cunningham recklessness to causing the GBH and that he intended to resist
or prevent the lawful apprehension/detention of any person.

MIXING AND MATCHING

INTRODUCTION

⇒ If a defendant is charged with one of these assaults, but the jury acquits him
or her of that offence, the jury can nevertheless convict the defendant of a
lesser assault.

⇒ So, if the defendant is charged with a section 18 offence (see this offence here)
the jury can still convict him or her of an offence under section 20 (see here) or
section 47 (see here

TRANSMITTING DISEASE

INTRODUCTION

⇒ There has been much discussion over whether a defendant who passes on a
disease can be convicted of an offence, but this is now governed by the following
two decisions: R v Dica [2004] and R v Konzani [2005].

R V DICA [2004] 3 ALL ER 593

⇒ The defendant was told that he was HIV positive. He proceeded to have
unprotected sex with two women.
⇒ The defendant was liable under section 20 of the Offences Against the Person
Act for inflicting grievous bodily harm. Recklessly having unprotected sex after HIV
diagnosis, resulting in the infliction of really serious harm (HIV), is enough to
constitute a section 20 conviction.

Theft, Handling, and Robbery

THEFT

INTRODUCTION

⇒ Section 1 of the Theft Act 1968 defines theft: "A person is guilty of theft if he

dishonestly appropriates property belonging to another with the intention of
permanently depriving the other of it"

⇒ There are 5 elements which will each be explored, although not necessarily in
order. A person is guilty of theft if he or she:

 (1) Appropriates;
 (2) Property;
 (3) Belonging to another;
 (4) Dishonestly;
 (5) With an intention permanently to deprive.
⇒ The actus reus of theft is, therefore, appropriating property belonging to
another. The mens rea is dishonesty and an intention permanently to deprive.

1. Property

INTRODUCTION

⇒ Section 4(1) of the Theft Act 1968 defines property to include "money and all
other property, real or personal, including things in action and other intangible
property"

 Real property means land

 Personal property is property which is not land
  A thing in action (i.e. a 'chose in action') means a property right that can be
claimed in a court action e.g. a debt
 'Intangible property' includes patents and copyrights → so if you purport to
sell someone else's rights under patent, that is theft.
ECTION 5(4) THEFT ACT 1968

⇒ This section says that if a person gets property by mistake it must be

returned. See, for example, the case of Attorney-General’s Reference No 1 of
1983 [1985].

3. Appropriation

INTRODUCTION

⇒ Section 3(1) Theft Act 1968: "Any assumption by a person of the rights of an
owner amount 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".

⇒ The case law has shown appropriation to mean where the defendant has
assumed any of the rights of the owner → it is therefore appropriation to touch
someone else’s property, offer it for sale, or destroy it.

⇒ See the cases of R v Gomez [1993] and R v Hinks [2001].

4. Intention permanently to deprive

CORE MEANING

⇒ The core meaning of the requirement that the defendant must intend to
permanently deprive is straightforward.

⇒ The requirement means that borrowing does not normally amount to theft,

even if it is borrowed without consent → although borrowing may become theft if
it carries on for too long e.g. if you borrow a book from a friend for a long time
and do not give it back and treat it as your own, then that will be a crime.

⇒ There must be an intention to permanently deprive.

⇒ However, it may be theft even where the defendant only had conditional

intention → if property is taken with the intent to decide at a later stage whether
to keep the articles/property, this conditional intention may be acceptable for a
charge of theft or attempted theft. But see the case of R v Easom [1971].

EXTENDED MEANING: S6 THEFT ACT 1968

⇒ Section 6 of the Theft Act 1968 provides an extended meaning to the phrase

"intending permanently to deprive". The wording of the section is not that clear,
but appears that it will be theft in the following cases:

 Where the defendant throws the victim’s taken items away → without
section 6 the defendant could have argued that he did not intend to
permanently deprive the victim of his items because he would have been
happy if the victim found the stolen items.
 Where the defendant sells the items back to the victim → again, without
section 6, the defendant could have argued that he did not intend to
permanently deprive the victim of the items.
 Where the defendant returns property in an impoverished state it will be
theft. This is seen in section 6(1), which states that if the borrowing is
"equivalent to an outright taking or disposal" then this amounts to an
intention permanently to deprive. For example, if you borrow a football
season ticket but don’t return it until the end of the season this will be the
same as being permanently taken, and the defendant may be convicted of
theft.
 If the defendant gambles the victim’s property or invests it in a risky
investment the defendant will be treated as intending to deprive the victim of
it.
5. Dishonestly

INTRODUCTION

⇒ The meaning of dishonesty is a mixture of statute and common law. The

starting point is section 2 of the Theft Act 1968, which sets out various
circumstances in which the defendant will not be dishonest.

⇒ The three circumstances determined in section where the defendant

will not be dishonest:

 s2(1)(a): The defendant believed he had a right to deprive the owner of the
property.
 s2(1)(b) The defendant believed that the owner would consent.
 s2(1)(c) The defendant believed that the owner could not be found.
THE COMMON LAW TEST FOR DISHONESTY

⇒ If the defendant is not acquitted on the basis of section 2(1) the jury will go
on to consider the common law test for dishonestly, set out in R v Ghosh [1982].
The Ghosh test previously required the jury to consider two separate questions in
deciding whether or not the defendant was dishonest:

 (1) Was what the defendant did dishonest according to the standards of
reasonable and honest people?
 (2) Would the defendant realise that reasonable and honest people would
regard what he/she did as dishonest?
o The second limb has now been overruled by the Supreme Court
following Ivey (Appellant) v Genting Casinos (UK) Ltd t/a Crockfords
(Respondent) [2017]
⇒ As there is now only one limb to the Ghosh test, you now need only answer the
first question If the answer to the question is ‘yes’ then the defendant is
dishonest. If the answer to the question is ‘no’ then the defendant is not
dishonest.
⇒ Note, that even before this change of law, the full test did not need to be
used in all cases; only the first question needed to be asked in circumstances
where the defendant gives evidence that he or she thought his or

1. Property

INTRODUCTION

⇒ Section 4(1) of the Theft Act 1968 defines property to include "money and all
other property, real or personal, including things in action and other intangible
property"

 Real property means land

 Personal property is property which is not land
 A thing in action (i.e. a 'chose in action') means a property right that can be
claimed in a court action e.g. a debt
 'Intangible property' includes patents and copyrights → so if you purport to
sell someone else's rights under patent, that is theft.
her conduct was honest according to the standards of ordinary people.

