Friday, 9 October 2020

Lecture 4

- The role of defences in criminal law is to take an action that is prima facie a crime
according to the basic ‘recipe’ or de nition in common law or statute, and create
an exemption because of the particular circumstances in which the action was
done.

- Some defences are said to be ‘justi cations’ for acting and some merely
‘excuses’ – we will examine the distinction in Semester 2: see the extract in
Essentials for an outline.

- In both cases if D has a defence the prosecution has not proved guilt: so C =
AR+MR-D

C = AR+MR-D: Types of Defences

- Types of defence under which D may commit the AR with MR but still not be
guilty:

- ‘General’ defences apply to a range of crimes, eg

- duress, which applies to all o ences except murder/attempted murder

- Self-defence applies where D uses force to protect self/another

- ‘Speci c’ Defences apply to a particular o ence/o ences under the same statute

- eg diminished responsibility is a defence only to murder

- A defence is said to be ‘Complete’ if D is exonerated – eg duress, self-defence or

‘Partial’ if D’s liability is merely reduced – eg diminished responsibility, loss of self-
control.

C = AR+MR-D: Role of Defences

- Thus all of the following will not be murder, but for di erent reasons:

- D res a gun aiming to kill V, but misses

- D, while hunting, accidentally shoots V dead

- when aiming to kill a deer

- D deliberately shoots V dead in order to stop V attacking him with a machete

1
fi
fi
ff
fi
fi
ff
ff
ff
 Friday, 9 October 2020

Locating AR MR and Defences

- The de nitions of o ences are not formally divided into AR, MR or defence, and it
may not be clear what role a particular element plays until the courts can interpret
the o ence to nd out:

- E.g. (1) a word like ‘possession’ in the Misuse of Drugs Act could mean (a) that D
must physically have the item or (b) that in addition to having it, he must also
have some awareness of doing so.
- Crime of strict liability
- The accepted interpretation (Lambert [2002] AC 545 per Lord Hope):

- “There are two elements to possession. There is the physical element and there is
the mental element.”

- E.g. (2) A word like ‘unlawful’ could mean (a) that exonerating circumstances of
which D is unaware render his conduct lawful (no AR) or (b) that he has a defence
if he is also aware of them (defence): consider the facts of Dadson 1850 3 Car &
Kir 148 in Activity 1.

- Categorisation into AR / MR / D provides us with a language and frame of

reference to facilitate analysis of di cult issues, even though the concepts have
no binding force.

Sample O ence: Criminal Damage Act 1971, s.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 such property would be destroyed or damaged shall be
guilty of an o ence’

- (Maximum penalty 10 years (s.4))

- Which elements are actus reus, which are mens rea and which are likely to be
defences?

- Destruction of property causes damage - actus rea

- Whether they intended to damage, prosecution has to prove at least recklessness

- mens rea

- Why start with the Criminal Damage Act 1971?

2
ff
fi
ff
ff
fi
ff

ffi
 Friday, 9 October 2020
- It is a good example of the ‘correspondence principle’ – the idea that mens
rea of a crime should extend to the whole actus reus –see R v Smith (DR)
[1974] 1 All ER 632. It fully complies with the idea ‘actus non facit reum nisi
mens sit rea’.

- A crime is termed ‘constructive’, and contravenes the correspondence

principle, if the mens rea falls short of the full actus. Many constructive
crimes exist – eg D may be guilty of murder if he kills intending really serious
injury, and of constructive manslaughter if he kills intending only a battery.

Actus reus - resolving problems of de nition

The CDA includes a de nition of ‘Property’ and ‘belonging to another’ in s.10 CDA
1971 but no de nition of ‘damage’ or ‘destroy’, so it is up to the courts to settle the
meaning.

- The everyday meanings of the words have been applied and at the margins it has
been said that there is a question of ‘fact and degree’ under which impairment
that entails e ort or cost to correct may be damage (eg eradicable gra ti : Roe v
Kingerlee [1986] Crim LR 735) but some trivial impairments may not be ( eg
spittle that can be wiped from a raincoat A (A juvenile) v R [1978] Crim LR 689 )

- If a cost or e ort is involved then thats capable of being regarded as damage.

Mens Rea - problems of de nition

- Liability for the s.1(1) o ence requires either intention or recklessness

- Intention is the more culpable state of mind, but the opportunity for the
prosecution to succeed by proving recklessness means that criminal damage is
often referred to as a crime ‘of’ recklessness: ie recklessness is the bare
minimum requirement

- Neither intention or recklessness is de ned. Why not?