ROBBERY

INTRODUCTION

⇒ Section 8 of the Theft Act 1968 defines robbery. In essence robery is made up

of two elements:

 (1) It must be shown that the defendant has committed theft (see notes on
theft here). The mens rea and actus reus of theft must be proved.
 (2) It must be shown that the defendant has used or threatened force at the
time of the theft.
THE SECOND REQUIREMENT: THREAT OR USE OF FORCE

⇒ There are three elements in this second requirement:

⇒ (1) There must be the use of force or treat of force → force is to be given its
ordinary meaning by the jury. However, the level of force need be of only a
minimal kind. See, for example, R v Dawson [1976].

⇒ (2) The force must be used in order to steal and not for any other purpose →
this means that the defendant must be aware that he or she is using force and
intends to use that force in order to steal.

⇒ (3) The force must be used at the time of the theft or immediately before it →
it is not robbery if the force is used simply in order to make a getaway from a
scene of a theft. See, for example, R v Hale (1976).

R V DAWSON [1976] 64 CR APP R 150

Facts: One of the defendants nudged a man so as to make it easier for the other
defendant to take his wallet from his pocket. The jury convicted both of robbery
and they appealed contending that nudging fell short of using force.

Held: The convictions were upheld. The word force is to be given its ordinary
meaning and requires no direction to the jury. The jury were entitled to find that
force had been used.

R V HALE [1978] 68 CR APP R 415

Facts: The two defendants broke into a woman's home. One went upstairs and
took some jewellery from her bedroom. After taking the jewellery the two of
them tied her up. They were convicted of robbery and appealed on the grounds
that the force came after they had appropriate the jewellery and thus did not
come within the requirement of being immediately before or at the time of
stealing.

Held: The convictions were upheld as the appropriation of the jewellery was a
continuing act.

 Eveleigh LJ: "To say the conduct is over and done with as soon as he laid
hands on the property is contrary to common-sense and to the natural
 meaning of the words. The act of appropriation does not cease. It is a
continuous act and it is a matter for the jury to decide whether or not the
appropriation has finished".
HANDLING STOLEN GOODS

INTRODUCTION

⇒ The offence can be broken down into four elements (as seen in section 22
Theft Act 1968 and expanded in section 24(2)):

 (1) It must be shown that the goods have already been stolen.
 (2) It must be shown that the defendant handled the property.
 (3) It must be shown that the defendant knew or believed that the goods
were stolen.
 (4) The defendant was dishonest.
(1) IT MUST BE SHOWN THAT THE GOODS HAVE ALREADY BEEN STOLEN

⇒ It is not necessary for the prosecution to prove who stole the goods, as long as
it is clear the goods have been stolen by someone.

⇒ If the defendant believes the goods to be stolen, but in fact they are not, then
the defendant may be guilty of an attempted handling offence.

(2) IT MUST BE SHOWN THAT THE DEFENDANT HANDLED THE PROPERTY

⇒ It must be shown that the defendant engaged in or arranged one of the
following:

1. Receiving the property; or

2. Undertaking any of the following:
a. retention;
b. removal;
c. disposal;
d. realisation
... of the goods either by another or for another's benefit.
 3. Assisting in any of the following:
a. retention;
b. removal;
c. disposal;
d. realisation
... of the goods either by another or for another's benefit.

⇒ The terms used here are readily understandable and are to be given their
normal meanings.

Fraud
HANDLING STOLEN GOODS

INTRODUCTION

⇒ The Fraud Act 2006 creates a new offence of fraud which can be committed in
three different ways:

 By false representation
 Failing to disclose information
 Abuse of position
1. Fraud by False Representation

INTRODUCTION

⇒ Section 2(1) of the Fraud Act 2006 states a person is in breach of this section if
he:

 Dishonestly makes a false representation, and

 Intends, by making the representation -
a. to make a gain for himself or another, or
b. to cause loss to another or to expose another to a risk of loss.
THERE MUST BE A FALSE REPRESENTATION
⇒ The representation can be made in any way e.g. orally, written, online, etc. See,
for example, the case of Idrees v DPP [2011].

⇒ Section 2(2) of the Fraud Act 2006 explains that a representation is to be

regarded as false if it is 'untrue or misleading'

THE FALSE REPRESENTATION MUST BE MADE BY THE DEFENDANT

⇒ So for the defendant to be guilty of fraud, they must have made the
representation.

⇒ Notice also that the representation must be 'made'

 This may indicate that representation cannot be made by silence; however,

the matter is not straightforward. Section 2(4) of the Fraud Act 2006 explains
that the representation can be express or implied, so silence could be a
representation. See, for example, the case of R v Barnard [1837].
 IDREES V DPP [2011] EWHC 624
 Facts: A person took the written part of a driving test impersonating
someone else.
 Held: Court upheld the conviction of fraud. By turning up at the test centre
and presenting someone's identification they were impliedly claiming to be
that person.
 R V BARNARD (1837) 7 C & P 784
 Facts: A defendant went into a shop (in the 1830s) wearing an academic
cap and gown of the kind typically worn by members of Oxford University
at that time. The shopkeeper assumed he was a member of the University
and therefore gave a discounted price.
 Held: It was held that by wearing this garb the defendant was representing
that he was a member of the University. As he was not, this amounted to
false representation.

FRAUD AND POSSESSION OFFENCES

SUMMARY
⇒ Section 6(1) of the Fraud Act 2006 states: a person is guilty of an offence if he
has in his possessor under his control any article for use in the course of or in
connection with any fraud".

⇒ David Ormerod says it is "lamentable" that no mens rea is required for this
offence

 As he points out, on its face, being in possession of a pen would fall under
this section. Surely it must be shown that the defendant intends the article
to be used in fraud.
⇒ Section 7 of the Fraud Act 2006 creates an offence of creating, adapting,
supplying, or offering for supply any article knowing or intending it to be used in
connection with fraud.

OBTAINING SERVICES DISHONESTLY

SUMMARY

⇒ Section 11 of the Fraud Act 2006 creates an offence of obtaining services

dishonestly. It states:

⇒ 1. A person is guilty of an offence under this section if he obtains services for
himself or another -

a. by a dishionest act, and

b. in breach of subsection (2).
⇒ 2. A person obtains services in breach of this subsection if -

a. they are made available on the basis that payment has been, is being or
will be made for or in respect of them,
b. he obtains them without any payment having been made for or in
respect of them or without payment having been made in full, and
c. when he obtains them, he know -
i. that they are being made availbe on the basis described in
paragraph (a), or
ii. that they may be,
... but intends that payment will not be made, or will not be made in full.
⇒ This offence is restricted to services which were provided on the basis that they
would be paid for. It does not cover cases where by a deception the defendant
persuades the victim to provide gratuitous services.

 So if the defendant were to persuade the victim to do his gardening

because the defendant was suffering back pain, whereas in fact the
defendant was fine, just lazy, the offence would not be committed.
⇒ Notice that unlike fraud, the offence requires the defendant to have actually
obtained a service as a result of the dishonest act.

⇒ It should also be noted that the offence is only committed where it is the
deception which has caused the obtaining. So if the victim would have provided
the service even if the defendant had told the truth then no offence would be
committed.

MAKING OFF WITHOUT PAYMENT

SUMMARY

⇒ The key elements of the section 3 Theft Act 1978 offence are:

a. Making off;
b. Dishonestly;
c. Without having paid as required or expected;
d. Knowledge that payment on the spot is required for goods or services;
e. Intent to avoid payment.
⇒ The actus reus is the making off without having pair as required or expected.

⇒ The mens rea is dishonesty: knowing that payment on the spot is required for
goods and services, and an intent to avoid payment.

⇒ This offence carries a maximum setence of two years' imprisonment.

⇒ The offence is deigned to deal with people who, for example, having eaten a
meal at a restaurant run out without payment, or having taken a taxi ride
disappear without paying the fare.
MAKING OFF FROM THE PLACE WHERE PAYMENT WAS EXPECTED

⇒ The term 'making off' simply means leaving. See, for example, the case of R v
Brooks and Brooks (1983)

⇒ The defendant must make off from the place where payment was expected →
this includes the door of a restaurant or even the side of an ice cream van.

⇒ There is some doubt whether a defendant can be said to be making off if the
victim has given permission to the defendant to leave.

 R v Hammond [1982] appears to suggest that if the owner has consented to

the defendant's departure there is no making off.
GOODS SUPPLIED OR SERVICES DONE

⇒ The offence requires evidence that goods have been supplied or services done
for the defendant.

⇒ There is some dispute about where a defendant takes goods from a self-service
supermarket or restaurant: are such goods supplied?

 Griew argues not, but Smith suggests that the goods are supplies, in that they
are "made available for sale".
 R V BROOKS AND BROOKS (1983) 76 CR APP R 66
 Facts: A father and daughter and a man named Smith went to a restaurant.
The daughter left early in a rush. The father and Smith then absconded
without paying. They were convicted of making off without payment. The
daughter appealed contending she thought her father was paying and was
thus not dishonest.
 Held: The daughter's conviction was quashed. The words 'dishonestly
makes off' should be given their ordinary meaning and the jury should
relate these words to the facts of any case. In the majority of cases no
elaboration is required. There is no requirement of leaving by stealth in
order to amount to being dishonest, the words 'makes off' simply means
depart.
Burglary and Blackmail
INTRODUCTION

⇒ Section 9 of the Theft Act 1968 defines the offence of burglary. It is important

to appreciate there are two different kinds of burglary:

1. Section 9(1)(a): entering a building or part of a building as a trespasser with

an intent to commit one of the following in the building:

a. theft;
b. criminal damage; or
c. infliction of grievous bodily harm;
2. Section 9(1)(b): having entered a building or part of a building as a trespasser,
committing either:

a. theft or attempted theft; or

b. infliction or attempted infliction of grievous bodily harm.
⇒ The key difference between the two offences is the time at which the crime is
committed:

1. Section 9(1)(a) is committed when the defendant enters the building.

2. Section 9(1)(b) is committed when, once inside the building, the defendant
commits one of the listed crimes.
Building or part of a building

SUMMARY

⇒ A building must involve a permanent structure.

 Section 9(4) of the Theft Act 1968 states that an inhabited vehicle isincluded
within the definition of a building. This is designed to cover houseboats and
caravans which are permanently inhabited.
⇒ If the defendant enters a building with the consent of the owner, but then
enters part of the building which he is not permitted to enter with intent to steal,
he or she can be guilty of burglary.
Entry

SUMMARY

⇒ The burglar must 'enter' the building to be guilty of burglary, but this does not
mean that the burglar's body must enter the building.

⇒ According to the Court of Appeal in R v Brown [1985] there must be 'effective

entry'.

 In the case, the defendant broke a shop window and stick the top half of his
body through it while investigating the inside of the shop. This as an effective
entry so the offence was made out.
 The Court of Appeal in R v Ryan [1996] rejected an argument that the test
should be whether there was a sufficient amount og the defendant's body
inside to enable him or her to carry out one of the crimes.
⇒ It is widely accepted that it is possible to commit a burglary by using an object
to enter the property, although there is no recent authority on the issue e.g. using
a pole to pull out an item from a building.

Trespass

SUMMARY

⇒ The defendant must enter as a trespasser, being aware that he or she is a

trespasser.

⇒ If someone enters a piece of land he or she does not own without legal
authorisation then prima facie he or she is a trespasser.

⇒ See the case of R v Collins [1973] where the key issues was whether the
owner's daughter had invited the defendant into the house before he had
entered. If she had he could not be convicted of burglary because he was not a
trespasser.
R V BROWN [1985] CRIM LR 212

Facts: In the case, the defendant broke a shop window and stick the top half of his
body through it while investigating the inside of the shop.

Held: This as an 'effective entry' so the offence of burglary was made out.