‘Advertent’ and ‘Inadvertent’ Recklessness

- ‘Intention’ and ‘recklessness’ were intended as terms of art with a precise legal
meaning, the de nitions of which would appear in codifying legislation (this never
happened).

3
ff
ff
fi
fi
ff
fi
fi
fi
fi
ffi
 Friday, 9 October 2020
- ‘Recklessness’ was intended to mean the deliberate taking of an unreasonable
risk (as where D throws a stone realising that he might break a neighbour’s
window).

- The House of Lords in Caldwell [1982] AC 341 decided that under the ordinary
meaning of the word D was also reckless where he took such a risk if damage
was ‘obvious’ to the reasonable person (whether D realised it or not) – so losing
the element of awareness.

- RvG
- Two boys, aged 11 and 12, set re to newspapers and threw them under a large
plastic bin in a supermarket yard late at night. It appears that they thought the re
would burn itself out. In fact, the re took hold on the bin and spread to the
supermarket causing £1m of damage. Would the House of Lords hold them to be
guilty of damaging the supermarket?

- NB the age of criminal responsibility is currently 10: C&YPA 1933 as amended

- In G, Caldwell was overruled, and the intended meaning was restored. It was
inconsistent with the presumption of mens rea to convict the children if they were
unaware of the risk: “ … it is not clearly blameworthy to do something involving a
risk … if (for reasons other than self-induced intoxication) one genuinely does not
perceive the risk. Such a person may fairly be accused of stupidity or lack of
imagination, but neither of those failings should expose him to conviction of
serious crime or the risk of punishment.” (per Lord Bingham)

Recklesness: The current standard

- Thus the currently accepted meaning is:

- “A person acts recklessly … with respect to

- (i) a circumstance when he is aware of a risk that it exists or will exist and

- (ii) a result when he is aware of a risk that it will occur;

- and it is in the circumstances known to him, unreasonable to take the risk”

( Lord Bingham in R v G )

Arson: What makes this o ence more serious?

- Criminal Damage Act 1971, s.1(3)

4
ff
fi
fi
fi
 Friday, 9 October 2020
- An o ence committed under this section by destroying or damaging property by
re shall be charged as arson.

- (By s.4 the maximum penalty for s.1(1) is 10 years, for arson it is life).

‘Ulterior’ Intention/Recklessness - what makes this o ence more serious ?

- Criminal Damage Act 1971, s.1(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 such property or being reckless as to

whether any such 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 o ence.

- By s.4 maximum penalty is life imprisonment.

Lawful Excuse: S.5 Defence

- The s.1(1) o ence (though not the s.1(2) o ence) is subject to a speci c ‘lawful
excuse’ under s.5 CDA if

- (a) D believes that the person he believed to be entitled to consent had

consented, or would have done so had they known the circumstances or

- (b) D acted to protect property, or a right/interest in property, that he believed to

be in immediate need of protection, and believed that the means of protection
were reasonable in the circumstances

- (NB this is a paraphrase for brevity’s sake –refer to s.5 for the full version and see
s.5(3)- ‘it is immaterial whether a belief is justi ed or not if it is honestly held.’)

Lawful Excuse

- Smith Hogan & Ormerod (p.1084) comment that lawful excuse would in principle
seem to be open to D who blows up an oil re nery because he believes its
e uent is damaging his geraniums (see Unsworth [2010] EWHC 3037 (Admin),
describing the defence as ‘unusual in its width’).

5
fi
ffl
ff
ff
ff
ff
fi
fi
ff
fi
 Friday, 9 October 2020
- In Hunt (1977) 66 Cr App R 105, and in Hill & Hall (1988) 89 Cr App R 74 the CA
decided that whether an act was done ‘in order to’ protect property required an
objective test – whether the damage ‘could amount to’ something done to protect
property. A legitimate construction or an attempt to limit the width of the
defence?

Lawful Excuse and other defences

- S.5(5) CDA: ‘This section shall not be construed as casting doubt on any defence
recognised by law as a defence to criminal charges’

- Thus D charged with a s.1 o ence can rely on any ‘general defence’ that applies
to the case, as well as a speci c defence of lawful excuse under s.5.

- D charged with a s.1(2) o ence can rely on a general defence

6
ff
ff
fi