R V RYAN [1996] CRIM LR 320

Facts: he defendant was found wedged in the kitchen window of the home
belonging to an elderly man. His head and right arm were inside the property but
the rest of his body was outside. The fire brigade had to be called to remove him.
He was convicted of burglary and appealed on the grounds that there had been
no effective entry.

Held: His conviction was upheld.

R V COLLINS [1973] QB 100

Facts: The defendant was charged with burglary. He had climbed a ladder to an
open window where a young woman was sleeping naked in her bed. He
descended the ladder and stripped down to his socks then climbed up again. The
woman awoke and saw him at the window. She thought it was her boyfriend so
invited him in. It was not clear, and neither party could recall whether he was
inside or outside the window when she invited him in. They proceeded to have
sexual intercourse. She then realised it was not her boyfriend and screamed for
him to get off. He ran off. The following day he was questioned by the police and
charged with burglary under s.9(1)(a) on the grounds that he entered as a
trespasser with the intent to commit rape. (He could not be charged with rape as
the woman had consented to sexual intercourse). The jury convicted him at first
instance. The defendant appealed on the grounds of a misdirection as the jury
had not been asked to consider if he was a trespasser at the time of entry.

Held: His conviction was quashed (i.e. found not guilty). It was held that there
must be an effective and substantial entry with knowledge or being reckless as to
being a trespasser. Consent of the home owner (the girl's parents) was not
required; it was sufficient that the girl had invited him in.
AGGRAVATED BURGLARY

 Section 10 of the Theft Act 1968 states:

1. A person is guilty of aggravated burglary if he commits any burglary and at
the time has with him any firearm or imitation firearm, any weapon of offence,
or any explosive; and for this purpose -
a. "firearm" includes an airgun or air pistol, and "imitation firearm" means
anything which has the appearance of being a firearm, whether capable
of being discharged or not; and
b. "weapon of offence" means any article made or adapted for use for
causing injury to or incapacitating a person, or intended by the person
having it with him for such use; and
c. "explosive" means any article manufactured for the purpose of producing
a practical effect by explosion, or intended by the person having it with
him for that purpose.
SUMMARY
⇒ Aggravated burglary involves a defendant who has with him or her at the time
of the burglary a firearm, imitation firearm, a weapon of offence, or explosive.
⇒ If the burglary is under section 9(1)(a) of the Theft Act the it must be show that
the defendant had the weapon at the time of entry; under section 9(1)(b) of the
Theft Act it must be shown that the defendant had the weapon at the tim of
committing the further offence.
 In other words, the defendant must possess the weapon at the time when
the offence of burglary is committed.
⇒ There is no need to sho that the defendant intended to use the item at that
particular burglary, as long as there was an intention to use the item against
someone on some occassion.
⇒ However, it must be shown that the defendant was aware that he or she had
the weapon with him or her at the time of the burglary.
TRESPASS WITH INTENT TO COMMIT A SEXUAL OFFENCE
⇒ Under section 63 of the Sexual Offences Act 2003:

1. A person commits an offence if -

a. he is a trespasser on any premises,

b. he intends to commit a relevant sexual offence on the premises, and
c. he knows that, or is reckless as to whether, he is a trespasser.
⇒ The term 'sexual offence' is widely defined in section 62 of the Act.

hanges to legislation:

There are outstanding changes not yet made by the legislation.gov.uk editorial
team to Sexual Offences Act 2003. Any changes that have already been made by
the team appear in the content and are referenced with annotations.
View outstanding changesstatus warnings
63Trespass with intent to commit a sexual offence
(1)A person commits an offence if—
(a)he is a trespasser on any premises,
(b)he intends to commit a relevant sexual offence on the premises, and
(c)he knows that, or is reckless as to whether, he is a trespasser.
(2)In this section—
 “premises” includes a structure or part of a structure;
 “relevant sexual offence” has the same meaning as in section 62;
 “structure” includes a tent, vehicle or vessel or other temporary or movable
structure.
(3)A person guilty of an offence under this section is liable—
(a)on summary conviction, to imprisonment for a term not exceeding 6 months or
a fine not exceeding the statutory maximum or both;
BLACKMAIL

⇒ The offence is defined in section 21 of the Theft Act 1968.

⇒ The actus reus is:
 1. the defendant makes an unwarranted demand;
2. with menaces.
⇒ The mens rea is:

1. the defendant must act with a view to gain for himself or another or with
intent to cause loss to another;
(2) the defendant either:

a. does not believe that he has reasonable grounds for make the demands; or
b. does not believe that the use of menaces is a proper means of reinforcing
the demand.
A DEMAND

⇒ The demand can be oral, written, or implied (R v Collister and Warhurst

(1955)).

⇒ The word 'demand' is to be given its ordinary meaning. All that is necessary is
that the demand is issued. There is no need for the victim to hear or receive the
demand.

R V COLLISTER & WARHURST (1955) 39 CR APP R 100

Facts: The two defendants were police officers. They intimated to the
complainant that he would be prosecuted for an offence. They arranged to meet
him the next day and told him the report of the offence would not occur unless he
failed to turn up for the meeting. At the meeting one of the officers asked the
complainant if he had anything for him. The complainant handed over £5. The
defendants were convicted of blackmail and appealed contending they did not
make any demand.

Held: The convictions were upheld. The demand need not be express but can be
implied from conduct and circumstances.

Criminal Damage
BASIC CRIMINAL DAMAGE
DEFINITION

⇒ Section 1 of the Criminal Damages Act 1971 defines criminal damage.

⇒ The actus reus is the destruction of or damage to property belonging to

another without lawful excuse.

⇒ The mens rea is that the defednat intended or was reckless (a) that his or her
action would damage r destroy property and (b) that that property belonged to
another.

⇒ The maximum punishment is ten years' imprisonment.

DAMAGE

⇒ The statute uses the term 'destroy or damage'.

⇒ The term 'destruction' indicates that following the acts of the defendant the
item no longer exists. The term 'damage' therefore suggests that the acts have
affected the property, but fall short of destruction.

⇒ The idea of damage involves either:

1. a reduction in the value of the item; or

2. a reduction in the usefulness of the item.
⇒ There are a few issues on the meaning of damage over which there is some
dispute:

 Is minimal damage excluded from the concept? See the case of A (A Juvenile)
v R [1978], for example.
 Is adding to property damaging it? See the case of Lloyd v DPP [1992], for
example, it was held that putting a wheel clamp on a car did not constitute
criminal damage because it did not affect the integrity of the car.

 There are currently no known outstanding effects for the Criminal Damage
Act 1971, Section 1.
  1Destroying or damaging property.
 (1)A person who without lawful excuse destroys or damages any property
belonging to another intending to destroy or damage any such property or
being reckless as to whether any such property would be destroyed or
damaged shall be guilty of an offence.
 (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.
 (3)An offence committed under this section by destroying or damaging
property by fire shall be charged as arson.
 Modifications etc. (not altering text)
 C1S. 1 applied by Aviation and Maritime Security Act 1990 (c. 31, SIF
39:2), s. 18(2)
 C2S. 1 extended (prosp.) by Nuclear Material (Offences) Act 1983 (c. 18, SIF
8) s. 1(1)(b)
 C3S. 1 extended by Internationally Protected Persons Act 1978 (c. 17, SIF
39:2), s. 1
 S. 1 extended (27.4.1997) by 1997 c. 13, ss. 2(2)(b), 10(2)
 C4S. 1(1)(3) amended as to mode of trial by Magistrates' Courts Act 1980 (c.
43, SIF 82), Sch. 1 para. 29
 A (A JUVENILE) V R [1978] CRIM LR 689
 Facts: The defendant spat on a policeman's rain coat. The spittle could be
easily wiped off and left no permanent damage.
 Held: It was held that this did not constitute unlawful damage to property.
It would have been different if the material was different and left a stain or
required dry cleaning.

ARSON

SUMMARY
⇒ Arson is to be regarded as a species of criminal damage.

⇒ Under section 1(3) of the Criminal Damage Act 1971:

 An offence committed under this section by destroying or damaging

property by fire shall be charged as arson.
⇒ The requirements of arson are the same as criminal damage, the only
difference being that it must be shown that the damage or destruction was
caused by fire.

AGGRAVATED CRIMINAL DAMAGE

INTRODUCTION

⇒ Aggravated criminal damage is seen under section 1(2) of the Criminal Damage

Act 1971.

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 life imprisonment.

SUMMARY

⇒ The actus reus of the offence involves destroying or damaging property

without lawful excuse.

 So the offence can be committed by the defendant damaging his own property
as seen in R v Merrick [1995].
⇒ There is no need to show that the damage or destruction actually endangers
the life of others. See, for example, R v Sangha [1988].
⇒ The mens reas is in two parts:

 First, it must be shown that the defendant intended to destroy or damage the
property or was reckless whether or not he or she did so → this is the same as
the mens rea requirement for criminal damage.
 Second, it must be show that the defendant intended or was reckless to the
endangerment of someone's life as a result of the criminal damage → it must
be stressed that the endangerment of life must result from the criminal
damage, as established in R v Steer [1988].
 R V SANGHA [1988] 2 ALL ER 385
 Facts: The appellant set fire to a mattress in a block of flats. The flat was
empty at the time and the flats were constructed in such a way as to
prevent the spread of fire to neighbouring flats. He was convicted of
aggravated criminal damage under s.1(2) Criminal Damage Act 1971 and
appealed contending that no life was in fact endangered.

Held: His conviction was upheld at the Court of Appeal. There was no
requirement that life should in fact be endangered under s.1(2). The test to be
applied was whether an ordinary prudent bystander would, at the time when
the fire was started, have perceived an obvious risk that property would be
damaged and that life would thereby be endangered. The fact that there may
haveR V STEER [1988] 1 AC 111

Facts: The appellant had an argument with a former business partner and went
round to his house armed with a gun. He rang the door bell and then fired shots
through the windows and doors. He was convicted of aggravated criminal damage
under s.1(2) Criminal Damage Act 1971.

Held: His conviction under s.1(2) was quashed as the danger to life came from the
gun and not the damage to the property.

 been special features which prevented the risk from materialising was
irrelevant.

C O M P U T E R C R I M E : C O M P U T E R M I S U S E AC T 1 9 9 0
INTRODUCTION

⇒ The Computer Misuse Act 1990 is designed to protect information kept on

computers.

⇒The term 'computer' is not defined in the Act. No doubt any attempted
definition would rapidly become out of date.

SECTION 1: UNAUTHORISED ACCESS TO COMPUTER MATERIAL

⇒ This offence is designed to punish people who try to gain access to

unauthorised data.

1. A person is guilty of an offence if—

a. he causes a computer to perform any function with intent to secure access to

any program or data held in any computer, or to enable any such access to be
secured;
b. the access he intends to secure, or to enable to be secured, is unauthorised;
and
c. he knows at the time when he causes the computer to perform the function
that that is the case.
2. The intent a person has to have to commit an offence under this section need
not be directed at—

a. any particular program or data;

b. a program or data of any particular kind; or
c. a program or data held in any particular computer.
⇒ The actus reus of the offence is simply causing the computer to 'perform any
function'.

 This could include switching the computer on.

 It should be emphasised that there is no need to show that the defendant
actually reached unathorised material, only that he or she intended to do so.
⇒ The mens rea of the offence can be broken down into three elements:
 1. An intention to secure or enable access to any program or data on the
computer.
2. The intended access to the data must be unauthorised.
3. The defendant knows that he or she is not authorised to access the program
or data.
Defences
SELF DEFENCE

THE LEGAL SOURCE OF THE DEFENCE

⇒ The reqirements of private defence are:

a. The defendant was (or believed he or she was) facing an unjust threat from
the victim.
b. The defendant used a level of force against the threat (or the threat as it was
believed to be) which was reasonable in the circumstances.
⇒ So there is a complete defence to those who use force in order to defend
themselves or another person from an unjustified attack.

⇒ There is some confusion in that this defence has two separate legal sources:

1. At common law a person has a defence he or she is defending himself or

another from an attack.
2. Under section 3 of the Criminal Law Act 1967:
1. A person may use such force as is reasonable in the circumstances in the
prevention of crime, or in effecting or assisting in the lawful arrest of
offenders or suspected offenders or of persons unlawfully at large.
2. Subsection (1) above shall replace the rules of the common law on the
question when force used for a purpose mentioned in the subsection is
justified by that purpose.
⇒ Fortunately the courts have held that the rules governing commonn law private
defence and section 3 coexist i.e. the legal rules are the same whichever form of
the defence is used (R v Cousins [1982]).

TO WHAT CRIME IS SELF-DEFENCE A DEFENCE

⇒ Some cases suggest that self-defence appears to be available only to a
defendant who is charged with a crim that involves the use of force and so is not
available to an offence such as possession or parking on a double yellow line. This
was stressed in R v Renouf [1986]

⇒ The requirement that the defence involve use of force was confirmed in Blake
v DPP [1993].

What needs to be shown to establish the defence?

SUMMARY

1. The victim must pose a threat.

2. The threat must be unjustified.

3. The use of force must be necessary.

4. The degree of force must be reasonable.

5. The defendant must be acting in order to defend himself or another or

property.

⇒ See the case of R v Martin (Anthony) [2001].

BLAKE V DPP [1993] CRIM LR 586

Facts: A vicar wrote with a felt-tip pen on a pillar near the Houses of Parliament.
He argued he was seeking to prevent the first Iraq war and therefore relied
on section 3 of the Criminal Law Act 1967.

Held: Because the writing did not involve the use of force it was held that the
defence could not be relied upon.

THE VICTIM MUST POSE A THREAT

⇒ The victim must pose a risk to the defendant or someone else.

  However, see the case of R v Hitchens [2011].
⇒ There is no doubt that the defence applies whether the threat is being posed
to the defendant or another person, but there is doubt whether itiis possible to
use the defence when protecting property.

 The Court of Appeal in R v Faraj [2007] suggested that reasonable force to

detain an intruder in order to protect property was reasonable, but aggressive
force should not be used.
 See the case of R v Burns [2010].
THE THREAT MUST BE UNJUSTIFIED

⇒ If Tim attacks Matt and Matt defends himself by using force on Tim, Tim cannot
then use further force against Matt and argue that this was in 'self-defence'
against Matt's attack.

 Here, Matt's use of force was reaonable and justified, therefore Tim cannot
use self-defence as a defence against it
⇒ See the case of R v Jones [2006].

THE USE OF FORCE MUST BE NECESSARY

⇒ It must be shown that it was necessary to use force.

 This means that it must have been reasonable for the defendant to use force,
rather than escape from the threat in some way.
⇒ The defendant does not have a 'duty to retreat' → the question is not would a
reasonable person have retreated, but rather was ir reasonable for the defendant
to use force.

⇒ The law does permit the defendant to take 'a pre-emptive strike' if to do so is
reasonable.

THE USE OF FORCE MUST BE REASONABLE

⇒ The defendant can successfully use the defence only if the level of force was
reasonable in the face of the threat as perceived by the defendant.

⇒ It should be stressed that the question is whether a reasonable person would
say that the level of force was reasonable, not whether the defendant thought
the level of force used was reasonable (R v Owino [1995]).

⇒ Many commentators take the view that it is reasonable to cause greater harm
in self-defence than is threatened.

 For example, many (but by no means all) commentators think it may be

reasonable for a woman to kill a person who is about to rape her (e.g.
Leverick)
 However, where the amount of force inflicted in self-defence is far greater
than the harm threatened, the jury may conclude that it is at an unreasonable
level.
THE DEFENDANT MUST BE ACTING IN ORDER TO DEFEND HIMSELF

⇒ A defendant who is acting not in order to defen him or herself or another, but
solely out of revenge or retaliation will not be able to rely on the defence.

⇒ This is part of what become known as 'the Dadson' principle: the defendant

cannot rely on the justifying circumstances of his or her actions of which he or she
is not aware.

SELF-INDUCED

⇒ If the defendant caused the attack in the first place then he or she may not be
able to rely on the defence.

 The question for the jury is whether the defendant's use of force was
reasonable in light of the fact that he or she had instigated the fight.
⇒ See the case of R v Keane [2010].

THE THREAT MUST BE UNJUSTIFIED

⇒ If Tim attacks Matt and Matt defends himself by using force on Tim, Tim cannot
then use further force against Matt and argue that this was in 'self-defence'
against Matt's attack.

 Here, Matt's use of force was reaonable and justified, therefore Tim
cannot use self-defence as a defence against it
⇒ See the case of R v Jones [2006].

R V JONES [2006] UKHL 16

Held: A crime committed in an attempt to stop the Iraq war could not be justified
on the basis of self-defence because the act of going to war was not an offence
under English law. An offence under international law was insufficient.

THE USE OF FORCE MUST BE REASONABLE

⇒ The defendant can successfully use the defence only if the level of force was
reasonable in the face of the threat as perceived by the defendant.

⇒ It should be stressed that the question is whether a reasonable person would
say that the level of force was reasonable, not whether the defendant thought
the level of force used was reasonable (R v Owino [1995]).

⇒ Many commentators take the view that it is reasonable to cause greater harm
in self-defence than is threatened.

 For example, many (but by no means all) commentators think it may be

reasonable for a woman to kill a person who is about to rape her (e.g.
Leverick)
 However, where the amount of force inflicted in self-defence is far greater
than the harm threatened, the jury may conclude that it is at an
unreasonable level.
THE USE OF FORCE MUST BE NECESSARY

⇒ It must be shown that it was necessary to use force.

  This means that it must have been reasonable for the defendant to use force,
rather than escape from the threat in some way.
⇒ The defendant does not have a 'duty to retreat' → the question is not would a
reasonable person have retreated, but rather was ir reasonable for the defendant
to use force.

⇒ The law does permit the defendant to take 'a pre-emptive strike' if to do so is
reasonable.

THE USE OF FORCE MUST BE REASONABLE

⇒ The defendant can successfully use the defence only if the level of force was
reasonable in the face of the threat as perceived by the defendant.

⇒ It should be stressed that the question is whether a reasonable person would
say that the level of force was reasonable, not whether the defendant thought
the level of force used was reasonable (R v Owino [1995]).

⇒ Many commentators take the view that it is reasonable to cause greater harm
in self-defence than is threatened.

 For example, many (but by no means all) commentators think it may be

reasonable for a woman to kill a person who is about to rape her (e.g.
Leverick)
 However, where the amount of force inflicted in self-defence is far greater
than the harm threatened, the jury may conclude that it is at an unreasonable
level.
THE DEFENDANT MUST BE ACTING IN ORDER TO DEFEND HIMSELF

⇒ A defendant who is acting not in order to defen him or herself or another, but
solely out of revenge or retaliation will not be able to rely on the defence.

⇒ This is part of what become known as 'the Dadson' principle: the defendant

cannot rely on the justifying circumstances of his or her actions of which he or she
is not aware.
SELF-INDUCED

⇒ If the defendant caused the attack in the first place then he or she may not be
able to rely on the defence.

 The question for the jury is whether the defendant's use of force was
reasonable in light of the fact that he or she had instigated the fight.
⇒ See the case of R v Keane [2010].

R V KEANE [2010] CRIM 2514

Facts: After a night visiting pubs Daniel Keane was being given a ligt home by the
victim and two women. Keane started to insult one of the women, including
calling her a 'chav'. This led to a fight between Keane and the victim in which the
victim suffered grievous bodily harm.

Held: At first instance Keane was convicted of grievous bodily harm. He appealed.
The appeal was dismissed. Where the defendant was the aggressor or
deliberately provokes the victim into punching him, there is no guaranteed right
to rely on self-defence.

NECESSITY

THE MEANING OF NECESSITY

⇒ There has been some confusion over the terminology to the defence of

necessity in criminal law. The term has been used in at least three different
senses:

1. The majority of the academic materials have used the term 'necessity' to refer
to a defence that the defendant did 'the lesser of two evils' i.e. that the
defendant was in a situation which meant that whatever he or she did would
result in harm being caused and the defendant chose the course of harm
which resulted in the least harm.
2. Some cases have used the term 'necessity' to mean duress of circumstances
(see R v Martin (1989)).
 3. Sometimes necessity is used to describe an overarching doctrine which
explains self-defence, duress, and the 'lesser of two evils'.
CASES DENYING THE EXISTENCE OF A GENERAL DEFENCE OF NECESSITY

⇒ The courts have been consistent in denying a general defence of necessity.

⇒ See the following cases:

 Southwark LBC v Williams [1971]

 R v Kitson [1955]
⇒ Despite the denial of a general defence of necessity, in fact a limited defence of
necessity is recognised at common law and in some statutes.

R V MARTIN (1989) 88 CR APP R 343

Facts: The appellant had driven whilst disqualified from driving. He claimed he did
so because his wife threatened to commit suicide if he did not drive their son to
work. His wife had attempted suicide on previous occasions and the son was late
for work and she feared he would lose his job if her husband did not get him to
work. The appellant pleaded guilty to driving whilst disqualified following a ruling
by the trial judge that the defence of necessity was not available to him. He
appealed the ruling.

Held: Appeal allowed. The defence of duress of circumstances should have been
available to him.

SOUTHWARK LBC V WILLIAMS [1971] 1 CH 734

Held: The Court of Appeal held that homeless people seeking temporary refuge in
empty accomodation had committed trespass. The could not rely on a defence
that the trespass was a lesser wrong than their suffering.

 Lord Denning explained: "... if hunger were once allowed to be an excuse

for stealing, it would open a door through which all kinds of lawlessness
and disorder would pass... if homelessness were once admitted as a
 defence to trespass, no one's house could be safe. Necessity would open a
door which no man could shut."
 R V KITSON [1955] 39 CR APP R 66
 Facts: Kitson was a passenger in his brother–in-laws car. He was intoxicated
and had fallen asleep. He awoke to find that the driver had disappeared
and the car was coasting down a hill. He grabbed the steering wheel and
managed to safely steer the car and stop.
 Held: He was still convicted of drink-driving.

DURESS, COERCION, AND ENTRAPMENT

DURESS

⇒ To establish the defence a defendant must show that:

1. he or she committed the crime because of threats of death or grievous

bodily harm;
2. a reasonable person would have acted as the defendant did.
TO WHAT CRIMES IS DURESS A DEFENCE?

⇒ It has been established that duress is available to all crimes, except murder,
attempted murder, and certain forms of treason.

 The leasing case establishing that duress is not a defence to murder is R v
Howe [1987].
 By a majority of three to two the House of Lords in R v Gotts [1992] decided
that duress was not a defence to attempted murder.
Elements of duress

THE DEFENDANT MUST ACT BECAUSE OF A THREAT OF DEATH OR SERIOUS

INJURY

⇒ The defendant must act because of the threats or the circumstances.

 See the case of R v Valderamma-Vega [1985]

⇒ The threat must be one of death or grievous bodily harm.

 There is some doubt whether a threat to cause a serious psychological injury

would be sufficient.
 The House of Lords in R v Burstow [1997] explained that the phrase 'grievous
bodily harm' in the Offences Against the Person Act 1861 included serious
psychological illnesses. However, in R v Baker and Wilkins [1997] the Court of
Apepal emphasised that only a threat of death or physical injury would suffice.
⇒ The threat can be of death or serious harm to anyone.

 It is clear that the defence is available if the defendant fears that anyone for
whom the defendant reasonably regards himself responsible is under threat.
⇒ The threat must not come from the defendant himself.

 See the case of Rodger and Rose [1998]

⇒ The defendant can rely on what he or she reaosnably believed to be a threat.

 In R v Cairns [1999] it was confirmed that if the defendant reasonably believed
that there was a threat of death or grievous bodily harm, the defence may be
available, even if there is in fact no threat.
 AUTOMATISM

SUMMARY

⇒ To plead automatism a defendant needs to show:

1. he had suffered a complete loss of voluntary control;

2. this was caused by an external factor;
3. he was not at fault in losing capacity.
⇒ Automatism occurs when a defendant suffers a complete loss of self-control
caused by an external factor.

⇒ Automaitsm involves more than the individual lacked mens rea. It is a claim

that he or she is not acting: it is a denial of the actus reus.
  The significance of this is that automatism is a defence even to a crime of
strict liability which has no mens rea requirement.
A COMPLETE LOSS OF VOLUNTARY CONTROL

⇒ The Court of Appeal in Attorney-General's Reference (No. 2 of 1992)

[1994] emphasises that to rely on automatism there must be a complete loss of
voluntary control.

 This does appear harsh though, as it would deny a defence to a person

who had only a vague awareness of what was happening to him.
ATTORNEY GENERAL'S REFERENCE (NO. 2 OF 1992) [1994] QB 91

Facts: The respondent was the driver of a heavy goods lorry. He had been driving
six out of the proceeding 12 hours and covered 343 miles when he steered onto
the hard shoulder of a motorway. He crashed into a stationery white van. Two
people were killed. The tyre marks indicated that the respondent's lorry had
braked only at the very last minute. He raised the defence of non-insane
automatism based on "driving without awareness" induced by "repetitive visual
stimulus experienced on long journeys on straight flat roads". He was acquitted by
the jury, but th Attorney-General referred the case to the Court of Appeal.

Held: The state described as "driving without awareness" was not capable of
founding a defence of automatism.

 Lord Taylor CJ: "As the authorities … show, the defence of automatism
requires that there was a total destruction of voluntary control on the
defendant's part. Impaired, reduced or partial control is not enough.
Professor Brown [who gave expert evidence for the respondent] accepted
that someone "driving without awareness" within his description, retains
some control. He would be able to steer the vehicle and usually to react
and return to full awareness when confronted by significant stimuli."
INSANITY

SUMMARY
⇒ It is crucial to distinguish between two different claims in relation to insanity:

1. A claim that a defendant was insane at the time he or she committed the
offence.
2. A claim that the defendant was insane at the time of the trial and so unable
effectively to defend him or herself.
Insanity at the time of the alleged offence

THE DEFINITION OF INSANITY

⇒ The issue of the defendant's insanity at the time of the crime can be raised in
three ways:

1. The defendant straightforwardly claims he or she was insane at the time of the
offence.
2. The defendant raises a defence of no mens rea or automatism, but the judge
decides that the evidence discloses a defence of insanity. The judge may then
instruct the jury to consider the issue of insanity.
3. If the defendant raises a plea of diminished responsibility then the prosecution
is entitled to rebut the defence by producing evidence of insanity.
⇒ A defendant who wishes to plead that he or she was insane at the time of the
offence must demonstrate that he or she was suffering from a defect of
reasoning caused by a disease of the mond which meant that either:

1. he or she did not know the nature or quality of his or her actions; or
2. he or she did not know that what he or she was doing was wrong.
⇒ See the case of R v Sullivan [1984].

R V SULLIVAN [1984] 1 AC 156

Facts: The appellant kicked a man. At the time of the attack he was suffering from
epilepsy. The trial judge ruled that on the evidence the appropriate defence was
insanity not automatism. The appellant appealed.

Held: The appeal was dismissed. The trial judge was correct in only allowing
insanity to be put for the jury's consideration.
DEFENCE: CHILDREN

CHILDREN BELOW THE AGE OF 10

⇒ A child below the age of 10 cannot be convicted of a criminal

offence (Children and Young Persons Act 1933, section 50). This is an absolute
rule.

⇒ A child who commits a serious offence may be taken into care by the local
authority, but this is a civil, not criminal, matter.

A CHILD AGED 10 TO 14

⇒ A child between 10 and 14 can be convicted of a crime.

⇒ Section 34 of the Crime and Disorder Act 1998 abolished the common law
presumption that a child between 10 and 14 was doli incapax, meaning that a
child was not capable of committing a crime because he or she did not know the
difference between right and wrong.

Changes to legislation:

Children and Young Persons Act 1933, Section 50 is up to date with all changes
known to be in force on or before 03 December 2022. There are changes that may
be brought into force at a future date. Changes that have been made appear in
the content and are referenced with annotations.
View outstanding changesstatus warnings
50Age of criminal responsibility.
It shall be conclusively presumed that no child under the age of [F1ten] years can
be guilty of any offence.
Textual Amendments
F1Word substituted by Children and Young Persons Act 1963 (c. 37), s. 16(1)

Changes to legislation:
Crime and Disorder Act 1998, Section 34 is up to date with all changes known to
be in force on or before 03 December 2022. There are changes that may be
brought into force at a future date. Changes that have been made appear in the
content and are referenced with annotations.
View outstanding changesstatus warnings
34Abolition of rebuttable presumption that a child is doli incapax.
The rebuttable presumption of criminal law that a child aged 10 or over is
incapable of committing an offence is hereby abolished.
Commencement Information
I1S. 34 wholly in force; S. 34 not in force at Royal Assent see s. 121. In force at
30.9.1998 by S.I. 1998/2327, art. 2(1) (subject to savings in arts. 5-8)

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DEFENCE OF MISTAKE

⇒ It is in fact technically incorrect to see mistake as a special category of defence.

⇒ Rather a mistake can be a particular way of denying the defendant has mens

rea or asserting that the defendant has a defence, such as self-defence. Consider
these four examples:

1. The mistake negates mens rea → Anna was out shooting rabbits and saw
something in the bushes she thought was a rabbit and shot it. It was
actually Tom who she shot, and he died. Anna would have a defence of
 no mens rea to a charge of murder. Her mistake meant that she did not
have an intention to kill or cause grievous bodily harm to a person.
2. The mistake does not negagte mens rea → Eva is a terrorist. She shoots
Damien dead. Eva believes Damien is a government minister, but is
mistaken. Here Eva is guilty of murder, but her mistake did not negate
her mens rea (she did intend to kill a person).
3. The mistaken belief forms the basis of a defence → Liz mistakenly
believes Henry is about to attack her and so she stabs him dead. Liz will be
able to rely on the defence of self-defence.
4. A mistake of law provides no defence (ignorantia juris neminem
excusat) → Grace buys cannabis. She misunderstands an inaccurate news
report and believes it is no longer an offence to possess cannabis. She is
charged with possession of cannabis. It is no defence for her to claim that
she thought what she was doing was legal.
OMISSIONS CASES